but the court is now confronted with a different sasha torrie conflict between reinstatement and the asylum change circumstances permit the court should hold that the changed circumstances provision as an exception to the reinstatement bar that  rand's statement not as a broad band of all relieved but as a specific exception to asylum eligibility and basically slotted it into the same place as the three other procedural bars for people that are trying to seek asylum and those include the safe country bar the bar on someone who has not filed within a year of entry and the bar and someone who has filed a first and unsuccessful petition under that view taking that as your baseline it makes the most sense to read the asylum change circumstances provision as the exception to the exception and the reason why we think that is three reasons one as that would give a fact about the change circumstances provision which if you read ran statement as a broad bar of all relief you're basically wiping out a large part of that statute to this asylum change circumstances provision as the more specific of the two provisions especially if you follow the analysis and he might he said the more specific provision was the one that involved the smallest subset group of recipients of potential asylum rel here you had asylum eligibility which was a large group and then the more general a more narrow and specific group of people that were seeking asylum under reinstated order of removal and then our provision would be a even smaller subset those that are under a reinstated order of removal and yet have changed circumstances that would normally allow them to seek asylum can i ask you a question just sort of a common sense question it makes sense to me that you would have where the bar goes to you know you didn't file within the original one year or you did file but your situation was rejected it makes sense to think in terms of having an exception for change circumstances because you didn't file because you didn't have a claim and or your claim was rejected because you didn't have a claim that but the reinstatement are seems different to me and that seems like a punitive and i don't mean a normative sense but it's to punish the fact that you were legally re entered and it's just not obvious to me why the same rationale for having a change circumstance exception doesn't seem to apply well your honor i don't think rand statement can be read as broadly as the government wants to do and there's a couple reasons for  if you read rand's statement as barring change circumstances claims and barring all relief all together you run into a bunch of problems not the least of which if you're doing honor chevron step one analysis if you stay reinstatement bars everything then you're basically invalidating the government's three regulations and so what i'd say is that reinstatement as not as broad as bahrain all in any relief and must be read more narrowly especially because it's a procedural bar this was not meant to be a substantial bar that's what the supreme court said in fernandez vargas and so once you slot reinstatement and as a procedural bar to asylum eligibility no different from any of the other three exceptions it makes sense to then have changed circumstances come behind that and say that is the exception to the reinstate our reinstatement was a procedural makan as i'm that was used to prevent real litigation of claims that were raised during the first  removal and it allows the government to not have to relate a gate those claims but my client never had an opportunity to raise an asylum claim in his first order of removal and so reinstatement should not bar his claim and the same way it should not a claim of someone who comes into the country as a child with their parents comes in illegally as ordered removed actually is removed and then comes in twenty or thirty years later it makes very little sense for reinstatement to bar that claim as well well it's discretionary right isn't that an argument that can be meet the attorney general i guess is the person who would have the authority to not put this into reinstatement proceedings well if you look at the reinstatement provision the that the government has created there's very little room for discretion the only discretion is is the questions that they ask whether someone has a reinstated or removal one of the person that was ordered removed at one point and then they actually left and then came back but we don't see any discretion for i j officials to say oh we're going to exercise discretion and take you out of every statement and the reason why we know that is the government has created three exceptions by notice and comment rule making to allow exceptions to reinstatement and those exceptions are cat withholding and you visas you visa and particularly should guide th court and thinking about change circumstances prevail because you visas often times someone will enter the country be removed and the government wants to call that person back after they have left the country based on changed circumstances they want to call that person back to testify in a criminal case they grant a u v s and so the government recognizes that change circumstances is a little different from withholding and cat and a broad view of reinstatement just barring all if you read the statutes and harmonize the statutes as the government would like you to you also will realize that that creates some absurd results because of mr lora aguilar had stayed in the country after he was ordered removed and then there was change circumstances in his country he could've then applied for asylum and there is no provision blocking our barring from doing that but because he complied with the law and voluntarily removed and results from illegal entry and that's because these are people that are flying in their country very often they don't know much about the law and they're trying to get away from persecution and so most of the asylum claims that are litigated are people that have reentered and congress knew that they knew it because the same day they pass reinstatement they passed this asylum eligibility statute and created specific exceptions for that the only way you can get to the government's reading is to accept an argument that seems to express lee have rejected which is the view that rand stan applies literally and barzani and all relief the government asked for  that and the court said no we're not going to view it that way we're going to view it as a specific exception to asylum eligibility as if that sachi it ran statement is placed right next to the other three procedural bars that congress laid out and the asylum eligibility statute once you come to that place then you realize you have to harmonize reinstatement what the change circumstances provision is in terms of the text you keep saying that under me it's sort of slotted in a b and alien he's physically present in the united states so long as there's not a reinstatement order made by for asylum i mean how do we know that it's supposed to come under the exceptions and that it's not more of a categorical exclusion just sort of a threshold question about what category eligible to i think you can look to four places in the opinion the one is where it says we do not agree with the government that the plain text of rand statement resolves this issue and it bars all and any really the court expressly rejected that argument in my hear and then it said in order to eliminate the contradiction we construe reinstatement to serve as a specific exception to one one five eight a ones general grant of eligibility to apply for asylum again the court said classifying the reinstate exception to the general asylum eligibility standard no differently than the other procedural did it say something like no differently than the other procedure if i had not put it out you could read a question i'm asking you that obviously it's an exception but just in looking at the text here's the problem right i'm looking at the text the exception does not apply to the reinstatement of our congress knew how to put it in so that it would have and it doesn't so you want us to kind of move that reinstatement bar and put it over in next to that exception and i'm saying i understand that maybe he called it an exception but how do we know it's under two exceptions and not something that you would just drop in under one as an exception yeah well i think because you know now that the court said it's a specific exception and rejected the government's broader argument that reinstatement is not just read literally you have to harmonize the two statutes once you say reinstatement is a specific exception it has to now be and the asylum statute that's how the court read and harmonize those lists and congress didn't put reinstatement in the asylum provision but the court and what he had did because it realize that congress passed two statutes on the same day that conflicted and now it's the court's decision about how to reconcile those once met here reconciled it by creating reinstatement as a specific exception our view is it makes a lot more sense to then say change circumstances and this is an exception to the reinstatement bar because it is the more specific of the two provisions that would harmonize the statutes give both statute some a fact and you would avoid the absurd result that if mr stayed in the country and had changed circumstance that he would be eligible for asylum but under the government's reading the fact that he left and complied with the order of removal he's now no longer eligible at the end of the day congress made your job kind of difficult because it created these conflicting statutes and now once you're at that point it's what do we do from here that's most consistent with congressional intent and reading the changed circumstances as the exception to the exception really it comports with the statutory language including the changed circumstances provision which says an application for asylum of an alien may be considered then says notwithstanding these other two procedural bars if the alien demonstrates cha circumstances reinstatement could apply just like being c and that statute in the statute is capacious enough to read it that way and include reinstatement as a specific exception no different from the bar on someone who has not filed within a year of entry and for someone who filed a first but unsuccessful petition who has changed circumstances and then coming back in to please the court matthew george for the attorney general i'd like to start by responding to petitioners contention that the reinstatement bar is merely a procedural mechanism that was never meant to affect any right over impose any burden on asylum claimants it's actually a misleading quote of the supreme court's fernandez fargas decision when the supreme court made that statement in fernandez fargus there actually actually addressing retroactivity and  the complete quote there is we hold the statute applies to those who read and entered before or erupt and does not retroactively affect any right or impose any burden on the continuing violator of the i and a now before us before that statement in fernandez vargas the supreme court as the court pointed out in may he said that the reinstatement bar was meant to enlarge the class of illegal entrants re entrance subject to reinstatement and limit the possible relief vailable to them fernandez vargas goes on to say that congress meant to tow a harder line and that's exactly what the court in may he pointed to among its other statements regarding the reinstatement bar and then ultimately held that the interplay between the reinstatement par section twelve thirty one and five and section eleven fifty eight it did not look to any specific subsection it said generally section eleven fifty eight is an ambiguous congress intended that aliens subject to reinstated orders of removal be precluded from applying for asylum the court has said a the court in may he like almost every other court to consider this issue has cited congress's intent to strengthen the effect of the reinstatement bar courts used terminology such as illegal entry having serious consequences that's what the fifth circuit has said the seventh circuit categorized as another limitation on the right to apply for asylum the tenth circuit cited congress intent to fortify the effect of the reinstatement provision and wanted to have a real teeth so this court is not alone in saying that the reinstatement bar i believe like judge harris has pointed out is to have serious consequences and to almost be punitive in that it's a categorical bar to asylum relief among a mother or other forms of relief  cancel reinstate or move orders and put aliens into regular proceedings under two for the call to forty or more such until twenty eight or twenty nine am start does it ever do it for this kind of reason wh officer and say look i have this claim that arose after and this is the only time i've been able to apply for it although kind of backing up and examining petitioner statement that he's complied with the law and that he left the country he's not in the same position as someone who merely remains here after receiving a removal order and then and sought to move to reopen or sought to reapply for asylum based on changed circumstances he's taken the extra step of illegally re entering the united states which is exactly the conduct the congress enacted the reinstatement bar to discourage that's one of the things they were looking at so is the second part of what you  the united states after having illegally re entered so now if they were before the t h s officer that's now the time that they could say express a desire to apply for asylum and perhaps that's something the officer would consider i i don't have a specific example of the factual circumstances or that happening in different circumstances i have seen them all kinds of circumstances where there there was some questions over the remove ability in general and there was a chinese who wanted to make some statements on behalf of the alien who it was unclear if those statements actually made it to the t h s office or for him or her to review going in the first remov like i believe was regarding the seconds it may have actually it may have actually been in the the expedited removal context where someone had re entered and i guess not exactly on all fours i mean i don't see every case that comes up but i know there are opportunities for t h s to consider things other than what specifically before them so again i have not seen this specific factual circumstance where someone has said i'd like to apply for asylum and them canceling a removal reinstate a removal order and putting them into proceedings but it is it is a possibility other possibilities before an alien just decides to legally enter the alien could present him or herself at the embassy or consulate in his or her home country and say i'm a refugee i live i'm here to apply for asylum please process me as a refugee and that would be a way to present an asylum claim and perhaps enter the united states legally as a refugee another way would be to present oneself legally at the border and say i'm here to apply for asylum which is abroad that that's a third possibility let me back up to the second possibility is present oneself at the border and say i'm here without without illegally reentering say i'm here to apply for asylum and that's what the third circuit i believe recognized was an option for someone in this particular circumstance before they illegally enter the third option is what the court recognized makiya was to factually file a motion to reopen from  abroad and say now my circumstances have changed i now have an asylum claim where i didn't before please reopen my proceedings and that's that's something that is allowed to be done there's a statutory right to a motion to reopen as simply but this is not one up that's correct your honor once the alien takes that additional proactive step sort of self help of illegally re entering the united states that's the the conduct that congress intended to prohibit and to attach that's correct your honor he is holding was broad categorical unambiguous asylum is barred to those with reinstated removal waters this question is simply a subset of that  one way of looking at is as judge harris has pointed out it is it's not an exception that's read and in section subsection two it's it's a general eligibility in subsection a one these are individuals who are simply just not eligible at the initial stage to apply for asylum so then the the the exceptions that are found later simply don't apply and that's consistent with what he has said again looking at it a different way matter what the facts are of the case what this particular person did were simply looking at the statute that's actually just categorical saying aggregate aggravated felony that's the end of the end corey and that's what me here has said here is that this is a categorical bar of asylum to those with reinstated removal orders that ends the inquiry we the court cannot go beyond that without overruling me if it were to say that there is some third or fourth exception for changed circumstances it would necessarily have to overrule me and that a strange thing as pointed out you cannot do this panel cannot do that would be a great question for the the court if the court shoes is to take it there but that's the only way the court could find now it's it's ambiguous regarding change circumstances and find some exception to on ambiguous language bars any and everything for one it point they don't really believe that because they have also created three exceptions through notice and comment rule making for withholding cat and you visas even though are coming to this court saying reinstatement bars any relief and the court said but we don't agree with the government that the plain text of reinstatement resolve this issue because as with those textual arguments the government's argument fall short because it too fails to square the reinstatement bars prohibit prohibit on seeking any relief with the broad grant of asylum eligibility so the court had that argument and said the plain language of reinstatement does not decide this case because it conflicts with another statute and the question then is how to harmonize these statutes to give effect to every one thing and then the court said three times that it was reading reinstatement as a specific exception to the asylum eligibility statute the court did not have a changed circumstances case before it nor did any of those other circuit courts that have decided this issue so if the court today says change circumstances an exception duran statement it will be the first court to say that you also have to follow the same analysis that the court and what he had did which recognize that yes congress wanted rand statement to bar certain claims but also recognizing on the very same day congress said change circumstances provide allows for people to seek a second bite at the apple art it's our client's first bite at the apple and it seems that the only way to resolve those after my here is to say that the changed circumstances exception is an exception to reinstate the court did not decide that issue and may here we do not you do not need to you're not bound by the panel's decision if anything  on the panels analysis that recognized reinstatement cannot be read literally it's a specific exception to asylum eligibility and then go through the general vs specific analysis if you do that analysis we should prevail because we have a narrower subset of people who are under rate who are eligible for asylum under reinstated order of removal but then who have changed circumstances that allows them to seek asylum eligibility so my head does not control this case if anything helps our side because if you have to find a way to harmonize these two statutes saying reinstatement is just read literally is not going to do it because it brings you right back to the same conflict that monkey a court was trying to resolve reinstatement was a procedural bar and once you have read it that way it should apply and no differently than the other procedural bars in the asylum eligibility statu and it seems really strange that congress would want to bar hate claims like my clients where he had no opportunity to raise an asylum claim in the first sense to i understand that when people ran tree that's breaking the law but congress knew that because they allowed for people to seek asylum who have entered illegally the majority of asylum claims come and through people who have entered illegally because they don't understand they can present a claim if they come to the border reinstatement is discretionary i agree with the government on that but it's only discretionary in this way we've only seen the government say we're going to not worry about reinstatement when someone falls under one of the three exceptions that the government has created for reinstatement that's cat withholding and you have these those are the only three places we have ever seen the government exercise discretion we could not find a case where someone had come in and the government had and the person had sought asylum and the government had used its discretion to allow them to seek asylum and so i don't think that you can count on that as giving effect to the changed circumstances provision because if someone doesn't fall under one of the government's three recognize exceptions they are not going to be allowed and have reinstatement removed and allowed to seek asylum was thank you with thank you your honor you're out of town and fortunately on behalf of the panel i want to  georgetown law center for undertaking representation of this crime and i know you've had to do extra work particularly after me he came out and we not only agreed to take our representation with the extra work that you also had to do to maintain your representation