[00:00:00] Speaker 01: Case number 20-5076, Van Gwangan is jailed at L, Appellants, versus Michael R. Pompeo in his official capacity as U.S. [00:00:09] Speaker 01: Secretary of State at L. Mr. Ramos for the Appellants, Mr. Glover for the Appellees. [00:00:14] Speaker 03: Good morning, counsel. [00:00:16] Speaker 03: Mr. Ramos, please proceed when you're ready. [00:00:19] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:00:21] Speaker 04: This is Edward Ramos on behalf of the Plaintiff's Appellants. [00:00:25] Speaker 04: There are a number of textual and structural reasons why the statutory framework at issuing this case does not require that the spouses and children of EB-5 investors use up the annual allotment of EB-5 visas. [00:00:39] Speaker 04: And I hope to discuss a few of those in my time this morning. [00:00:43] Speaker 04: But with the court's permission, I'd first like to focus on our APA notice and comment argument, because we think that may provide actually the easiest basis for the court to decide this case. [00:00:54] Speaker 04: The APA requires agencies to promulgate legislative rules through the notice and comment. [00:01:00] Speaker 04: And the State Department here violated that requirement by adopting its policy of counting spouses and children of EB-5 investors without going through the appropriate notice and comment procedures. [00:01:12] Speaker 04: Now, the government claims that it did in fact promulgate this policy through notice and comment and then points to a regulation, 22 CFR 42.32E, [00:01:24] Speaker 04: But if you look at the text of that regulation, Your Honors, you'll see that that regulation doesn't address the critical counting question at the heart of this case. [00:01:33] Speaker 04: In fact, subsection E2, which is the provision that deals with the spouses and children of investors, describes those spouses and children as receiving their status, quote, pursuant to section 203D, which is the equivalent of 1153D in the eight USC sites. [00:01:52] Speaker 04: And the language of that subsection is consistent with our position that spouses and children receive their status under Section 1153D and not the EB-5 preference category, which is subject to the worldwide limit at 1153B5. [00:02:11] Speaker 04: And any question on that point is resolved if you contrast the regulation on the one hand with the Foreign Affairs Manual on the other hand. [00:02:21] Speaker 04: we cite the foreign affairs manual provision at page 50 of the blue brief. [00:02:26] Speaker 04: And that provision very clearly announces the counting policy. [00:02:30] Speaker 04: It says in no uncertain terms that derivatives quote count against the numerical limits. [00:02:37] Speaker 04: But the problem of course is that the foreign affairs manual is not a regulation. [00:02:42] Speaker 04: It was not promulgated to the notice and comment procedures. [00:02:46] Speaker 04: And the public had no opportunity to provide feedback to the state department [00:02:50] Speaker 04: as to whether or not the counting policy is a sensible one. [00:02:55] Speaker 03: Can I ask you this question? [00:02:58] Speaker 03: If I read the statute to dictate that derivatives are subject to the numerical caps, then does the regulation matter? [00:03:07] Speaker 03: Does the procedural argument about the regulation matter? [00:03:12] Speaker 04: No, Your Honor, you're right. [00:03:13] Speaker 04: If the court agrees with either our contention that the statute unambiguously prohibits [00:03:19] Speaker 04: the counting of derivatives or with the government's position, then there wouldn't be any occasion to reach the APA question because the statute would dictate the only way that the agency could do things. [00:03:34] Speaker 04: But we would contend at a minimum that there is ambiguity in the statute. [00:03:39] Speaker 00: Before we get there, can I ask you in the regulation E2, the 42.32 E2, [00:03:46] Speaker 00: Sure. [00:03:46] Speaker 00: When it says a derivative status corresponding to the classification of the beneficiary of the petition, what does that mean to you? [00:03:59] Speaker 00: Does that mean that they're getting an E5 visa? [00:04:04] Speaker 04: No, Your Honor. [00:04:06] Speaker 04: No, Your Honor. [00:04:07] Speaker 04: The status, in our view, refers to lawful permanent residence status, not the status [00:04:16] Speaker 04: referring to the particular classification. [00:04:20] Speaker 04: And I think the reason that it may refer to the status corresponding to that classification is that there actually are two different forms of lawful permanent residency. [00:04:31] Speaker 04: You have lawful permanent residence status on the one hand, and then for EB-5 investors and certain spouses, you have additional lawful permanent residency. [00:04:42] Speaker 04: And so our view is that status refers to, not to the particular preference category, but to the... I'm wondering about classification. [00:04:55] Speaker 04: So the classification does refer to the particular subsection under either 1153B1, B2, B3, B4. [00:05:08] Speaker 00: It also says if they're not otherwise entitled to [00:05:12] Speaker 00: an immigrant status. [00:05:15] Speaker 00: So it sounds like there's no other source. [00:05:19] Speaker 00: And if under your theory, D3 was an independent source, why would it say if you're not otherwise entitled to an immigrant status, then you'll have a derivative status corresponding to the classification? [00:05:34] Speaker 00: of your principle to cut out some extra words there. [00:05:37] Speaker 00: If you're corresponding to the principle and you don't otherwise have a status, but your theory seems to be they otherwise do have an independent status separate from the principle. [00:05:49] Speaker 04: So is your honor referring to the regulation, the regulatory argument or to the statute? [00:05:53] Speaker 00: Right now I'm talking about the regulatory argument, although a lot of the language is similar in the statute. [00:05:58] Speaker 00: I'm just trying to figure out how you piece these words [00:06:01] Speaker 00: together structurally, if you aren't otherwise entitled to an immigrant status. [00:06:05] Speaker 00: So you have no, I think that language to me means, and tell me how I'm reading it wrong. [00:06:10] Speaker 00: I have no independent source for my status to come into or remain in the United States. [00:06:18] Speaker 00: And so I will have derivative status. [00:06:19] Speaker 00: I have no independent one. [00:06:21] Speaker 00: I'll have to have a derivative status. [00:06:23] Speaker 00: That means it derives from somebody else. [00:06:26] Speaker 00: And then the regulation and the statute does the same thing says what I'm going to derive is the same classification EB five as the principal. [00:06:37] Speaker 04: So your honor, in our view. [00:06:40] Speaker 04: In our view, status refers to lawful permanent resident status or conditional lawful permanent resident status and the point about it, not having status, you have to have the visa. [00:06:51] Speaker 00: I don't know how you can separate that out from the visa. [00:06:53] Speaker 00: That's a visa that gives you that status. [00:06:55] Speaker 00: This is all about getting visas here. [00:06:58] Speaker 00: So it can't be assuming you're already post visa and in a lawful permanent resident status. [00:07:04] Speaker 04: Right. [00:07:04] Speaker 04: So the particular classification leads to all 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. [00:07:21] Speaker 04: And our principal contention, Your Honor, is that status [00:07:25] Speaker 04: more naturally refers to either of those two statuses, conditional lawful permanent residency or lawful permanent residency, rather than the particular classification. [00:07:36] Speaker 00: No, I understand that part of your argument. [00:07:38] Speaker 00: I'm asking how you get there, because that's what's central to your argument, is how do you get to that status if you are a family member or child? [00:07:47] Speaker 00: A family member. [00:07:47] Speaker 00: I'm just going to use family member for a shorthand. [00:07:49] Speaker 00: If you're a family member, how do you get to that status? [00:07:52] Speaker 00: And it's through obtaining a visa. [00:07:56] Speaker 00: And the regulation, I'm just trying to understand your regulatory argument here. [00:08:00] Speaker 00: The regulation says that if you're going to get that, you can't have an independent source. [00:08:08] Speaker 00: If you have an independent source, you go use that, right? [00:08:12] Speaker 04: I think that's right, Your Honor. [00:08:13] Speaker 00: Okay, so you must be using a derivative as a statute says, source. [00:08:18] Speaker 00: And derivative means it comes from something else. [00:08:21] Speaker 00: And that would be this classification, the same classification as your principal. [00:08:26] Speaker 04: Right. [00:08:29] Speaker 04: But by virtue of 1153D. [00:08:31] Speaker 04: In other words, section 1153D confers, says that the spouse or child is entitled to the same status and the same order of consideration. [00:08:44] Speaker 04: And so the question is, [00:08:47] Speaker 04: I think the critical question regulation. [00:08:49] Speaker 00: It's also classification so that you piggyback your piggybacking. [00:08:52] Speaker 00: Essentially, you don't have an independence source of obtaining a visa and getting the status. [00:09:00] Speaker 00: I don't care whether it's conditional or not for these purposes. [00:09:04] Speaker 00: You know, piggyback on someone else. [00:09:06] Speaker 00: The principle. [00:09:08] Speaker 04: Right. [00:09:08] Speaker 04: I think that's right. [00:09:09] Speaker 04: But the critical question is whether or not for the purpose of the regulatory argument, whether [00:09:16] Speaker 04: The visa is the person obtains their status pursuant to section 1153D or 203D. [00:09:23] Speaker 00: But if you're piggybacking, I don't understand how you're not obtaining it from through the operation of EB5. [00:09:32] Speaker 00: So you don't have any. [00:09:33] Speaker 00: Your argument sounded like D3 was an independent source, but it's not an independent source. [00:09:39] Speaker 00: It's a piggybacking source. [00:09:40] Speaker 00: It's a derivative source. [00:09:44] Speaker 00: And so why isn't [00:09:46] Speaker 00: the natural language, particularly use of the word classification here in this regulation, doing the work that the government says it is. [00:09:53] Speaker 00: It says you're piggybacking on EB-5 status. [00:09:57] Speaker 00: You're getting an EB-5 visa. [00:10:00] Speaker 04: So, Your Honor, I think I have a few responses to that. [00:10:02] Speaker 04: One is that the language of the regulation is by no means clear at a minimum, because at subsection E1 and 2, E1 talks about entitlement to status, and that presumably refers to [00:10:16] Speaker 04: the lawful permanent residency or conditional. [00:10:20] Speaker 04: And then the derivative status just means that the spouse or child, they obtain that same status, but by virtue of the relationship to the EB-5 investor. [00:10:32] Speaker 04: But that doesn't mean that they obtain the visa under section 1153B5. [00:10:38] Speaker 04: And just to take a step back, if your honor looks at the regulatory history, [00:10:45] Speaker 04: There was commentary to both the proposed rule and the final rule here. [00:10:50] Speaker 04: And the government in the State Department went and promulgated the rule, never recognized the key structural change that was part of the 1990 act. [00:11:01] Speaker 00: And so the regulation- When a family member fills out their visa application, the application form requires you to check a box for which type of visa you're obtaining, including [00:11:15] Speaker 00: one of those options is employment-based, the EB-5. [00:11:19] Speaker 00: And so when the spouse fills out that form and says, what kind of visa are you getting? [00:11:26] Speaker 00: They check a box that says EB-5. [00:11:29] Speaker 00: There's no D3 option on there. [00:11:35] Speaker 04: Is that correct? [00:11:37] Speaker 04: As a matter of just factually, because the State Department takes the position that [00:11:42] Speaker 04: spouses and children obtain their status under the EB-5 classification. [00:11:47] Speaker 04: I think that's correct as a matter of fact. [00:11:49] Speaker 04: I think under our reading of the statute, that is not a correct way. [00:11:55] Speaker 00: When they get a visa, when they actually obtain the visa, not the application form, do visas actually indicate which type of visa they are? [00:12:05] Speaker 04: Again, as a matter of just simple fact, I think the answer is yes. [00:12:09] Speaker 04: But as a matter of the statute, I'm not aware of any statutory provision that requires that the visa itself indicate the particular status. [00:12:17] Speaker 04: And our position is that under the best reading of the statutory framework, the visa is issued under the derivatives provision rather than the capped EB-5 section. [00:12:30] Speaker 04: And if I could point the court just to one reason, moving to the statutory argument very briefly, because I see I'm running short on time. [00:12:39] Speaker 04: The Congress, when it wanted to explicitly require the counting of derivatives, knew exactly how to do that. [00:12:49] Speaker 04: And I think if you look at the 1980 Refugee Act, you'll see that contrast very clearly. [00:12:53] Speaker 04: The 1980 Refugee Act borrowed language that was virtually identical to the derivatives provision at issue here. [00:13:02] Speaker 04: And it was in a separate section, an independent section that was not subject to the worldwide limits on refugee admissions. [00:13:09] Speaker 04: And yet it included an express sentence there that the spouses and children of refugees count against the limits. [00:13:17] Speaker 00: And that's exactly the language that- Do you know what the practice was before the 1980 Refugee Act? [00:13:22] Speaker 00: For refugees? [00:13:23] Speaker 00: Yes, when they added that language, were they changing something? [00:13:26] Speaker 00: Were they carrying forward what they were doing before that with respect to refugees? [00:13:31] Speaker 04: Your Honor, I don't know the answer to that, Your Honor. [00:13:36] Speaker 04: I'm sorry, I don't know the practice before 1980. [00:13:38] Speaker 04: That was the section that codified, essentially, the refugee practice. [00:13:41] Speaker 04: But I'm not sure what the answer to that is. [00:13:43] Speaker 04: I apologize. [00:13:45] Speaker 04: I would like to refer. [00:13:46] Speaker 02: Sure. [00:13:47] Speaker 02: Sorry, Ron. [00:13:52] Speaker 02: If we accept the reasoning of everything you brief with regard to the reg, with regard to the statute, everything, is it possible to confine it just to EB-5? [00:14:07] Speaker 04: Your honor, we don't take a position one way or the other on that question. [00:14:12] Speaker 02: Let me tell you why I ask. [00:14:16] Speaker 02: I assume for the moment that I think there's some force to your argument. [00:14:26] Speaker 02: But its consequences seem huge if it's not confined to EB-5 or at least confined to EB-135. [00:14:37] Speaker 02: So tell me, is there a way to limit it to at least limit it to just the employment-based category and not the family and diversity? [00:14:50] Speaker 02: Tell me if there's a way to limit it just to EB-5 or if in all candor, there's no reason to limit [00:14:59] Speaker 02: limited, the logic of your argument goes just as much to family-based, the other EBs and diversity as EB5s. [00:15:07] Speaker 02: And, you know, then I want that answer. [00:15:09] Speaker 02: If that's the answer, I want that answer. [00:15:11] Speaker 04: Okay. [00:15:12] Speaker 04: Sure. [00:15:12] Speaker 04: Your honor. [00:15:13] Speaker 04: So I think I have two responses to that. [00:15:14] Speaker 04: The first is I don't have a fully fleshed out theory for how it could be limited to the EB5 category, but I would point to a few features of the EB5 program that I think could provide perhaps a basis for distinguishing it [00:15:28] Speaker 04: One is the job creation and the economic growth function of the EB-5 program. [00:15:35] Speaker 04: And in other words, the EB-5 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. [00:15:45] Speaker 04: And it would be strange to think that Congress would have intended to dilute that job creation and economic growth potential simply by virtue of the happenstance [00:15:56] Speaker 04: of the number of spouses and children that happened to tag along with the investors. [00:16:00] Speaker 04: And there's also some language that's specific to the EB-5 program, in particular the provision for removal of conditions for EB-5 investors. [00:16:11] Speaker 04: Two years after they enter the United States, they have to file a petition to remove conditions. [00:16:15] Speaker 04: And that statute distinguishes between the EB-5 investor who obtained status under section 1153B5 [00:16:23] Speaker 04: and the spouses and children who obtain their status by virtue of their relationship to the investor. [00:16:29] Speaker 02: How does it distinguish between them? [00:16:32] Speaker 04: Just the statute itself, the provision that governs removal of conditions. [00:16:42] Speaker 04: Excuse me, let me just pull up the provision. [00:16:45] Speaker 04: On the one hand, it describes investors obtaining status, quote, under Section 1153B5, [00:16:52] Speaker 04: And then on the other hand, it describes their children, the spouses and children as quote, obtaining status by virtue of being the spouse or child. [00:17:02] Speaker 04: But to answer, I think Your Honor's larger sort of floodgates question, particularly if the court were to rule on the APA ground, it would be open to the government to promulgate its counting policy through notice and comment. [00:17:18] Speaker 04: And the State Department has been known [00:17:21] Speaker 04: quickly promulgate interim final rules. [00:17:24] Speaker 04: And we don't see any reason at this juncture why it couldn't do that in this case if they believe that this was the better reading of the statute. [00:17:32] Speaker 04: And so we would just urge, particularly if the court finds that there's ambiguity in the statute at a minimum, which we think that the briefing at least establishes that much, that the court should remand on that issue so that the department goes through those required APA notice and comment procedures. [00:17:51] Speaker 04: And I see I've gone far over my time. [00:17:53] Speaker 00: Follow up on that on your structural argument. [00:17:56] Speaker 00: Sure. [00:17:56] Speaker 00: Statutory structure. [00:17:58] Speaker 00: Yes, your honor. [00:17:59] Speaker 00: And textual argument that there's no limit or the limits don't cross reference D3. [00:18:09] Speaker 00: What a regulation that counted. [00:18:13] Speaker 00: Family members. [00:18:16] Speaker 00: derivative family members against the caps? [00:18:21] Speaker 00: Be a lawful regulation? [00:18:23] Speaker 04: Well, again, our principle contention, Your Honor, is that no, that the statute unambiguously prevents. [00:18:31] Speaker 04: But if the court were to find ambiguity in the statute, then I think we would be forced to consider that. [00:18:36] Speaker 00: Your position is that it's not ambiguous in this regard. [00:18:41] Speaker 00: And so anyone who's in D3 [00:18:45] Speaker 00: which can't be confined to EB-5 or even E, can't count against limits. [00:18:52] Speaker 00: Is that correct? [00:18:54] Speaker 04: Oh, well, Your Honor, if I understand- Your position. [00:19:00] Speaker 04: Our principal position is that the statute mandates that outcome. [00:19:05] Speaker 04: But if I were to, I mean, I think we have to acknowledge, for example, that the word status [00:19:10] Speaker 04: if there were going to be ambiguity in the statute, I think it would turn on the word status because the word status in 1153 D is not a defined term in the INA. [00:19:20] Speaker 04: The INA has a definitional section 1101 and status doesn't appear there. [00:19:25] Speaker 04: And so the real bone of contention here is on the one hand, the government claims status really refers to visa classification. [00:19:33] Speaker 04: Our contention is that the better reading is that it refers to [00:19:37] Speaker 04: that it refers to lawful permanent residence status or conditional lawful permanent residence status. [00:19:42] Speaker 04: And if the court were to find that that was in fact ambiguous, then I think we would be forced to concede that the government, you know, can resolve that ambiguity through notice and comment rulemaking. [00:19:53] Speaker 02: And that effectively- You don't think it's, but Mr. Roth, I mean, I get that that's the narrowest approach to resolving the case, but it's also an approach that you don't think is correct and that the government doesn't think is correct. [00:20:05] Speaker 02: So the only way [00:20:07] Speaker 02: 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. [00:20:19] Speaker 04: Well, Your Honor, I want to be clear that the APA notice and comment argument, although it's not our principal argument, it's a fallback position. [00:20:26] Speaker 02: Right. [00:20:26] Speaker 04: That if the court rejects our principal contention that the statute unambiguously requires the spouses or prohibits the government from counting [00:20:37] Speaker 04: spouses and children against the limits, then at a minimum, we believe there's ambiguity. [00:20:43] Speaker 04: And in that case, the APA notice and comment argument kicks in. [00:20:50] Speaker 00: I just wanted to clarify one more thing, because I think I was just confused. [00:20:57] Speaker 00: It sounded to me from your reply brief that you agree that even if there are these 12, I'm just going to call them 12D3, [00:21:06] Speaker 00: visas, the D3 dependent or derivative visas, dependent family visas. [00:21:13] Speaker 00: Okay. [00:21:13] Speaker 00: They are, whatever you want to call it. [00:21:15] Speaker 00: I don't, I don't, I do the derivative for V. Okay. [00:21:19] Speaker 00: I got it. [00:21:21] Speaker 00: Your structural argument, that's a separate section that they are subject to the worldwide limits, but not to the country limits. [00:21:33] Speaker 04: So that's right, Your Honor. [00:21:34] Speaker 04: And the per country limits, I think the INA section is 202 and 1150, I think 1152. [00:21:45] Speaker 04: Yes, that is our position. [00:21:46] Speaker 04: 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, as the government points out, there are chargeability provisions [00:22:01] Speaker 04: that talk about how spouses and children should be counted against the per country limits in cases where they're of different nationalities. [00:22:09] Speaker 04: But those spouses and children are not the spouses and children of EB-5 investors. [00:22:15] Speaker 04: There are certain spouses and children who are themselves defined as principal immigrants. [00:22:21] Speaker 04: And in particular, the special immigrant category under 1153B4. [00:22:28] Speaker 04: And the major one is religious workers. [00:22:31] Speaker 04: And religious workers are defined at 1101A27C. [00:22:38] Speaker 04: And there's a couple of other ones that are cited at page 16 of the reply brief. [00:22:43] Speaker 04: But they're defined to include the actual principle category is defined to include the immigrant spouse and children. [00:22:56] Speaker 04: And so those are the spouses and children that are covered by [00:23:00] Speaker 04: the per country limits. [00:23:01] Speaker 04: And that's made clear, I think, if you look at section, I believe it's B, subsection B of 1152, it explicitly states that the per country limits only apply to people that have paid their status under 1153 A and B. In other words, the family and the employment-based capped categories. [00:23:22] Speaker 04: And spouses and children of EB-5 investors fall under D. [00:23:29] Speaker 03: I think you want to make sure my colleagues don't have further questions for you. [00:23:32] Speaker 03: At this point, Mr. Ramos will give you some rebuttal time. [00:23:35] Speaker 03: Thank you, Your Honor. [00:23:36] Speaker 03: Sure. [00:23:37] Speaker 03: Mr. Glover. [00:23:40] Speaker 01: Excuse me. [00:23:41] Speaker 01: Good morning and may it please the court. [00:23:42] Speaker 01: I'm Matthew Glover and I represent the State Department. [00:23:46] Speaker 01: I'd like to start with the statute's text and structure and I confess I'm a little confused about the last answer Mr. Ramos gave to Judge Millett. [00:23:54] Speaker 01: I believe he said that [00:23:56] Speaker 01: they think that the derivative visa applicants, or I think the term Judge Mullett was using was 1153D visa applicants, would be subject to the worldwide limits. [00:24:06] Speaker 01: And the worldwide limits are set forth in 8 USC 1151, titled worldwide limits. [00:24:13] Speaker 01: And so if he's conceding that, and I didn't understand that to be his position, but that would mean that the derivative visa applicants [00:24:20] Speaker 01: must take a visa from one of the limited categories and at 1151A, and this is part of our textual and structural argument, 1151A says, exclusive of aliens described in subsection B. [00:24:34] Speaker 01: aliens born in a foreign state or dependent area who may be issued a visa or may otherwise acquire status as a lawful permanent resident are limited to, and then A1 is family-sponsored immigrants, A2 is employment-based immigrants, and A3 is the new category of diversity immigrants. [00:24:51] Speaker 01: B includes some exceptions, the most notable being immediate relatives of US citizens and some special immigrants, and then 1151, [00:25:01] Speaker 01: C sets forward the numerical limitations that the title is referring to for family sponsored immigrants, and then D sets forward the worldwide limitation for employment based immigrants. [00:25:13] Speaker 01: If he's agreeing that derivatives are subject to these worldwide limits, that would mean the 140,000 limitation in 1151 D applies not just to the employment based immigrants, but also to their derivatives. [00:25:28] Speaker 01: And if you look at 1153, [00:25:30] Speaker 01: Which sets out the categories of employment based immigrants, it sets out for each one, a percentage of this number 140 and I'll clarify and I apologize if I'm getting too into the weeds, but 1151 D has 140 plus a second number. [00:25:45] Speaker 01: And that second number equates it mathematically to leftover family based immigrants so if the family based demand for family based immigrants does not meet the 480,000 cap in a given year, those leftover from that year are added to employment based for the next year it's sort of circular because if employment based doesn't hit it, the leftover are added. [00:26:04] Speaker 01: My understanding is. [00:26:06] Speaker 01: it almost never happens that there's leftover. [00:26:08] Speaker 01: So that's why I'm just keeping the 140 for purposes of clarity. [00:26:12] Speaker 01: But that 140 is then broken up among the B1 through five sections by percentages that equal 100%. [00:26:20] Speaker 01: So if derivative, EB5 derivatives are taking visas from the worldwide limit in 1151, they must be taking it from one of those percentage categories [00:26:32] Speaker 01: Naturally, that would be from the B5 percentage category. [00:26:35] Speaker 01: I think if I can step back, this meets our textual and structural argument. [00:26:42] Speaker 01: Historically, since 1921, Congress has limited with a quota system the number of immigrants entering the United States. [00:26:49] Speaker 01: And in the INA, the Immigration Nationality Act of 1965, it set a maximum cap in 1151 A of 170,000, with certain exceptions, and up through 1988, which is preceding the 1990 act, that number actually had gone up to 270,000. [00:27:09] Speaker 01: But then in the 1965 act had 1153A and A one through six set out or A one through seven set out a number of categories and percentages. [00:27:20] Speaker 01: Eight was a catchall and then nine was the exact same language for treatment of spouses and children accompanying or following to join. [00:27:28] Speaker 01: And so those people were taking visas out of the overall worldwide cap of 170 and later 270. [00:27:36] Speaker 01: The 1990 act, [00:27:38] Speaker 01: did sort of a structural overhaul and put in this provision I was speaking about in 1151A saying immigrant visas are limited to family-sponsored, employment-based, and the new diversity category with certain exceptions. [00:27:51] Speaker 01: If they had intended to have an 1153D derivative visa that was not supposed to be part of the caps, you would have expected them to do one of two things in 1151. [00:28:03] Speaker 01: included in 1151B in the groups that are not subject to the numerical limitations in A, or at least have in A listed a fourth category of immigrant visas are limited to family-sponsored, employment-based, diversity, and then a D derivative. [00:28:23] Speaker 01: But they didn't do either of those things. [00:28:25] Speaker 01: They kept the same language that they had had in the 1965 statute [00:28:29] Speaker 01: And, and I think they changed the gender of one of the pronouns and added a title to it when they moved it to 1153 D or a subtitle I think would be the right term but treatment of family members. [00:28:40] Speaker 01: And I think that if turning to 1153 that's another textual indication. [00:28:46] Speaker 01: But 1153D is not intended to create an uncapped or not subject to worldwide limitation pool of visas. [00:28:53] Speaker 01: 1153A is titled family-sponsored immigrants, specifying those immigrants that will come in under that provision. [00:29:01] Speaker 01: B is employment-based immigrants, specifying the immigrants that are coming under that provision. [00:29:06] Speaker 01: And C is diversity immigrants. [00:29:08] Speaker 01: D is treatment of family members. [00:29:11] Speaker 01: It's not derivative immigrants or some new category of immigrants. [00:29:17] Speaker 01: So it repeats the prior language. [00:29:19] Speaker 01: And I would note that we noted two bills in a footnote to our brief. [00:29:25] Speaker 01: Congress has multiple times in recent years taken up bills that would have added to 1151B, a provision saying, you know, 1151B, the exempted categories, it would add one stating, let me get the exact language, the exact language from, [00:29:45] Speaker 01: The Border Security Economic Opportunity and Modernization Act of 2013 cited in our brief, the language would have been to add to 1151B a new category titled H, derivative beneficiaries as described in Section 203D of employment-based immigrants under Section 203B. [00:30:01] Speaker 01: So that would have been a specific way to have exempted only employment-based derivative immigrants. [00:30:07] Speaker 01: from the worldwide caps, but Congress didn't it didn't enact that that was also proposed in the we call it the I squared. [00:30:14] Speaker 01: I think it's also known as the immigration Innovation Act of 2015 there was also an immigration Innovation Act of 2017 and 2013 all of which proposed that sort of language. [00:30:24] Speaker 01: And in addition, stepping back to the broader structure. [00:30:28] Speaker 01: In the 1990 act Congress took the worldwide level of immigration from 270,000 immigrant visas to three categories for 180,000 family based immigrant visas 140,000 employment based immigrant visas and 55,000 diversity based immigrant visas. [00:30:46] Speaker 01: So it increased the worldwide level from 270,000 to about 675,000. [00:30:51] Speaker 01: if it had created an uncapped category of derivative visas, 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 committee's math was that the house bill had 75,000 principal employment-based immigrants and that would equal 187,500 total. [00:31:15] Speaker 01: So they were using a 1.5 multiplier that each immigrant would bring on average 1.5 derivatives. [00:31:20] Speaker 01: Using that math on plaintiffs reading in the 1990 act Congress took the worldwide level of immigration from 270,000 to. [00:31:29] Speaker 01: 675,000 in these three categories, but also created an uncapped category that it expected to include 1,012,500 using that 1.5 multiplier, derivative immigrants. [00:31:43] Speaker 01: But it was silent about this category of 1 million. [00:31:46] Speaker 01: And it didn't even include that category of 1 million in the exempted 1151B. [00:31:50] Speaker 00: Can I ask you about their argument about the Refugee Act and how it specifically counts family members? [00:32:00] Speaker 00: Do you know what the practice with refugees and family members was before 1980? [00:32:05] Speaker 00: Was that codifying the existing practice? [00:32:08] Speaker 01: Yes, Your Honor. [00:32:10] Speaker 01: So I have a secondary statute that I think will help flesh this out when you were asking my colleague about that. [00:32:15] Speaker 01: So refugees, sorry, if I can go back to describing the 1965 Act. [00:32:21] Speaker 01: Section 1153A had provisions one through seven that were categories. [00:32:26] Speaker 01: Refugees were actually that A7 category. [00:32:28] Speaker 01: Then there was a eight which was a leftover and a nine was derivatives. [00:32:32] Speaker 01: The Refugee Act of 1980 was passed, it took out a seven so what was a eight in 1965 became a seven, and what was a nine the derivative provision for 1965 became a eight. [00:32:43] Speaker 01: It took out a seven and created a new statute with a new cap so refugees were previously taking immigrant visas under the worldwide cap of 270,000. [00:32:52] Speaker 01: And now they were taking them under this new separate statute and statutory structure. [00:32:58] Speaker 01: And so there they did choose to note that they were including them. [00:33:03] Speaker 01: But one of the reasons may have been because a derivative spouse or child of a refugee is not themselves meeting the definition of refugee. [00:33:13] Speaker 01: If I could also point out, they cite in page 12 of their reply brief some other statutes that provide for immigrant visas that aren't in 1151A. [00:33:21] Speaker 01: One of them precedes the 1990 Act. [00:33:25] Speaker 01: It's the Cuban Refugees Act. [00:33:28] Speaker 01: That statute allowed for Cuban refugees who reached the United States to immigrate, and specifically when it was first passed, I think in 1960 or 66, the year they cite, said that those Cubans did not count towards the A7 refugee total. [00:33:43] Speaker 01: And there was a time period at that at some point expired. [00:33:46] Speaker 01: And I'm sorry, I don't have printed out with me the various copies of the bills. [00:33:49] Speaker 01: But in 1976, Congress passed another bill before the 1980 Refugee Act saying that the Cuban refugees again would not take out from the then A7 refugee cap that was coming out of the worldwide limit of 270. [00:34:04] Speaker 01: So I think in creating this new refugee structure, Congress did choose to enumerate there. [00:34:10] Speaker 01: in looking at the treatment of worldwide caps and the treatment of derivatives under 1153, we think that when Congress repeated the same language and moved it to a new D section treatment of family members and didn't create, it didn't mean to silently create some new uncapped category of visas. [00:34:27] Speaker 01: And an additional indication of that in the 1990 act is that the treatment of family members was in section 162 of the act, which is titled [00:34:39] Speaker 01: conforming amendments. [00:34:41] Speaker 01: And so it was conforming to the prior, you know, use of language relating to derivative spouses. [00:34:49] Speaker 01: If I could also highlight in response to the other statutes 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 aren't the three [00:35:02] Speaker 01: family based, etc in in 1151 a, but when it does so, Congress includes language and I'll start with the first one they list the Liberian Refugee Immigration Fairness Act, it's section 76 11 of the National Defense Authorization Act of 2020. [00:35:19] Speaker 01: Section 7611H is titled, No Offset in Numbers of Visa Available, and then says, the Secretary of State shall not be required to reduce the number of immigrant visas authorized to be issued under any provision of the Immigration and Nationality Act to offset adjustment of status of an alien who has been lawfully admitted for permanent residence pursuant to this section. [00:35:38] Speaker 01: And it uses similar language in the Haitian adoptees act that they cite in the Indochinese Parole Adjustment Act of 2000, [00:35:45] Speaker 01: in the Haitian Refugees and Fairness Act of 1998. [00:35:49] Speaker 01: And if I can highlight the Nicaraguan Adjustment and Central American Relief Act, it's known as NICARA, that they cite of 1997, it did two things. [00:35:59] Speaker 01: It also included this no offset in numbers. [00:36:02] Speaker 01: But interestingly, NICARA, and I apologize, I know the court doesn't like acronyms, but [00:36:08] Speaker 01: Nicarra reduced the number of diversity visas available from 55,000 to 50,000 to account for these new refugees that were going to be available under that act. [00:36:18] Speaker 01: And it also reduced by 5,000 the number of visas available under 1153 B3A Romanette 3, which I think is a skilled labor section. [00:36:27] Speaker 01: I'm not sure which one. [00:36:28] Speaker 01: But that just gets to the point that when Congress is choosing to create [00:36:32] Speaker 01: immigrant visa categories that aren't in 1151 A, B and C, it's usually sets a specific cap and it specifically exempts them from the worldwide limits. [00:36:42] Speaker 00: And we just have no evidence of Congress having also- I'm curious about is, I mean, so you've done an argument here that's a very, you know, elaborate exercise in statutory construction, all kinds of statutory construction principles. [00:36:57] Speaker 00: But, you know, [00:37:01] Speaker 00: We're piecing together a lot of different statutes here. [00:37:04] Speaker 00: And maybe the piecing together is ultimately right for one side or the other. [00:37:09] Speaker 00: But it's not plain language in the way it was before the 1990 act. [00:37:19] Speaker 00: And you can interpret it. [00:37:21] Speaker 00: I understand your arguments for your interpretation. [00:37:22] Speaker 00: I understand their arguments for their interpretation. [00:37:26] Speaker 00: But State Department's never done a regulation [00:37:30] Speaker 00: that says, here's what it means. [00:37:34] Speaker 00: We're the experts in piecing this together. [00:37:36] Speaker 00: Visas, that's our wheelhouse. [00:37:40] Speaker 00: Let's explain to you why we're doing this. [00:37:43] Speaker 00: So what about their argument that at a minimum here, if you're adopting this interpretation and if it's to be deemed reasonable and get deference, you should have promulgated a regulation and you didn't. [00:37:58] Speaker 01: So your honor, I would have two responses to that. [00:38:01] Speaker 01: The first, and I'll get to the regulation, but the first is that we think that this is clear from the statute. [00:38:06] Speaker 01: And as you said, I use a number of interpretive texts. [00:38:09] Speaker 01: We think this is the best reading of the statute. [00:38:11] Speaker 01: But if you were to say the statutes ambiguous, we do think 22 CFR 4232 does make this clear. [00:38:18] Speaker 01: And it's clear from a provision that the regulation issue, the 22 CFR [00:38:24] Speaker 01: If I can walk through that briefly with you and I'll take a quick drink if you don't mind. [00:38:29] Speaker 01: I know my time is expiring. [00:38:38] Speaker 01: Thank you, Your Honor. [00:38:39] Speaker 01: So if you look at 22 CFR 4232, it's in subpart D of Title 42, which is foreign relations. [00:38:49] Speaker 01: Part 42 is visas documentation. [00:38:51] Speaker 01: Subpart D is immigrants subject to numerical limitations. [00:38:54] Speaker 01: So again, it's talking about those immigrants subject to the limitations in 1155A, which is the worldwide limitations. [00:39:01] Speaker 01: And in the 4232 employment based preference immigrants, the opening clause which applies to everything below it is identical to the opening clause that was in 1153 a under the 1965 statute aliens subject to the worldwide level specified in 201 D accepted it's now 201 D because 1155. [00:39:21] Speaker 01: sets the employment-based specific, 1151D sets the employment-based specific limitation. [00:39:26] Speaker 01: It used to be subject to 1151A because A had the worldwide just single cap. [00:39:31] Speaker 01: So that has changed the statute citation, but aliens subject to the worldwide level specified in 201D, which is that 140 employment-based visas for employment-based immigrants in a fiscal year shall be a lot of visas as indicated below. [00:39:45] Speaker 01: So the regulation tells us that that 140,000 pool [00:39:49] Speaker 01: are being allotted to these people in these categories as indicated below. [00:39:54] Speaker 01: And so we think that's very plain that they're counting towards the hundred and forty. [00:39:59] Speaker 01: 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. [00:40:10] Speaker 01: In the section E, fifth preference, employment creation immigrants, that's telling us that the people under here are the people who are going to be taken from the worldwide limit in 1101 D for section E, which is 1153 BE, employment based immigrants, 7.1% of the overall 140,000 or as it comes to now 9,960. [00:40:33] Speaker 01: The people taking up those 9,960 visas are entitlement to status and alien classifiable as a fifth preference in one, and then two, as you were discussing with my colleague, Judge Millett, entitlement to derivative status, and if not otherwise entitled to a visa. [00:40:48] Speaker 01: So as you were saying with them, they derive it. [00:40:51] Speaker 01: They're entitled to a derivative status corresponding to the classification, EB-5, and the priority date of the beneficiary of the petition. [00:40:59] Speaker 01: So we think the regulation is very clear that this is a regulation for those subject to the worldwide cap for employment-based immigrants. [00:41:07] Speaker 01: And here, and they place the derivatives for each section under that subsection telling you it's subject to that percentage in 1153 of the worldwide cap. [00:41:17] Speaker 00: Does the State Department have the authority [00:41:21] Speaker 00: to create new visa categories or can only Congress do that. [00:41:26] Speaker 01: I believe only Congress can do that, but I confess it's not something, I guess I would say, given the language of 1151A that, for at least if I can say for immigrant visas, I confess I didn't look at the language for non-immigrant visas. [00:41:41] Speaker 01: But the 1990 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 exempted in B. [00:41:52] Speaker 01: The State Department can't add to be unless it was later given statutory authority. [00:41:56] Speaker 01: I've seen no statutory authority. [00:41:59] Speaker 01: And so I'm not aware of any. [00:42:01] Speaker 01: I know I'm in the red light. [00:42:04] Speaker 01: If I could make two brief points, but if the court has heard enough, I'll also say I just I wanted to make a brief point. [00:42:10] Speaker 01: I have a couple. [00:42:11] Speaker 02: I have a couple. [00:42:12] Speaker 02: Oh, sorry. [00:42:13] Speaker 02: I don't want to jump in front of it. [00:42:16] Speaker ?: Go ahead. [00:42:18] Speaker 01: Go ahead. [00:42:18] Speaker 01: Might I make. [00:42:19] Speaker 01: Oh, go ahead. [00:42:19] Speaker 01: I apologize. [00:42:20] Speaker 02: I couldn't hear the chief judge, sorry. [00:42:23] Speaker 03: I said, I have a question too, but why don't you ask yours and then I'll. [00:42:26] Speaker 02: Okay, okay. [00:42:29] Speaker 02: So tell me why this is wrong, Mr. Glover. [00:42:36] Speaker 02: Classification and priority refer to status in line and the type of visa. [00:42:45] Speaker 02: And there's no doubt that when it comes to classification and priority, [00:42:50] Speaker 02: textual language, that family members aren't some fourth category of visas. [00:42:58] Speaker 02: There's family-based, there's employment, and there's diversity. [00:43:03] Speaker 02: There's no fourth branch of this. [00:43:07] Speaker 02: So if you fall under this D, and you're going to get classified and prioritized along with one or two or three, [00:43:20] Speaker 02: because you're the family member of an EB-5 visa recipient. [00:43:25] Speaker 02: You're treated like that EB-5 visa recipient with regard to your place in line and the type of visa that you get, which goes back to Judge Millett's question. [00:43:38] Speaker 02: Your visa is going to say an EB-5 visa. [00:43:43] Speaker 02: But text that tells us your place in line and your type of visa doesn't tell us [00:43:50] Speaker 02: anything about how we count you. [00:43:53] Speaker 02: And so to figure out how we count you, it was clear in the 1965 act because the counting flowed from your placement under a provision stating that you were subject to the INA's numerical limitations. [00:44:14] Speaker 02: So that's how we knew. [00:44:15] Speaker 02: And then Congress in 1990, [00:44:21] Speaker 02: changed it. [00:44:23] Speaker 02: They kept the text in terms of describing you, but they uncoupled it from the placement under that provision. [00:44:32] Speaker 02: To me, that at least strongly suggests that when it comes to counting, something changed. [00:44:41] Speaker 02: Because the only thing that was getting you counted before was your placement under the kind of catch-all. [00:44:48] Speaker 02: And now we look at the plain text without [00:44:50] Speaker 02: a kind of catch-all umbrella that was above it. [00:44:56] Speaker 02: And the plain text talks about an EB-5 qualified immigrant as someone engaging in a new commercial enterprise in which such alien has invested capital. [00:45:06] Speaker 02: That's 1153B5. [00:45:09] Speaker 02: And I think we can agree that at least some family members [00:45:16] Speaker 02: Do not engage in a new commercial enterprise investing capital. [00:45:19] Speaker 02: I mean, if you're a two-year-old child, you're not investing a million dollars in creating 10 jobs. [00:45:25] Speaker 02: So tell me why that's wrong. [00:45:30] Speaker 01: So Judge Walker, I would make a couple of points. [00:45:33] Speaker 01: The first is this goes to the discussion, and I tried to make this clear initially, but in changing 1151A, Congress added the exclusive of aliens described in B. So 1151A used to just set a worldwide cap exclusive of a few things, but instead they changed A to have exclusive of those in B. So B is those who are not counted in the worldwide cap. [00:45:57] Speaker 01: The visas, [00:45:59] Speaker 02: That may interrupt for a moment, and so you can address this before I forget to ask. [00:46:02] Speaker 02: B may or may not be an exhaustive list of aliens not subject to direct numerical limitations. [00:46:09] Speaker 02: You want it to be considered an exhaustive list, so you've got to explain to me why you think it is. [00:46:14] Speaker 02: You don't have to do it now, but at some point, please. [00:46:17] Speaker 01: So, can I start with two points on that, as I try I think I discussed or made clear in response to the statute cited at page 12 of their brief or their reply brief, when Congress did create a new non new means for immigrant visas. [00:46:33] Speaker 01: that wasn't included in 1151. [00:46:35] Speaker 01: It had language saying this isn't subject to the caps anywhere in the INA and all of those statutes, making clear it was doing that later with some other provision. [00:46:45] Speaker 01: But at the time it enacted 1153D and did the overhaul of 1151 through 1153 in the 1990 Act. [00:46:50] Speaker 01: The new 1990 Act, 1151A, has exclusive of aliens described in subsection B. Aliens in a foreign state or dependent area [00:47:01] Speaker 01: who may be issued immigrant visas or who may otherwise require the status of an alien lawfully admitted to the United States for permanent residence are limited to, it's that limited to language that says exclusive of B, immigrant visas are limited to and what follows- That's my point, Mr. Glover. [00:47:18] Speaker 02: I'm reading that not as referring to how we count them, but I'm reading that to referring to where we put them in line and what type of visa we give them. [00:47:26] Speaker 02: And if I'm wrong about that, please tell me why. [00:47:31] Speaker 01: That tells us that you are limited to those three categories and 1151A sets numerical limits of those three categories, the 480,000, or sorry, it's CD and E in 1151. [00:47:43] Speaker 01: It sets numerical caps for each of those categories, right? [00:47:47] Speaker 01: And then when you go to 1153 and you look at the caps for [00:47:51] Speaker 01: EB1 and EB2 and EB3 and EB4 and EB5, that adds up to 100% of the 140 employment-based visas available. [00:48:01] Speaker 01: So if they aren't going to be counted under their principles category, they would, I guess, be counted towards the 140, but they might just be blocked out entirely. [00:48:11] Speaker 01: And that wouldn't give them the same order of priority. [00:48:13] Speaker 01: In order to give them the same order of priority, [00:48:15] Speaker 01: have to put them in line in the employment-based immigrant visa category with their principle. [00:48:20] Speaker 01: And so if they are subject to the worldwide limitations, but they don't have a set-aside percentage, and the percentage for all of the sections adds up to 100 for both the family-based and the employment-based, then derivatives would be [00:48:33] Speaker 01: getting not the same status and not the same order of priority, the order of consideration they would lose because they would only get whatever is left over. [00:48:41] Speaker 01: And I think, you know, for the diversity visa applicants, it's a little more straightforward because there you just have a single limited 50,000 number. [00:48:49] Speaker 01: And so I think that's where 1151 [00:48:54] Speaker 01: Working together with 1153 makes clear that you're taking from this worldwide limit of visas and they've all been allotted and if you look at the language in, you know, EB1 and sorry 1153B1 and B3, it talks about allocating and allotting visas in identical language to what was previously used under [00:49:12] Speaker 01: what was then 1153A, one through seven. [00:49:17] Speaker 01: And so it's using that similar language that each of these provisions is allocating or allotting a visa. [00:49:22] Speaker 01: The A9 under the previous provision was nearly identical to what we have now. [00:49:26] Speaker 01: So we don't think merely eliminating the prefatory language that was in 1153A somehow takes them out of the counting because they are still part of this new exclusive three types of immigrant visas in 1153. [00:49:42] Speaker 02: Something about diversity being clearer than employment and I just didn't quite catch what you meant. [00:49:47] Speaker 01: I just meant that the numbers for diversity are a little bit easier simply because in 1153 C and D which set out the worldwide numbers for family based and employment based it has that sort of circular feedback of sorry yeah. [00:50:02] Speaker 01: And another point, Congress just doesn't hide elephants and mouse holes. [00:50:06] Speaker 01: And so again, using the math that the conference committee interpreted, their reading is creating about 1,012,500 uncounted visas. [00:50:17] Speaker 01: And if you look at the legislative history, and I scoured, I tried to find any legislative history really talking about derivatives. [00:50:23] Speaker 01: And all I could find was a committee report, the citation of which I can get you, [00:50:27] Speaker 01: But it was about the previous fifth 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 50% of the people and so. [00:50:43] Speaker 01: Maybe they should revise that category to only allow unmarried siblings, so that you wouldn't have derivatives because the categories 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 visa or new means of getting an immigrant visa. [00:51:02] Speaker 01: they set caps, they use caps, and they're clear when they're exempting you from the numbers in 1151. [00:51:07] Speaker 01: 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 substantial change from the system that had previously limited it at a total of 170 and later 270,000. [00:51:20] Speaker 03: Can I ask you one follow-up question, Dr. Robert? [00:51:27] Speaker 02: I'm finished with my questions. [00:51:28] Speaker 02: Thank you. [00:51:28] Speaker 02: Thanks for your patience. [00:51:30] Speaker 03: No, of course. [00:51:32] Speaker 03: I think it's related, which is, is there a reason that the preparatory language that the other side relies on in A to C and that was in the 65 act, is there a reason that it couldn't have been done in D or is it just that, I mean, I know your argument is that even though it's not there in D, D still naturally is subject to the caps because of all the structural arguments that you've been making. [00:52:01] Speaker 03: I guess my question is, is it also your submission that D actually wouldn't have even made sense to carry forward preparatory language in D? [00:52:15] Speaker 01: So if I can make a couple of points. [00:52:18] Speaker 01: In the original A, the preparatory language was before all of these provisions. [00:52:23] Speaker 01: And because they then split out A and B and C, they replaced it in each of those. [00:52:28] Speaker 01: I think Congress could have taken the treatment of derivatives and placed it at the end of A and the end of B and at the end of C, sort of repeated it in those three places. [00:52:37] Speaker 01: It didn't. [00:52:39] Speaker 01: I think if you put the preparatory language at the start of D, [00:52:42] Speaker 01: it's preference allocation for, but then you would need to, you know, I guess, because each of them are talking about a category of immigrants in 1151A, they're repeating the language, family sponsored immigrants in 201C, which is 1151C's sort of family sponsored numerical limitation and B. So the D would have said, you know, something like allocation for [00:53:08] Speaker 01: immigrants for family-sponsored, employment-based, and derivative who would have required changing. [00:53:15] Speaker 01: I don't know a clear way you could have repeated the identical preparatory language because you're talking about people who are getting their visa subject to three different new categories. [00:53:24] Speaker 01: And I suppose they could have in 1151A added D, derivative immigrant [00:53:30] Speaker 01: different visas as a new category of visas and then put here some preparatory language saying, but you shall be limited to the cap of your principle or some differently worded, but the preparatory language as it was included, I don't think allows or it isn't easily converted there. [00:53:46] Speaker 01: And I would just re-emphasize that when they were placing D, they did it in this section 162 of the 1990 act of conforming amendments. [00:53:54] Speaker 01: It's also where they placed the order of operations. [00:53:57] Speaker 01: And I think I hit on this, but the order of operations [00:53:59] Speaker 01: really only makes sense if you're getting in line with your principal in line, you know, towards a numbered visa system, not if you're getting an unnumbered visa, because then immediately when your principal obtains a visa, you can have the same status. [00:54:11] Speaker 01: So immediately, you know, there'll be no reason to continue to include that order of consideration language. [00:54:17] Speaker 01: If you weren't meant to be taking from the sort of numbered and capped visas in 1151. [00:54:23] Speaker 01: Does that answer your question? [00:54:24] Speaker 01: Was the second part of your question I've forgotten now? [00:54:26] Speaker 03: No, that covers it. [00:54:29] Speaker 03: My colleagues don't have any further questions. [00:54:32] Speaker 03: Let me make sure. [00:54:34] Speaker 03: Well, thank you, Mr. Glover. [00:54:35] Speaker 03: And we'll hear from Mr. Ramos for his rebuttal. [00:54:38] Speaker 03: Mr. Ramos will give me three minutes. [00:54:39] Speaker 03: Thank you. [00:54:41] Speaker 04: Thank you, Your Honor. [00:54:42] Speaker 04: The first point is on the regulation, Judge Millett's point about the regulation. [00:54:47] Speaker 04: And I heard my colleague mention that the structure of the regulation effectively mirrors the structure of the 1965 Act. [00:54:57] Speaker 04: And I think that's significant because [00:54:59] Speaker 04: What it means is that the State Department never grappled with the structural change of the 1990 Act. [00:55:05] Speaker 04: 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 evidence that they in fact didn't grapple with this new issue that the 1990 Act created. [00:55:22] Speaker 04: And the second point on the regulation is just to address Judge Walker, the language you were pointing to, [00:55:29] Speaker 04: the status corresponding to the classification, you know, in section 42.33E, E2, and the status, if what the regulation meant is just to say that they're accorded the same classification, they could have just said derivatives obtain the same classification, but instead they say a derivative status corresponding to the classification, and that indicates that's consistent [00:55:59] Speaker 04: with our reading that status refers to the lawful permanent residence status and not the particular visa classification. [00:56:10] Speaker 04: My colleague also mentioned the post-1990 legislative history. [00:56:15] Speaker 04: To begin, the courts generally accord very little weight to acts that were never passed. [00:56:22] Speaker 04: But more significantly, my colleague mentioned the Cuban Adjustment Act. [00:56:30] Speaker 02: Sorry, go ahead on the Cuban Adjustment Act. [00:56:33] Speaker 04: No, just the Cuban Adjustment Act provides a great historical example of how the State Department can misapply a counting policy for years. [00:56:43] Speaker 04: After the Cuban Adjustment Act was enacted in 1966, for over eight years, the executive branch misapplied the counting policy, excuse me, misapplied that statute by counting the Cubans against the worldwide limits. [00:56:56] Speaker 04: And it was only after eight years [00:56:58] Speaker 04: that the Office of Legal Counsel and the Justice Department took a second look at this and realized, you know what, we were wrong to count them against the worldwide limits. [00:57:05] Speaker 04: And they stopped counting them, and there was litigation over that. [00:57:09] Speaker 04: And the history of that is in a case called Slova v. Bell. [00:57:13] Speaker 04: It said 605 Fed 2nd 978. [00:57:17] Speaker 04: And that shows two things. [00:57:19] Speaker 04: One, that the executive branch can make mistakes in the implementation of these complex provisions. [00:57:26] Speaker 04: And the other is, [00:57:27] Speaker 04: that Congress doesn't always step in to fix these problems. [00:57:31] Speaker 02: Mr. Ramos, let me ask before your time's up, and in part because I'm, can you just clarify on the country caps versus worldwide caps? [00:57:40] Speaker 02: As I understand what you said just before the end of your first argument, I think you were saying that spouses and kids count towards per country caps, but not toward worldwide caps. [00:57:52] Speaker 02: Is that your position? [00:57:55] Speaker 04: It's close to that, Your Honor. [00:57:56] Speaker 04: Our position is that the spouses and children of EB-5 investors count against neither the worldwide limits or the per country limits. [00:58:08] Speaker 04: There are some categories of spouses and children, particularly of the fourth preference special immigrants, who count against the per country limits because they obtain their status under subsection 1153B. [00:58:25] Speaker 04: And if I said that the spouses and children don't do count against the worldwide limits, that was a misstatement and I apologize. [00:58:31] Speaker 04: Our central position is in fact the opposite, that they don't count against the worldwide limits. [00:58:37] Speaker 00: Sorry, your reply brief, page 13 footnote two says, derivatives are directly limited by the worldwide levels. [00:58:47] Speaker 04: What we mean by that, your honor, and I apologize if that wasn't clear, [00:58:52] Speaker 04: They are indirectly limited in the sense that the government characterizes our position about 1153 D as it is. [00:58:59] Speaker 00: Your position is please. [00:59:01] Speaker 00: Just I don't care who characterizes. [00:59:03] Speaker 00: Just please tell me what your position is. [00:59:06] Speaker 04: Sure. [00:59:06] Speaker 04: I'm sorry, your honor. [00:59:07] Speaker 00: Our position to on page 13 of your reply. [00:59:11] Speaker 04: Let me, let me just pull up the brief, your honor, so I can be clear that I'm addressing it footnote to your honor. [00:59:18] Speaker 04: H 13 [00:59:21] Speaker 00: There you say they're subject to the worldwide limits, but they just don't reduce the number of EB5 visas. [00:59:27] Speaker 00: That's how I read your note. [00:59:29] Speaker 04: So what we mean by that, and I apologize if that's not clear, is that they're indirectly subject to the worldwide limits only in the sense that the principles are subject to the worldwide limits. [00:59:39] Speaker 04: That was a response to- No, no. [00:59:40] Speaker 00: Your sentence, I'm going to read it to you, is derivatives are directly, not indirectly, limited by the worldwide levels defined at INA 201A. [00:59:53] Speaker 00: So you're now retracting that, that you're saying they are not limited or they're indirectly limited? [01:00:02] Speaker 04: So I think perhaps that wasn't the most artful way to express the thought, Your Honor. [01:00:07] Speaker 00: No, I'm saying this isn't artful. [01:00:09] Speaker 00: You said they are directly limited by the worldwide levels. [01:00:12] Speaker 00: Are you now saying, this is not artfulness. [01:00:15] Speaker 00: Are you saying they are, are they or are they not directly limited by the worldwide levels? [01:00:22] Speaker 04: Uh, there, they are only in the sense that derivatives obtain their status by virtue of a principle. [01:00:29] Speaker 04: So in other words, in other words, there is a, they do not direct, they do not expend EB five visa numbers. [01:00:37] Speaker 04: They do not expend, uh, visa numbers that are allocated in section two a one a. And, and I, I, I think Mr. Ramos, your, your footnote too has two sentences. [01:00:49] Speaker 02: I think that directly contradict each other. [01:00:52] Speaker 02: Um, so, um, I, I'm, I'm with judge Millett on, I'm, I don't know if she's confused. [01:01:00] Speaker 02: I was confused. [01:01:01] Speaker 02: I am. [01:01:02] Speaker 04: I apologize. [01:01:03] Speaker 04: Your honors. [01:01:03] Speaker 04: I, our position is that the spouses and children of EB five investors do not expend visa numbers, but they are limited in the sense that they rely on a, uh, an EB five investor. [01:01:17] Speaker 04: In other words, they have to be a spouse or child. [01:01:19] Speaker 04: And [01:01:20] Speaker 04: of an EB-5 investor and the EB-5 investors are themselves limited by the worldwide limits. [01:01:28] Speaker 00: So that would mean that the family members themselves are subject to no limit. [01:01:36] Speaker 04: Right, that's correct, Your Honor. [01:01:39] Speaker 00: Was that your position in district court? [01:01:42] Speaker 04: Yes, Your Honor. [01:01:45] Speaker 00: Okay, because the government's brief says that your position in district court is that they were subject to the country limits. [01:01:52] Speaker 04: So the country limit provision, it's a very complex provision. [01:01:59] Speaker 04: And where we ultimately ended up on the per country limits is that the EB-5 spouses and children do not count against the per country limits. [01:02:10] Speaker 00: On JA-94, this is a district court decision. [01:02:14] Speaker 00: This is the PI decision. [01:02:19] Speaker 00: While plaintiffs agree that EB-5 derivative spouses and children are counted toward the country cap, they dispute that they are also counted toward the worldwide levels. [01:02:28] Speaker 00: Was the district court wrong to say that you agree that they are counted toward the country cap there? [01:02:37] Speaker 04: Yes, our position did change from the preliminary injunction briefing to the position before this court. [01:02:46] Speaker 00: Did you change for the district court's summary judgment decision? [01:02:53] Speaker 00: Or is this a new argument here? [01:02:56] Speaker 04: The argument about, this is on the per country limits. [01:03:05] Speaker 04: I believe we, I'm sorry, Your Honor. [01:03:08] Speaker 00: No, no, go ahead. [01:03:09] Speaker 04: No, I believe that we we made the argument in the alternative in the district court, but I would have to go back and look at the briefing. [01:03:16] Speaker 04: I apologize, Your Honor. [01:03:21] Speaker 03: Okay. [01:03:21] Speaker 03: Thank you to both counsel will take this case under submission.