good morning your honors and may please the court and this is edward ramos some behalf of the plaintiff appellants there are a number of textural and structural reasons why the statutory framework at issue in this case does not require that the spouses and children  of e five investors use up the annual allotment of the five isas and i hope to discuss a few of those in my time this morning but with the court's permission i'd st like to focus on our a p a notice and comment argument because we think that may provide actually the easiest basis for the court to decide this case the a p a requires agencies to promulgate legislative rules to notice and comment and the state department here violated that requirement by adopting its policy of counting spouses and children of eighty five dollars investors without going through the the appropriate notice and comment procedures now the government claims that it did in fact promulgated policy through notice and comment in and points to a regulation twenty two c f r forty two point three two but if you look at the text of that regulation your honour's will see that that regulation doesn't address the critical counting question at the heart of this case  e two which is a provision that deals with the spouses and children of investors describes those spouses and children as receiving their status quote pursuant to section two of three d which is the equivalent of  foreign affairs manual on the other hand and cite the foreign affairs manual provision it has fifty of the blue grease and that provision very clearly announces the counting policy it says in no uncertain terms  derivative is quote counts against the numerical limits but the problem of course is that the foreign affairs manual is not a regulation it was not promulgated to the notice in common procedures and the public had no opportunity unambiguous sleep prohibits the counting of derivatives or with the government's position then there wouldn't be any occasion to reach d p a question because the statute would dictate the the only the only way that the agency could do it status corresponding to the classification of the beneficiary of the petition what does that mean to you does that mean that they're getting an status you know referring to the particular classification and i think the reason that it may refer to the status corresponding to that classification is that there actually are are two different forms of lawful permanent residency you have lawful permanent resident status on the one hand and then for eighty five investors and certain spouses you have this in a lawful permanent residence and so our view is that status refers to not to the particular corresponding to the classification of your principal to pick up because some extra words there if your course not or the principal and you don't otherwise have a status that your theory has to be they otherwise do have an independent status separate from the structurally if you don't aren't otherwise entitled to an immigrant status so you have no independent i think that language to me means and tell me what i'm reading it wrong i have no independent source for my status to come into or remain in the united states and so i will write another rivet of status i have no independent mind i'll have to have a derivative status i mean to derive from somebody else and then the regulation of the statute does a same thing as what i'm going to derive is the same in our view in our view status refers to lawful permanent resident resident status or conditional lawful permanent resident status and the point about if not have that status you have to have the visa i don't know how you can separate that out from the b s and that's a of these different employment based and family based preference categories lead to one of two statuses either lawful permanent resident status or conditional lawful permanent resident status and our principal contention your honor is that  status more naturally refers to either one either of those two status is conditional lawful permanent residency or lawful permanent residency rather than the particular classification no i understand that that part of your argument i'm asking is how how you get there because that's what central to your argument is how do you get to that status if you are a family member child a family member i mean a family member for shorthand if your family or how do you get to that status  you don't have an independent source of obtaining a visa and getting the status i don't care what the condition or not for these purposes you know right no i mean back on someone else the principal right i independent source it's a piggyback and source is a derivative source and so why isn't the natural language quickly so the word classification here this regulation doing the work of the government says  spouse or child they have to their there that same status but by virtue of their relationship to the five investor but but that doesn't mean that they obtain the feast under section eleven just a treaty five and application form which requires you to check a box for which type of visa you're painting including one of those options is employment the b five and so when the spouse filled out factually the weight because the state department takes the position that spouses and children obtain their status under the under the e p five classification i think that's correct as a matter of fact i think under our reading of the statute think the answer is yes but as a matter of the statute i don't i'm not aware of any statutory provision that requires that the visa itself indicate the particular status and our position is that under the best reading of the statutory  the visa is issued under the derivatives provision rather than than the chapt evie five section and if i could point the court just to one reason moving to the statutory argument very briefly because i see  running short on time the congress when it wanted to explicitly require the counting of derivatives knew exactly how to do that and i think if you look at the one thousand nine hundred and eighty refugee act you'll see that contrast very clearly the one thousand nine hundred and eighty refugee act borrowed language that was virtually identical to the derivatives provision at issue here it was in a separate section an independent section that was not subject to the worldwide limits on refugee admissions and yet it included an express sentence there that the spouses and children of refugees count against the limits and that's exactly the language that it was before the nine hundred and eighty refugee act yes with when they added that language were they changing something were they doing carry forward what they were doing before that with respect to record your honor i'm i don't know the answer to that your honor i'm sorry i don't know the practice before ninet struck if we accept the reasoning of everything you brief with regard to the reg with regard to statute everything is it possible to confine it just to evie five your honor we don't take a position one way or the other on that question and let me and i'm let let me let me tell you why i ask i think i'm assume for the moment that i think there's some force to your argument but its consequences seem huge if it's not confined to the besides or at least confine the easy one to iraq so tell me is there a way to limit it to at least limit it to just the employment based category theory for how it could be limited to the five categories but i would point to a few features of the five program that i think could could provide perhaps a basis for distinguishing it one is the job creation and the economic growth function of the five program and and in other words the eighty five dollars program is unique in the sense that it's really was structured to try to generate jobs and generate economic growth in the united states and it would  be strange to think that congress would have been tended to lose that job creation and economic growth potential simply by virtue of the happenstance of the number of bosses and children that happened to tag along with the investors and there's also some language that specific to the five program in particular the provision for for removal of conditions for eighty five investors two years after they enter the united states they have to file a petition to remove conditions and that statute distinguishes investors obtaining status quote under section one thousand one hundred and fifty three b five and then on the other hand it describes their children spouses and children as quote obtaining status by by virtue of being a spouse or child and but but to answer you i think your honour's law or your honour's larger sort of floodgates question particularly if the court were to rule on the a p a ground it would be open to the government to promulgated its counting policy through notice and comment and the state department has been known to to quickly promulgated interim final rules and we don't see any reason at this juncture white couldn't do that in this case if they believe that this was the better reading of the statute and so in the statute then i think we would be forced their president their position is that it's not ambiguous in this regard and so anyone who is in the three which can't be confined to that this statute mandates set out but i but if i were to i mean i think we have to acknowledge for example that the word status if there were going to be ambiguity in this in the statute i think it would turn on the word status because the word status  occasion our contention is that the better reading is that it refers to that it refers to lawful permanent resident status or conditional lawful permanent resident status and if the court were to find that that was in fact ambiguous then i think we you don't think is correct and that the government doesn't think so the only way to reach any of the notice and comment regulatory somewhat narrow consequences is to adopt an interpretation of the statute that no party in the case actually agrees with the a p i want to be clear that the v p notice and comment argument although it's not our principal argument is it's a fallback position that if if the court rejects our principle contention that the statute unambiguous lee requires to spouses or prohibits the government from counting spouses and children against the limits then that at a minimum we believe there's ambiguity and in that case  a notice and comment argument texan and i just want to clarify one more thing because i was i think i was just confused it sounded to me from your reply brief that you agree position and if i could clarify our position on the per country limits there's no question that the per country limits cover some spouses and children because there are specific to the government points out there are there are charges billeted provisions that  talk about how spouses and children should be counted against the per country limits in cases where there are different nationalities but those spouses and children are not the spouses and children of the five investors or their this their certain include the actual the actual principal category is defined to include the immigrant spouse and children and so those are the spouses and children that are covered by the per country i'd like to start with the statutes texas structure and i confess i'm a little confused about the last answer mr ramos gave to judge millette i believe he said that they think that the derivative visa applicants or i think the says exclusive of aliens described in subsection b aliens born in a foreign state or dependent area who may be issued of these or may otherwise acquire status as a lawful permanent resident are limited to and then a one is family sponsored immigrant a two is employment based immigrants and a three is the new category of diversity immigrants b include some exceptions the most notable relatives of u s citizens and some special immigrants and then  fifty one dollars c sets forward the numerical limitations that the title is referring to for family sponsored immigrants and then d sets forward the world wide limitation for employment based immigrants it he's agreeing number and that nd number equates mathematically to left over family based immigrant so if the family based demand for family based immigrants does not meet the four hundred and eighty thousand cap in a given year those left over from that year are added to employment based for the next year sort of circular because if employment based doesn't hit it the left over are added my understanding is it almost never happens if there's left over so that's why i'm just keeping the one hundred and forty for purposes of of clarity but that one hundred and forty it is then be taking it from one of those percentages categories naturally that would be from the be five percentage category i think if i can step back this meets architectural and structural argument historically since  congress has limited with a quota system the number of immigrants entering the united states and in the i n a the immigration nationality act of one thousand and sixty five it set a maximum cap in eleven billion five hundred and fifty three a and a one through six set out or eighty one through seven set out a number of categories and percentages eight was a catchall and then nine was the exact same language for treatment of spouses and children a company or fall into join saying immigrant visas are limited to family sponsor employment based and the new diversity category with certain exceptions if they had intended to have an one thousand one hundred and fifty three dollars d diversity or derivative these that was of you know immigrant visas are limited to family sponsored employment based diversity and then a derivative but they didn't do either of those things they kept the same language that they had specifying those immigrants it'll come in under that provision b is employment based immigrant specifying the immigrants that are coming under that provision and c is diversity immigrants d is treatment of family members it's not derivative immigrants or some new category of immigrants so it repeats the prior language and i would note that if we noted two bills in our in a footnote to our brief congress has multiple times exact language from the border security economic opportunity and modernization act of two thousand and thirteen site in our brief the language would have been to add to a lengthy one be a new category titled h derivative beneficiaries as described in section two or three d of employment based immigrants under section two a three b so that would have been a specific way to have exempted only employment based immigrants from the world white caps but congress didn't it didn't  back to the broader structure in the one thousand nine hundred and ninety act congress took the worldwide level of immigration from two hundred and seventy thousand immigrant visas to three categories four hundred and eighteen zero family based immigrant rhesus one hundred and forty thousand employment based immigrant he says and fifty five thousand diversity based immigrants he says so it increased the world by level from two hundred and seventy thousand and two about six hundred and seventy five thousand if it had created an uncapped category of using the math that the conference committee used when they were comparing the house bill which didn't count derivatives to the senate bill the conference committees math was that the house bill had seventy five thousand principal and employer based world by level of immigration from two hundred and seventy billion two million six hundred and seventy five thousand in these three categories but also created an uncapped category that expected to include one million twelve thousand five hundred using that one  derivative immigrants but it was silent about this category of eleven million and it didn't even include that category of one million in the exempted one thousand one hundred and fifty one b thank you about their argument about the refugee act and how it nine the derivative provision from one thousand you became eight it took out a seven and created a new statute with a new cap so refugees were previously taking immigrant leases under the cap of two hundred and seventy thousand now they were taking them under this new separate statute and statutory structure and so they are they did choose to note that they were including them but one of the reasons may have been because a derivative a spouse or child a refugee saying that the cuban refugees again would not you know take out from a having a refugee camp that was coming out of the worldwide limit of to seventy so i think in creating this new refugee structure congress did choose to n there but in looking at the treatment of world wide caps and the treatment of derivatives under one thousand one hundred and fifty three dollars we think that when congress repeated the same language and moved it to a new deception treatment of family members and didn't create it didn't mean to conforming amendments and so it was conforming to the prior you know use of language relating to a derivative spouses if i could also highlight in response to the other statues they point to in their reply brief  you know they are correct that congress has created other statutes that allow you to get immigrant status that's not that aren't least three family based it's cetera in one thousand one hundred and fifty one dollars a but when it does so congress includes bailable and then says the secretary of state shall not be required traduce the number of immigrant visas authorized to be issued under any provision of the immigration nationality act to offset adjustment of status of an alien who has been a last minute for permanent residence pursuant to the section and it uses carr reduce the number of diversity pieces available from fifty five million two hundred and fifty thousand and two account for these new refugees that were going to be available under that act and also reduced by five thousand the number of pieces available under eleven th three which i think isn't a skilled labor section i'm not sure which one but that just gets to the point that when congress is choosing to create immigrant visa categories that aren't eleven if you want a b and c it's usually sets a specific toward construction principles but you know we're basing together a lot of different statutes here and maybe the piecing together is ultimately right for one side or the that's our wheel house let's explain to you why we're doing this so what about their argument at a minimum here if you're adopting this interpretation and if it's to be deemed reasonable and  deference it should have promulgated a regulation and you didn't so your honor i would have two responses so that the st and i'll get to the regulation but the st is that we think that this is clear from the statute and as you said i twenty two c i'll do if i can walk through that briefly with you and i'll take a quick drink if you don't mind i know my time is i one hundred and forty employment based pieces for employment based immigrants in a fiscal year shall be a lot of pieces as indicated below so if the regulation tells us that that one hundred and forty thousand dollars pool are being a lot of to these people in these categories indicated below and so we think that's very plain that if they're counting towards one hundred and forty dollars and as you were discussing with my friend on the other side and i apologize i didn't stop at the red light to ask if i could proceed section which is eleven fifty three dollars b and plant based emirates seven point one percent of the overall one hundred and forty thousand dollars or as it comes to now nine thousand nine hundred and sixty dollars the people taking up those one thousand nine hundred and sixty pieces are entitled to corresponding to the classification e b five and the priority date of the beneficiary of the petition so we think the regulation is very clear that this is a regulation for those subject to the world wide cap for employment based immigrants and here can say for immigrant he says i confess i didn't look at the language for nonimmigrant pieces but you know the one thousand nine hundred act when it structured these things with a as we read a setting for three categories of those are where the immigrant visas come from unless you're exempt the state department can't add to be unless it was later given statutory authority i've seen no statutory authority and so i'm not aware of any i know i'm in the red light if i can make two brief points but if the court  mister classification and priority me refer to status in line and the type of visa and there's no doubt that when it comes to classification and priority extra language that family members aren't some th category of visas there's there stanley based there's  employment and there's diversity there's no th branch of this so if you're getting if you're if you fall under this and you're going to get classified and prioritized along with your place in line and your type of visa doesn't tell us anything about how we count and sort of figure out how we count to you it was clear in the one thousand nine hundred and sixty five act because the counting flowed from your placement under a provision stating that you were subject to the ins numerical limitations so that's how we knew and then congress in and ninety changed they kept the text in terms of describing you but they i'm coupled it from the placement under that provision to me that at least strongly suggests that when it comes to counting something changed because the only thing that was getting you counted before was your placement under the kind of catch all and now we look at the plain text without a kind of catchall umbrella that was above it and the plain text talks about an e p five qualified immigrant and someone engaging in a new commercial enterprise investing capital i mean if you're a two year old child and you're not investing a one million dollars in creating jobs so tell me why that's wrong so george walker i would make a couple of points the be may or may not be an exhaustive list of aliens not subject to direct numerical limitations you want it to be considered an exhaustive list so you've got to explain to me why you think it is you not to now but at some point  so can i start with two points on that as i try i think i discussed or made clear in response to the stature cited at page twelve of their brief or their reply brief when congress did create a new new means for immigrant visas that wasn't included in eleven if you want to had language saying this isn't subject to the caps anywhere in the eye any and all of those statutes making clear it was doing that later with some other provision but at the time it enacted  glover i'm reading that not as referring to how we count them but i'm really i'm reading that referring to where we put them in line and what type of visa we give them and if i'm wrong about that tell me why but so that tells us that and then when you go to a level fifty three dollars and you look at the the caps for evie one in eighty two dollars an e p three and a before any b five that adds up to one hundred percent of the one hundred and forty dollars employment based pieces available so if they aren't going to be counted under their principles category they would i guess be counted you know towards the one hundred and forty but they might just be blocked out entirely and that wouldn't give them the same order of priority in order to give the same order of priority you have to put them in the line in the employment based immigrant risa category with their principal and so if they if they are subject the world by limitations but they don't have a set aside percentage and the percentage for all of the sections adds up to one hundred for both the family based and the employment based then derivatives would be getting not the same status and not the same order of priority order of consideration they would lose because they would only get whatever's left over and i think you know that for the diversity visa applicants it's a little more str there you just have a single limited fifty thousand number and so i think that's where one thousand one hundred and fifty one working together with a love fifty three makes clear that you're taking from this world wide limit of pieces and they've all been a lot and if you look at what you meant i just meant that the numbers for diversity are a little bit easier simply because you know one thousand one hundred and fifty three c and d which set out the worldwide numbers for family based and employment base it has that sort of circular feedback of  sorry and another point congress just doesn't hide elephants and mouse holes and so again using the math that the conference committee interpreted their reading as creating one million about one million twelve thousand five hundred uncounte pieces and if you look at the legislative history and i scoured the i tried to find any legislate mystery really talking about derivatives and all i could find was a committee report citation which i can get you but was about the previous his preference which is siblings of lawful permanent residents that that category was oversubscribed for a number of countries and the one of the examples given was i believe korea and the philippines the principles were less than fifty percent of the people and so maybe they should revise that category to only allow unmarried siblings so that you wouldn't have to remain is because the categorise oversubscribed but i was not able to find any discussion of the desire to create an uncapped category of derivatives and congress has been clear since then in creating new categories of immigrant  means of getting an immigrant visa they set caps that use caps and they're clear when they're exempting you from the numbers in one thousand one hundred and fifty one and so we just don't think that it hid this elephant or this herd of elephants in a mouse hole because that's a and that was in the sixty five act is the reason that it couldn't have been done in the or is it just that i mean i know your argument is that even though it's not there in the distill naturally as objects to the caps because of all the structural arguments that you've been can make a couple of points in the original a the prefatory language just before was before all of these provisions and because they stand split out and b and c they replaced it and each of those i think congress could have taken the treatment of derivatives and placed it at the end of a and the end of being at the end of c sort of repeated it in those three places it didn't i think if you put the preparatory language at the start of its preference allocation for but then you would need to you know i guess because each of them are talking about a category of immigrants an th if you want a they're repeating the language family sponsor immigrants into a one c which is a level one sees sort of family sponsored numerical limitation and b so the d would have said you know something like allocation for immigrants for family sponsored employment base and derivative who it would have required changing i don't know a clear way you could have repeated the identical prefatory language because you're talking about people who are getting their piece is subject to three different new categories and i suppose they could have been eleven if you want a added de a new category of pieces and then put here some preparatory language saying but you shall be limited to the capture of your principal or some differently worded but the predatory language as it was included i don't think allows or it isn't easily converted there and i would just reemphasize that when they were placing d they did it in this section one hundred and sixty two of the one thousand nine hundred and ninety act of conforming amendments it's also where they place the order of operations and i think i hit on this but the order of operations really only makes sense if you're getting in line with your principal in line you know towards a number system not if you're getting an a number because then immediately when your principle of tense and he said you can have the same status so immediately you know there be no reason to continue with that order of point about the regulation and i heard my my colleague mentioned that the structure of the regulation affectively mirrors the structure of the one thousand nine hundred and sixty five act and i think that's significant because what it means is that the state department never grappled with the structural change of the one thousand nine hundred and ninety act in other words if what they were doing in the regulation is simply replicating the structure that existed before that structural change then that's pretty conclusive status corresponding to the classification you know it at section forty two point three three eat two and the status if what the regulation meant is just to of the same stuff same classification they could have just said derivatives obtain the same classification but instead they say say a derivative status corresponding to the classification and that indicates that's consistent with our reading six for over eight years the executive branch misapplied the counting policy excuse me misapplied that statute by counting the cubans against a worldwide limits and it was only after eight years that the office of legal counsel in the justice department took a nd look at this and realized you know what we were wrong to count them against a world wide limits and they say they stopped counting them and there was litigation over that and the history of that is in a case called soul of the deep bell it's at six o five  and seventy eight and that just that shows two things one that the executive branch can make mistakes in the implementation of these complex provisions and the other is that congress doesn't always step in to fix these problems st argument i think you were saying that spouses and kids count toward her country caps but not toward world wide caps is that your position it's close to that your honor our position is that the e v five  spouses and children of evie five investors count against neither the worldwide limits or the per country limits there are some categories of spouses and children particularly of the th preference special apologize they are essential positions in fact the opposite that they don't come and your reply brief page thirteen footnote two says derivatives are directly limited by the worldwide what we mean by that and i apologize if that's not clear is that there indirectly subjects of the world wide limits only in the sense that the principles are subject to the world wide limits that was a response that is or threatens i'm going to read it to you as derivatives are are you saying they are are they or are they not directly limited by the worldwide levels there they are only in the sense that derivatives obtained their status by virtue of a principle so i was confused i am i apologize your honour's i our position is that the spouses and children of the five investors do not expend visa numbers but they are limited in the sense that they rely on the family members themselves are subject to no limit right that's correct your honor that your position in district court yes your hon ultimate where we ultimately ended up on the per country limits is that even five spouses and children do do not count against our country limit set the person tree limb a ninety four this is a district court decision