rx for the florist family and we request two minutes for a bottle very well yes or point out that douglas equally will be speaking third on her behalf he's most prepared to speak about the most recent designation issue regarding t p s and he has his own issues regarding asylum in his particular case i just want to point out that if this court agrees that under a matter of re s that unpublished b case certain initial requirements are not do not apply to children or spouses then this court can grant t p s to the children without ever having to tackle the imputation issue  the argument regarding matter of raises their case had to do with their saying it was a spouse not a child and nationality not having been continuously present but the principle pretty clear and the b i a recognize it precedential decision in unpublished cases it must explain if it wants take a contrary position later such as in the crew versus mccain's the case with a different issue where the p i had taken a position regarding some simply would like the court to continue its jurisprudence that it set out in cruise versus mckay's if there were the b i a makes certain positions in unpublished decisions it's not necessarily bound by it but should it reverse course later it must explain why it's reversing course from its previous unpublished decision so they're not bound by it but they can't irrationally reverse course in any and incoherent manner without at least explaining themselves t e has issues that seem the directly on point issues this case has in our opinion judgment days no they they have dealt with imputation in other areas of the immigration law and those decisions were very much rooted in this specific statute section had nothing to do with t p s so all in the broadest of senses have they had decisions in this area generally but nothing regarding imputation for s and by looking at the decisions that they have had such as matter of escobar they are very much looking at specific provisions for in that case l p r cancellation of removal none of these deal with a very different statute of t p s because with t p s congress has created an extraordinarily generous and protect they have benefit for family members and people from devastated countries if he is in get you where you want to get to what what is your strongest point should the court not agree with ray i stand there certainly is the imputation argument and there are many distinguishing factors a tween in this mr jan i'm sorry to interrupt you but family could not raise a number of the arguments that we are raising in this case the four circuits not have the full argument that's being raised here for example the survive family never even discussed augustine and the first circuit decided that the t p s area  was in some way barry much like what this court addressed in augustine what we're explaining in our opening brief in our reply brief is how this case is very different with the t p s statute from augustine ninth circuit which set out a approach that there must be some form of intent in the requirement being discussed we believe that would still allow us to prevail because the requirements in the specific statute for  comprehend or state of mind record and here's my explanation that's actually i agree with for you coming from but it looks specifically had let's look at the having continuously resided requirement it's actually not a residence requirement it's continuously resided and i'll show you the difference the difference is that within me i am a itself it says that this idea of continuously resided is not broken by a brief and casual trip outside the us so congress itself has said that in this little area of t p s continuous residence it's not nearly as in ramos barrios this one circuit case this mathematical reflection of physically where were you because you can have it even though you've been outside for some time a brief trip so it's really a marker for intense because after all the idea of taking a casual trip not breaking your presence is what where do you intend to be where do you intend to want to stay so there's a whole if there's a catastrophe there's a war if there's a hurricane and the people who are out of the country with those who are in the country we are going to send back if it's not best not the complete explanation of t p s because one of the main principles of t p s was not just what you're putting out that roth but also family then we turn to be sure what about their spouses and children and congress has said who are with who are who are not with them at that moment but congress has cast a protective net to include spouses and children also it's a separate is that you a we respectfully disagree with that limitation of it the main t p s portion is for certain group of people a very finite the find community and then t and now there's an extension of a broadening of the t p s just for a very small list of existing family members so it's not just about these people they've extended it to spouses and children so that is that is not the only concern there actually having a protective umbrella for spouses and children too but not any spouse and children children who come into this country after that yes it does our position is absolutely include spouses and children who come afterwards this idea of this lady p s is not merely to excuse those few children that fell asleep and forgot to apply within the time period there are so few of those it's actually a broader protective met to say it's not just anyone from that country they have to have a parent or a spouse who is here and fully qualifies but once you've got that then yes let's bring in these other people just as the b i a they not presidential decision said it's unequivocal that's the purpose let's let these spouses not believe so because they did not issue their decision in a presidential decision they do not claim that the statute is ambiguous such that it is in under chevron's step zero an area where deserves regarding the way as argument it's not ambiguous i thought in your briefing you say it's it's not in the us the government says it's not in the us but you present two different views of what it means it's funny that everyone think is not ambiguous but they believe it's a different up you say the opinions are not entitle which and one thing to take a look at is if you just don't give it give the any difference or that this is a plan to re review we believe they deserve no deference if the court would read the decisions they're actually a bit shocking in their lack of analysis for most of the three decisions it's just not something that's well reasoned or provides a coherent basis to restricted by statute and regulations disagree with that interpretation the statute it seems to me is is clear in s board of immigration appeals have the jurisdiction to take into account humanitarian considerations we believe that it does your honor their service the specific language in the statute which gives the decision maker discretion immigration appeals to take into account humanitarian considerations this if it only family reunification as it is a basis for allowing because it is what it is required to do that you are in so for the boat t good afternoon good afternoon it please the court my name is douglas equally and i represent petitioner roger reyes oliva his name appears in the caption as mr daley on the show i will hazard to address the court's questions with respect to the sort of obvious decision and the most recent designation first but i do have an asylum argument that i would like an opportunity to present very briefly simply put i think the  is quite clear that the congress in framing the t p s refer to designations in several different portions of the statute to include initial designation a term which it uses and extensions of designation are extended designations and the rule is and the reason for that is pretty clear as you can see in the most recent designation or extended designation of honduras the ninth time and to judge ross point the reasons for of extended designation namely you had a tropical depression sixteen other natural disasters in one thousand and two thousand i'm politically crisis which exacerbated the effects of the global economic worsen all of which led the attorney general or the secretary of the h s to include that the effective date of the most recent designation that the hundreds was incapable of temporarily to adequately handle the return of its with the legislative purpose behind the t p s statute it simply with it's harder if we accept your argument we will go against the decisions long time of the day and the attorney general not reason properly do you object to its treatment of our opinion and augustine i do not your honor and i'm not addressing the imputation issues in that in that decision i'm really talking about the construction of the statute and the accordance of the attorney general's position which i think is untenable that somehow it's appropriate under the statute to reach back and apply nine hundred ninety nine as the statutory cut off for any eligibility by one door and in this country not withstanding subsequent disasters occurring and notwithstanding his continued inability to hear argument if we accept your arguments or this only resolve the physical presence requirement you still have me continuous residence requirement yes your honor and if you accept my first argument radical though it may appear at that most recent designation includes extensions of designations or extended designations if the court accepts that then it logically follows that the attorney general upon providing notice of extended designation is required by statute to select a date no earlier than the notice but it could be a later date for purposes  a leave as the appeal there was a single judge deciding it but i don't think that if there is an agency decision however consistent applied over the years that inconsistently and misconstrues the lead the clear legislative wording and intent then it really is for this court to come in and correct and just it just the other the other the other reason this just is nonsensical is but his son is sent back into into us a state which the state department and that the h s have found to be inadequate and incapable of dealing with it does sound like a humanitarian concern you know just to get back to judge all deserves question about the continuous residency point subsection b c i can read this properly see to recall that in the with respect to the continuous presence it's the effective date as of the most recent designation with respect to the continuous desert residency it's a date determined by the attorney general that too is controlled by statute and the statute says the designation of  foreign state shall take effect upon the date of publication of the designation or such later date the reason for a later date for residence is someone may be physically present in the country but not yet established residence when a disaster befalls so that's why i say it logically e practice has been to provide a notice of extended designation which has all of the attributes of a new designation except the return the general reserves the date looking back to the original designation of the initial designation a term used in the statute as the control date for purposes of continuous residency and then they also equate pretty much continuous presence as well credible witness and determine that familiar racial relations constitute membership and social group for purposes of demonstrating one of the protected grounds under the i and a and although she feel found that he had a subjective fear of returning two hundred or so she concluded that he specifically calls out blood feuds involving members of one family killing members of another found evidence presented to the immigration didn't present any actual manifestation of this feud any killings lot show which reports that revenge killings and blood feuds are common in some parts of the country especially in the department of a lot so that's it see a three zero eight you have another report by a graduate student of berkeley also reporting that alonso department is  sort of lawlessness including blood feuds exists you have a blood feud in this particular family or these families that persisted for a number of years five murders of record most recent one thousand nine hundred nine and the question is whether or not those those conditions in the country in the home country provide a sufficient objective basis for the subject this credible subject of fear of persecution announced miss falk you it would be helpful to all of us that get to respond to the issues presented in this or yesterday i hope so good afternoon honors me please the court my name is of a pox are for the respondent the attorney general these three petitions for of you should be denied your honors for the simple reason that petitioners have not that they and in fact they can see that much as much but they're basically asking you to do is rewrite a very clear statutory scheme and the t p s program as you were mentioning judge is here to protect a discrete group of individuals and that group of individuals are people who are essentially stranded in this country by virtue of a natural disaster or civil war or some sort of a calamity and the statute very clearly spells out who can seek and be granted this type of protection which unfortunately does not include individuals who  here years after the calamity occurred i virtue of their late arrival they are not seeking protection from that calamity because the one in your years later what if there is a new calamity that causes the extension of the designation your honor if there is a brand new calamity the secretary of homeland security will designate again will be a new designation has that ever  happened not i think there was originally some issue with the voluntary departure with percentage preceded t p s for purposes of el salvador i think that's the closest that has occurred but the secretary schemas clear you have a designation and then extensions of that designation there's no designation and read designation in the statute very very clearly spelled out designation extension that's it and the federal register notices which the court relied on in survive on taiz which we definitely think you should follow because it's directly on point said the government has consistently in every t p s notice at issues  you have to meet the original physical presence and residence requirements because that that only makes sense in the context of this program if you are doesn't seem to make sense i was as you were started to say the people come to this country to get stranded in the meaning they can't get that but it also means that they're not here with their families their spouses or children is here not a vanity for that circumstance that is to unite the family i would say that stranded in some instances could include an entire family who stranded here certainly or individual good but i could talking about a family that's really the cause of the disaster right home country right well we don't see t p s as being a family unity type satchel or program but individuals may certainly go to the department of homeland security and ask for some sort of humanitarian consideration there is nothing barring any of these petitioners from going to the partner of homeland security and saying look we're not statutorily eligible we don't have any way to stay here can you do something for x y z reasons and you  for removal and the department of homeland security maybe could do that but that was the the remedy actually happens it does happen absolutely it does happen it didn't i saw as i know it hasn't happened here was i'm salaries says it's a matter for the board of immigration appeals that should have considered humanitarian factors no i'm respectfully we disagree the board of immigration appeals here is bound by the statute the statute doesn't say you consider humanitarian concerns except perhaps in the context inadmissible aliens for example an alien who has committed crimes these petitioners are not inadmissible for any of the reasons that would garner a humanitarian concern here in the board w correctly right it doesn't have the board doesn't have the ability to rewrite the statute so it's your position that humanitarian is directed to the petitioner himself or herself rather than to the family of the  exactly it's for the person who is themself trying for t p s and is inadmissible but perhaps could otherwise meet let's say the physical presence and residence requirement through the government appeal the decisions of the ninth circuit which essentially said that the most recent designation refers to the most recent extension not the original day for t p s status i'm sorry i mean i'm not the government appeal those ninth circuit decisions which said that most recent dave refers to the extension day i'm not aware of those decisions i'm not sure if you're talking about the imputation for purposes of residence decision oh i don't think the government did know but i'm i would have to get back to you on that to tell you truth your honor i'm not entirely sure but i will say that the ninth circuit in the in the barrios v holder case itself recognized there's a distinction here to be made between residence and domicile and this court and it actually mentioned its prior disagreement with this court in august and and and recognize that there is a difference between a statutory definition defined period of residence and imputed ation of for purposes of domicile that's where those cases split and here you have we are fortunate to have a very clear ways with the ninth circuit case is that imputed domicile and this court recognized as much in august and saw that there is this this difference between the definition of residence and the think that the attorney general's interpretation here for the purposes of t p s is reasonable just to address the other issues that were raised in terms of this unpublished board decision in race without even regard to issues of deference or no deference the race decision is apples and oranges for purposes of this case the race decision had to do with an  individual where nationality and the spouse or relationship was in question we don't know whether that individual otherwise met the physical presence and residence requirements which are at issue here so it's really the comparison is circuit precedent decision which even applying skidmore deference without the citing the issues that the attorney general and the department of homeland security have consistently applied this program and it's unfortunate the  qualify but congress has spoken as to who is going to apply who is going to be eligible to apply and get this form of temporary protection and unfortunately it's not these petitioners in the phrase most recent there's no authority for that i mean i don't necessarily see where that i understand that they would like to prevail and that's their argument to get there but i don't see any authority that says extension equals designation and in fact if you have statutory language that points out just the opposite i don't really see where we get there or why most recent as of nation as opposed to something like originators english well because this i think because the scheme contemplates a possibility that a country will require in the course of its history more than one designation has ever happened not to my knowledge your honor i do know that it's el salvador was given x and many residents of el salvador were given extended voluntary departure and then when the statute was amended they were given t p s but it certainly is possible that again a country could be designated at one time and then years down the road and that would be another designation and i don't see any authority for the proposition that extension equals designation i think that's basically rewriting the statute potentially but that's something that's designated by the department of homeland security and i'm not really qualified to speak to how bad the tropical depression had to have been in order to engender a new designation again that's something that's within the province of the permanent homeland security in conjunction with the country at the government of the country a issue if we should conclude that the department of homeland security has don't think again that it's it is properly within the province of the department of homeland security with in conjunction with the foreign governments request to be doing those nations as to the asylum claim of mr ray as i don't want to belabor the point but there is no his record does not compel the conclusion that he established a well founded fear of persecution and that's the only issue at play in this case at this time six he says no i guess it wasn't totally resolved one thousand nine hundred nine was the last murder he left the country six years later and didn't claim that any thing happened to him in those six years and i think also tellingly he testified he has seven brothers who remain in honduras in the exact as far as we know the exact location where this huge is supposed to be taking place and as far as we know no harm has bee fall on them other than one brother feels that his liberty has been circum struck circumscribed by fear of this feud and the fact that his dad told him to watch out that's all that we have and that evidence does not compel the conclusion that he's eligible that the petitioner is eligible for asylum he does claim that his particular area of this of us is prone to these kinds of feuds but a sort of general statement also isn't enough to get him there unless you're going to unless we're going to be saying that we need to grant asylum to everybody from this area who claims that his family is involved in some sort of feud which i don't think any of us are are prepared are prepared to do when the judge in the ninth held i think yesterday women from no comment your honor i will say though just crossed that this case didn't turn on the issue of is the government i mean we didn't even get here to the issue of the money and will which i assume is what the ninth circuit decided in that case that's really not at issue here it was not the ninth circuit it was a district judge within the night oh ok yeah in any event that that's really not the issue here i mean it wasn't  up i will say that the government believes that these three petitions for review should be denied petitioners are statutorily ineligible for the relief that they seek this court should follow saran days and not rewrite the statute and find that the board in these because you say that the phrase most recent nation is not ambiguous mr chances also but then you both come out with totally different meanings of what the phrase means sure which suggests to me that the phrases ambiguous you know what what level of deference should we give the underlying board opinions whether it's chevron or skidmore or no deference or we should look at this case and to review what is your your view on that well we think that it's chevron your honor we don't think the statute is ambiguous but i would not submit a brief that didn't cover the bases and say ok well even if it is ambiguous you need to defer if we go to chevron step two we're still talking about the deferring to the agency's reasonable interpretation so we absolutely think it's chevron deference you know as i mentioned this court has applied chevron deference even in august in which was the big case that was cited board's interpretation is reasonable so we think yes you should be applying chevron but we also think that even if there is some question apply apply skidmore and we'll get there to you and that's fine thank you i will try to limit myself to probably just very narrow points and if there's time mr equally may refer to their question about any basis for one of the extractions of the issue of most recent designation just a mechanical reflection of where someone is the government keeps pointing to this generic definition of residence for the entire i and the way they are not addressing how the very t p s section in the i in a explains continuously residing does not mean the same thing as this generic residence requirement elsewhere in the i and a t p s statute portion in the eye in a way it's not the same thing another point is that the government has portrayed that c p s statute as something that it does not deal with family unity so we shouldn't be talking about it that's actually an improper characterization of vastly improper characterization of t p s as we laid out in our opening one of the main purposes of t p s including one of the main things said by the congressman introducing it was family unity and that's the vision of bringing families together why would you allow spouses and children to apply if  but why create a whole structure to let spouses and children apply late if you're just thinking you can just stop that they could have just applied in the initial period you're really not you're helping hardly anybody by having this whole section just for those who could have gotten it right in the first place the whole thing's about family unity or just superfluous practically briefly the third point is that they mention to try to skate away from the re s decision that published a decision but they've never in any of their opposition briefs or today explain why it's ok to set aside this nationality requirement but you know you can't set aside this having been physically present requirement they don't offer any it's never been a debate or a discussion of t p s is going to expire or they're going to either extend it were designated a new one because we already have it it's all about when are they doing their usual extension for the ninth time or a full time and when they extend it they don't say yes there have been many recent disasters but we're choosing not to do when you designation this is not how it operates so they're trying to point to a theoretical possibility that no one is even considering it's just doesn't exist the suggestion that there is no authority for the equation of most recent designation with thank you just as ignition first legislative purpose second the use of the term most recent suggesting a repetitive form of designation and thirdly the statute itself under the rubric designation section twelve fifty four b includes a description of both initial the ignition because that initial designation and subsequent extensions of designations is there any legislative history were some that i could find one way or the other except that when i look at the way the attorney general has been extending designations for newly occurring disasters that certainly fits within the ambit of the legislative intent for the statute finally on the  younger brothers are with of the old this is is fourteen he has one older brother who is confined essentially to his home and his and his job because of his concern continuing concern for persecution or a thank you mr thank you thank you very much thanks to all coun arthur thank you very much mr challenges just that you want to judge your ideas i would like to have a transcript prepared of this excellent oral argument at the expense of the government