right our second case for this morning is no doz against lynch and we'll hear from ms shanley when you're ready please the court alexander shall or the petitioner legal standards matter both before this court and before the board of immigration appeals we ask this court to consider the appropriate legal standards governing waivers of in the miss ability congress expressed a standard eleven eighty two h one b extreme hardship the attorney general had no authority to rewrite that standard using its discretion under age two i don't see how he did or she did because the standard for violent or dangerous crimes applies to a premier or subset of people covered by each one crime that's correct and so what's wrong with having this more demanding standard to say this is how we're going to exercise her discretion in this subset of particularly problematic dealings the problem with that character that regulation your honor is that it disclaims the attorney general's ability to consider the congressional standard extreme hardship as a part of its discretionary analysis  so in effect the heightened standard as applied to violent and dangerous criminals under age two the attorney general cannot consider extreme hardship the congressional standard as applied to that s journalist supposed to use your discretion that's correct and we don't usually don't criticize agencies for trying to articulate or channel that description through regulations really that's right and we would agree that the attorney general absolutely enjoys broad discretion to enact regulations defining our supplementing congressional standards however in this particular case the standard replaces the extreme hardship standard in h one b with that except that the attorney general herself doesn't think that it does nor have the other circuits taken that position i think they've seen the extreme hardship language in the statute to to create a pool of cases you know there are a bunch of let's assume some number of people can show extreme hardship they're all eligible for an exercise of discretion but the attorney general is saying actually i'm only going to express it could exercise my discretion if in addition to being extreme hardship it's somehow out of the ordinary you know it's exceptional it's unusual you know kind of groping for words to get this so they're going to be some people who have extreme hardship but it's run of the mill extreme hardship you know if you will i'm going to leave my children or you know everybody will descend into poverty or things like that that do happen when there is removal but the attorney general is saying i'm going to  discretion only if this factor is shown not and she also is saying her griefs here at least that it's not the only factor but it doesn't seem to have been here but i don't know unless you have said you have told judge hamilton that you don't think she could say for example even if it's extreme hardship i'm simply not going to exercise my discretion for somebody who you are a murderer somebody who has committed you know repeated frauds against people or or whatever some some extra undesirable trait so so i don't know i  think it's our job to try to see if the attorney general's regulation can stand and i think i would agree with that your honor i would say however that the age to discretion asking for a heightened or a review of a petition under a heightened standard now as far as any review under the congressional standard what if the attorney general had never issued the regulation but in her mind you know was exercising discretion only if the person could actually also show that the hardship was exceptional and you or setting better i'm not sure that that's better your honor however in that case perhaps that would just be the attorney general exercising a definition for extreme hardship and i think in this case to create a different standard does not define the congressional standard it replaces it so you don't think there's any set of cases where somebody has shown extreme hardship  not exceptional and unusual and so they get turned down because they can't show this higher i think there have been cases that have so held i would still say however that in effect  heightened standard as applied to violent and dangerous offenders disclaims or prevents the attorney general from considering the congressional standard with respect to the petitioner the could live with each one standard applies pretty broadly correct yes would it would apply for example to crimes involving moral turpitude that's correct which would include writing a bad check right and it's a fairly low standard right and so i guess one i'm still just having trouble understanding what's wrong with the attorney general saying well out of all of these aliens who have a wide range of types of criminal histories here in the united states  we're in cases of extreme hardship i can exercise discretion i'm going to raise the bar as congress has invited me to for this particular subset of violent and dangerous criminals and i think that the attorney general would enjoy applies only to cases involving violent or dangerous crimes you wouldn't think that somebody passes bad checks is a violent or dangerous criminal they're not doing something it's good that they tend to not be violent  dangerous so why not have a higher standard why is that an abuse of the discretion congress gave her the abuse in this particular is only with respect to this particular regulation the problem is that what although the attorney general under age two does have discretion to enact regulations to define how it exercises its discretion the attorney general cannot rewrite one of the congressional standards using that discretion  agree with you on that i think the only thing we don't know if we're exploring is whether in fact that's what she did she read right or did she take a broad criterion extreme hardship and then start to break it down and say well you know for the czech writers maybe that's all that's necessary but for the violent people you know i'm going to look for something more compelling before exercise my discretion and you know is she trying to somehow structure her exercise discretion i think she is attempting to structure her exercise of discretion however the way that she has done it goes against what congress has authorized and this area and i don't think that it's saved by the fact that the attorney general applied it specifically and this regulation to violent and dangerous offenders i think it's still problematic because congress issued the extreme hardship standard without defining beyond what eleven eighty two h one it does not narrow to certain classes of applicants and i don't think that the attorney general could do that and apply a heightened standard where congress spoke so maybe you should talk a little bit about our case that case or its holding we believe government government counsel asked this court to extend ali to apply to this scenario which involves a different statute to put it most simply i suppose the statute at issue poly did not contain a hardship standard whatsoever so there was no issue of rewriting or substituting a standard that congress for required and that is different than in this case where of course there is a hardship standard which congress requires i'm not sure if the grounds for inadmissibility for a refugee are broader in that there isn't this hardship idea why that doesn't suggest that a heightened standard is actually more appropriate to twelve h cases which are people who committed a crime again it's a narrow position that we take that in this particular case this is the one thing attorney general could not do was to apply a standard different than the one that congress set for the attorney general could have done many things i suppose and it's been a proper exercise of its discretion because plainly it does have broad discretion but in this particular case it rewrote a standard it should not have done that and i think that the board's opinion in this case illustrates the problems with it whether it goes to those does it seem sensible to you that the seriousness of discretion and which leads me i think to talk about perhaps the board's opinion a little more specifically we argue whether or not this court or assuming that this court deems the regulation at issue valid the board still misapplied it in its opinion the board wrote that mr cisneros was ineligible for a waiver because he did not show the heightened standards at the very least the seems to be a red flag that the board conflated the two step but regulation procedure that it i believe that harm that the error is not harmless because under this opinion we can't tell what weight if any the board gave to mr cisneros is extreme hardship showing and further the board gave additional errors in its opinion most notably a left out material facts from its analysis that this court has held as legal air under its opinion and champion beholder and on that point the board refers here although the respondent has several notable equities the negative factors in his case far outweigh the positive what do you feel what notable equities do you think the board was talking about here given that it was reviewing a decision by an immigration judge granting sentence i think that it's it's troubling that the immigration judge considering those same factors came out differently and i think that the board's opinion ignored those factors which merited a favorable waiver or what were the say at least to that particular point that he was away from them so often missis's narrow sir his ex wife molest us narrows testified that even when he was away he always made efforts to come visit during his time in rehab he would always come during amir please the court in runs and you for the attorney general petitioner raises various arguments in this appeal but the primary the core challenge of their appeal is that the regulatory hardship standard twelve twelve point seven is inconsistent with the hardship standard in section two twelve age of the i and a now subject of course to this panel's questions that is the challenge that i plan to focus primarily on today and i have a few points to make about heard about the additional challenges now looking at the validity of the regulation starting with the statute that this is this panel's questions just made clear section two twelve age makes very clear that an individual can become can become eligible for exercise but the attorney general's discretion if they can show extreme hardship a qualifying relative and that's it to twelve h one but the statute at two twelve age two makes very clear that it is the attorney general who then ultimately exercise this complete and broad discretion to actually decide the waiver and importantly to set the standards that apply in exercising that discretion so who's going to get it to twelve h one waiver who hasn't experienced exceptional and extremely unusual hardship who is going to you're on well so a couple things first of all at the two twelve age one stage there's there's a couple different ways to even become eligible extreme hardship is just one that's two twelve h one b that's the one that's at issue in this case under two twelve h one ed there's the what's called the rehab waiver some is crime is more than fifteen years old so those people if they have not been subject to the higher hardship standard would not unless there are some other discretionary factor that will weigh against them they would not even be  subject to the heightened hardship standard even in this case if you provide this to twelve h one b the one that issue here if there's no valinor dangerous crime and extreme harsh hardships and puts you in the field of play as you described it it brings you within the pool of applicants but that still just subjects you to the attorney general's broad discretionary decision as to whether to apply the web or not no i mean i guess what i'm trying to explore and i just need to be reassured is that there is a meaningful difference because if this is really just a backhanded way of saying that the attorney general is always going to require exceptional and extremely unusual hardship to i suppose the us citizen family members or others then that would cause me concern because the statute doesn't adopt that requirement and it's a requirement of extreme hardship is not the same thing as i said a minute ago as a requirement of unusual hardship no that's that's certainly true honor and and i apologize perhaps the better and more direct answer is well first of all it's only for that subset of criminals and i think as judge hamilton violent or danger of violent or dangerous so i think and so you will never see an analysis you should not see an analysis of the board's decision that applies that heightened standard without first finding that a crime has been subjected to that analysis and found to be valid or dangerous and that was the entire purpose and that's a purpose by the way that this court has upheld and the petitioner i don't believe disputes here that a heightened waiver standard for violent or dangerous criminals is rationally related to a national immigration policy of not admitting aliens who pose a danger to society that's beyond dispute and of course underneath all of this has to be i suppose considered what falls within the scope of the term aggravated felony it's actually expanded quite a bit over the years follow it's pretty fast i suppose aggravated felonies includ what the drug crimes of moral turpitude the violent crimes right now right but that right and that's a remove ability ground here your honor but what brought what brought mistresses near us under the what what seeking here so that same crime had to up to a consequence for bank robbery that's not been checking not the misrepresentation of right here but this is a bank robbery that's exactly right and that's where he says you really need to look at the facts of this bank robber some kind of bank robbery it's actually non threatening which is you know may be a stretch but if there is a bank robbery did not threaten he seems to of wandered in the bank from his bicycle impaired by alcohol gets seventy dollars and wanders back out again so it doesn't seem that bad no guns no nothing you're on your honor that's true in the in the board frankly consider that i think the challenge specifically would push a petition or makes here is that if you look at all these automatically is violent or dangerous because there's always a potential of something going on right that's exactly right and what he's saying is you know if the board is going to reserve the right to look at all the facts and circumstances which it seems to have done then look at the facts circumstances of my case this man was it and so if you can't get to violent or dangerous you don't get to trial twelve point seven right that's right your honor but but respectfully with your premise the board has reserved the discretion and circumstances test in fact some of the authorities very clearly to the extent they say anything see that a categorical analysis is all that is required you can look to the elements of the offense and if that leads you to the conclusion that a crime is down or dangerous that is more than enough and i think the word hasn't ever nailed itself down the mean we we went through this for years before the johnson case was decided trying to decide whether various crimes were categorically crimes of violence or were they not crimes of violence and back and forth we went using the categorical approach the board doesn't say that it's taking the categorical approach it doesn't say it's taking it's sort of take whichever approach it feels like taking on under the circumstances which is a little troublesome  want why isn't that in all the facts and circumstances approach that he should have gotten the benefit of well your honor there's a little bit of a different determination here when you talk about a pure discretionary determination as to what whether crimes of honor dangerous again the reason i keep getting back to the discretion is because it's in a very important starting point in which to understand what exactly that is the attorney general describe defining here and how they're defining it and for what purpose well i understand that but let me the be be a little bit specific  an adequate circumstance and an adequate consideration of the nature of refugees crime so i don't even know what that means it's not facts and if it's not categorical i think the point in that case you is that to make your either one of them can work so long as it considers it's not that neither one of them should be applied in something else altogether but it's that no particular methodology is required and this court has upheld that exact approach by the way in what i think is a helpful an ogy which is the particular serious crime determination that would disqualify an alien from applying for asylum or withholding of removal sometimes a crime is an aggravated felony until per se disqualify you from asylum or negative felony with the sentence of five years which will per se disqualify you from the cold removal short of those things though it is up to the agency to define whether a crime is particular serious and in doing so this court and the board have time and again said that no particular test is required  exactly the sentence he is quoted from stuff like i believe that is exactly what the this court in the board have said in in the context of particular serious crime terminations because it is committed to the attorney general's discretion and one of the problems is that the rich categor kind of never ending deep dive into into details that may or may not be available so there are frankly times when i wish we had a little more flexibility in some other contexts to have to to evaluate the seriousness of  should and i appreciate that your honor i think you know none of this is to say none of this is to hide behind what the for death think of what looked at some of the facts and circumstances some of the most important ones which is that there was no harm here that is that the board recognize that there is no weapon involved here but that still and this court has said in the board relied on press from this court that the inherent danger of a robbery even as opposed to burglary is by itself enough to call a crime valinor dangerous so let me ask you this if the if the attorney general through whatever delegates she wants to use were to find that somebody failed to show exceptional and extremely unusual hardship is there any way that the other factors once the don't see extreme hardship has been shown that other factors would counsel and a favorable exercise of discretion certainly your honor and the regulation a sec i mean if you look if you look at the way the of that higher arch of standard and still get relief and you can also might have other equities that would overpower the fact correct just as you can establish it and still not get relief which is what the court didn't  is it is one of many factors that applies it applies in a way that does not dictate any outcome but that certainly just suggests one more likely outcome that's when you think of any cases that have percolated up to a presidential for decision where that's it's it's extremely difficult because of the way that these applications are processed it's a sort of very broad brush that i can look up how many applications are filed it doesn't even say on what basis of two twelve age and certainly doesn't say what standards are applied so i tried very hard but is referenced emotional hardship the failure to specifically cite evidence of sort of suicidal ideation more severe psychiatric illnesses was not a failure to over look at your real facts so much as a questioning the board's ultimate exercise we're specific guidance as to how we tell the difference between cases where we have jurisdiction to decide whether sufficient consideration was given as a matter of law to certain evidence and when we don't have jurisdiction certainly your honor i think so so there's i think to help  always to think there's sort of two strands of how that might happen and i'll start with the board decision that petitioner relied on and then get a champion because i think the board decision matter of the lardy is is helpful for the strand of when you just don't say anything in that case the applicant found a motion to reopen to establish their marriage a bonafide for the purpose of adjusting status in the board said no and nothing else no explanation no reasons given despite the fact that the motion to reopen was supported by evidence of the bonafide marriage so that's one way in something but affirmatively it makes an assumption that was displayed was ignored there was disputed by the record so in champion for instance the petitioner was a mother demonstrated hardship factor sure children the board relied on hardship to the children with the assumption that the father of the around to mitigate hardship made that assumption totally ignore the fact that the father himself was very likely going to be looked so there was an affirmative assumption that something was or was not going to happen that c respects in addition to rising not in this court is even worse because in that case similar dynamic where the petitioner was a mother and said harshit your children the government in that case unfortunately had argued that the chip the hardship would be offset by the fact that the father would be around the natural father was not a petition in the case and the father was deceased and the government and the court never the court nor the board member knowledge did and so those that is what it takes for this court to determine that something is a legal have about a minute i have just two points i'd like to make first i think that for a violent and dangerous offender of facts and circumstances now assess is very important for the reasons you've stated there are some times where it may not be so offensive as others and in this particular case the facts indicate there were perhaps some mitigating factors additionally where the attorney general has worked to create a heightened standard for that particular subset case it did not hold that a generic incantation of extreme hardship has been shown here is enough in that case the court actually identified that the board did in fact discuss the very factors that petitioner had  asserted were not actually in there just maybe there was different language i think was sort of how it that had happened and this case is much closer to champion and also iglesias and a mat case the court wrote that had the board at least mention the factors  at issue on appeal it could be confident that the board considered it the board did not consider it here and the court cannot be confident that we asked the court to reverse and remand thank you maria thank you very much and did you accept this case for the crew from the court