[00:00:00] Speaker 03:
Thank you.

[00:00:02] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
May it please the court?

[00:00:04] Speaker 03:
I'm Matt Adams with Northwest Immigrant Rights Project on behalf of Ms.

[00:00:07] Speaker 03:
Cabello and the Putative Class.

[00:00:10] Speaker 03:
This court's recent decision in NACA demonstrates that 8 USC 1252 A2B1 should not be read to strip Ms.

[00:00:21] Speaker 03:
Cabello and Putative Class members of any forum to obtain judicial review of an agency policy they allege

[00:00:30] Speaker 03:
is plainly contrary to the statute.

[00:00:33] Speaker 03:
Now, defendants maintain that the district court has no jurisdiction to review its policy governing U visa adjustment applications, regardless of the fact that there is no other forum in which to challenge this policy that directly impacts them.

[00:00:50] Speaker 03:
However, in NACA, this court held that 1252A2B does not bar, quote, collateral challenges to defendants generally applicable policies and procedures, end quote.

[00:01:05] Speaker 03:
Now, NACA did foreclose plaintiff's argument that 1252A2B does not apply outside the context of persons in removal proceedings.

[00:01:16] Speaker 03:
But it also clarifies that the statute nonetheless permits challenges to general policies and procedures.

[00:01:23] Speaker 03:
And that is precisely what is presented here.

[00:01:26] Speaker 00:
Can I ask you on this?

[00:01:29] Speaker 00:
So why do you think Ms.

[00:01:31] Speaker 00:
Cabello is not similarly situated to the one plaintiff in NACA whose adjustment of status had been denied, who the opinion refers to as P. Padada?

[00:01:41] Speaker 03:
Yes.

[00:01:41] Speaker 03:
The distinguishing factor in this case

[00:01:45] Speaker 03:
is that the applicant in NACA was able to, and under the statute, renew her adjustment application before the immigration court in removal proceedings.

[00:01:58] Speaker 03:
So under 1255A, that applicant has the right to have the attorney general review and adjudicate her application.

[00:02:07] Speaker 03:
And therefore, it can be reviewed on a petition for review of that final order.

[00:02:14] Speaker 03:
In contrast, here, 1255M prevents a unique adjudicatory system where only the Secretary for the Department of Homeland Security has authority to adjudicate an adjustment for a U visa holder.

[00:02:34] Speaker 03:
And so unlike any other adjustment application, Ms.

[00:02:38] Speaker 03:
Cabello and class members cannot renew an application or ask an immigration judge to review any determination with respect to their denial of a U visa adjustment.

[00:02:50] Speaker 00:
So you're asking here, you know, essentially for a constitutional exception to 1252A to B. Why couldn't you ask for a constitutional exception to 1255M and in removal proceedings make the same argument?

[00:03:10] Speaker 00:
Say we have a due process right there.

[00:03:16] Speaker 03:
I believe that under our understanding of the courts holding in NACA, where it made clear that 1252A2B does not preclude a challenge to a policy or procedure that consistent with that interpretation of the statute, our clients are able to proceed in district court.

[00:03:39] Speaker 03:
Now in NACA, this court held that they had to move forward

[00:03:45] Speaker 03:
And with the petition for review process, because that was a channeling provision and then it dovetailed nicely, but it relied again on the Supreme Court's holding in Reno versus CSS, where it found an exception, where it noted an exception where the procedures do not provide adequate review.

[00:04:06] Speaker 03:
and said in those situations, they would not be required to follow those procedures.

[00:04:11] Speaker 03:
And that's precisely like this case.

[00:04:13] Speaker 03:
There is no adequate review under the procedures, so they don't need to go through that channeling process.

[00:04:22] Speaker 03:
So we're not arguing that 1252A2B2 is unconstitutional as applied to our clients.

[00:04:31] Speaker 03:
under NACA because under NACA it makes clear that it does not preclude a district court's jurisdiction.

[00:04:38] Speaker 03:
But in those cases, which admittedly is the vast majority of cases where an applicant can in fact obtain review through an adjustment through immigration court and then on a petition for review, they must be confined to that channeling process.

[00:04:55] Speaker 03:
But what would be, I mean, what is the

[00:04:59] Speaker 00:
Why wouldn't one read this to say, it is a channel, it's doing the same channeling, it's directing you to the petition for review process.

[00:05:10] Speaker 00:
There may be an impediment to raising this there, but you can raise a constitutional objection there, that what Congress was saying is, if you wanna raise this argument you're raising, you need to essentially wait and deal with it in the course of the petition for review process.

[00:05:26] Speaker 03:
We do argue in the alternative that if the statute is read to completely foreclose any type of judicial review, then it is unconstitutional as applied to Ms.

[00:05:39] Speaker 03:
Cabello.

[00:05:40] Speaker 03:
But I think the point here is that the statute is a channeling provision.

[00:05:46] Speaker 03:
It's not a stripping provision.

[00:05:49] Speaker 03:
And therefore, in the context of

[00:05:52] Speaker 03:
a case where it cannot be channeled, then it doesn't apply to our client.

[00:05:58] Speaker 03:
So this doesn't mean the statute is unconstitutional.

[00:06:02] Speaker 03:
It means it's inapplicable because it doesn't channel the claim that's before the court.

[00:06:08] Speaker 00:
I guess one question I would have is, are you relying on the part of NACA that applies to people who have not

[00:06:16] Speaker 00:
sought adjustment of status because that decision distinguished between those people who could potentially bring a collateral claim if it were ripe and P. Padada whose claim was ripe but who was then channeled and like P. Padada, Ms.

[00:06:32] Speaker 00:
Cabello was denied adjustment of status.

[00:06:36] Speaker 03:
And no, we're not relying upon the NACA decisions, how they distinguish the other applicants who had not yet applied.

[00:06:46] Speaker 03:
Our class is limited to those individuals who have both our name plaintiff and the proposed class focuses on individuals who have in fact applied for adjustment of status and therefore are subject to this policy.

[00:07:01] Speaker 03:
But again, the policy or the channeling provision focuses on limiting the review through the channel that's available.

[00:07:10] Speaker 03:
But when there is no channel that's available, that provision would be inapplicable as the Supreme Court held in Reno versus CSS, where it says there must be an adequate procedure.

[00:07:23] Speaker 03:
And here there clearly is no adequate procedure.

[00:07:25] Speaker 03:
Now, defendants

[00:07:27] Speaker 03:
have argued, I think similar to what the court has suggested here, that, well, even if our clients don't have a shot at challenging the policy, they can change their argument and challenge the statute, 1255M, and how it limits the adjudication to just the secretary of DHS instead of allowing the attorney general to adjudicate their claim.

[00:07:55] Speaker 03:
But again, that's a separate constitutional statutory claim.

[00:08:00] Speaker 03:
What NACA made clear is that there is an avenue, district courts are not stripped of jurisdiction to review a policy that they contend violates the statute.

[00:08:15] Speaker 03:
And again, the court in NACA found that district court has jurisdiction.

[00:08:22] Speaker 03:
So it wasn't just saying,

[00:08:24] Speaker 03:
or rather that 1252A2B does not strip a district court of jurisdiction.

[00:08:31] Speaker 03:
And that's the underlying holding that the district court was not stripped of jurisdiction by the statute.

[00:08:38] Speaker 02:
But NACA was referring to a different provision where I think you say it does give some form of judicial review, whereas here it gives exclusive review to the DHS secretary.

[00:08:51] Speaker 02:
So the statutory provisions are different and because of that maybe you ultimately do get your day in court by maybe challenging that exclusive review process by the DHS secretary.

[00:09:03] Speaker 02:
So isn't it ultimately you do get your day in court maybe and not in the

[00:09:06] Speaker 02:
the way you want or in a timely way or the exact argument, but you do get to challenge it.

[00:09:13] Speaker 03:
But I guess to me, I don't think that's, I guess I would push back on that because what we're saying is we shouldn't be challenging the constitutional application or whether the application of the statute's constitutional care

[00:09:31] Speaker 03:
because we can wait for another day and challenge whether 1255M, a separate provision, is constitutional as applied to them.

[00:09:43] Speaker 03:
The question is, is there an opportunity under the petition for review process as laid out in 1252 to address this policy?

[00:09:56] Speaker 03:
And there is no opportunity, as defendants acknowledge, if we look at page seven of their answering brief, there's no opportunity for the immigration court to review the denial of an adjustment application when it's based upon a U visa.

[00:10:13] Speaker 03:
And again, this contrasts with all other forms of adjustment under 1255.

[00:10:19] Speaker 03:
So the question then is, is there any relief available under 1252A2D?

[00:10:27] Speaker 03:
1252A2D would only be applicable for those individuals who are able to present an adjustment application in removal proceedings.

[00:10:40] Speaker 03:
Because 1252A2D only restores jurisdiction over questions of law and constitutional issues for claims that were raised in immigration court.

[00:10:51] Speaker 03:
but because this claim cannot be raised in immigration court.

[00:10:55] Speaker 03:
And again, the Supreme Court's decision in Nasrallah makes clear that on a petition for review, the Court of Appeals can only entertain or only review those matters that were before the immigration court.

[00:11:09] Speaker 03:
And that's further consistent with the statute

[00:11:13] Speaker 03:
at 1252, which limits review on any petition for review to matters that are in the administrative record.

[00:11:22] Speaker 03:
So none of this is part of the underlying removal proceedings.

[00:11:26] Speaker 03:
And that's why it cannot be encompassed by the jurisdiction provision, the

[00:11:34] Speaker 03:
at 1252A2D, which restores jurisdiction to constitutional claims and questions of law.

[00:11:43] Speaker 03:
But again, that's only for matters that are before it, based upon the underlying removal proceedings.

[00:11:50] Speaker 03:
And here, because of the unique provision of 1255, limiting only the Secretary of the Department of Homeland Security to review that matter, it's never going to be part of the underlying removal proceedings.

[00:12:06] Speaker 03:
And again, the final point I would make

[00:12:11] Speaker 03:
was simply that if this court were to find that notwithstanding the court's holding in NACA, that 1252A2D forecloses all review of this adjustment provision, then

[00:12:26] Speaker 03:
it would be unconstitutional as applied to Ms.

[00:12:30] Speaker 03:
Cabello, both because it violates the separation of powers, which require the judicial branch to retain authority over determining issues of law, but also because it violates her procedural due process clause.

[00:12:45] Speaker 03:
And I would emphasize it is her procedural due process clause, not any substantive claim to due process.

[00:12:52] Speaker 03:
defendants point to the Munoz decision, but of course that's inapposite.

[00:12:55] Speaker 03:
That's dealing with a substantive due process claim.

[00:12:58] Speaker 03:
It's well settled that Ms.

[00:13:00] Speaker 03:
Cabello, who's been living here for years, who has lawful status, has due process, and the Supreme Court in St.

[00:13:06] Speaker 03:
Cyr has instructed that entirely precluding judicial review of pure questions of law

[00:13:13] Speaker 03:
creates, creates constitutional questions.

[00:13:17] Speaker 03:
And of course, in Loper of Bright and SEC versus Jarcy, this court is, the Supreme Court has recently reaffirmed that it is in fact the prerogative and the sole domain of the judiciary to decide these questions of law.

[00:13:35] Speaker 03:
So I would leave it at that now, if I may, I'll preserve my last minute and a half for rebuttal.

[00:13:41] Speaker 03:
Great.

[00:13:41] Speaker 03:
Thank you.

[00:13:46] Speaker 02:
Mr. Chen, whatever you're ready.

[00:13:51] Speaker 01:
Good morning, Your Honors.

[00:13:52] Speaker 01:
May it please Court, I'm Chen from the United States Department of Justice.

[00:13:55] Speaker 01:
This court should affirm the dismissal of the.

[00:13:58] Speaker 01:
Complaint here, and it should do so because not held that district courts have jurisdiction.

[00:14:07] Speaker 01:
Of claims raised by Mr. Garcia and her punitive class.

[00:14:12] Speaker 01:
Only if they are collateral to individual applications.

[00:14:17] Speaker 01:
If they are right.

[00:14:18] Speaker 01:
or if there are applicable exceptions to the rightness requirement.

[00:14:22] Speaker 01:
And here, none of those factors exist.

[00:14:26] Speaker 01:
First,

[00:14:28] Speaker 01:
Ms.

[00:14:28] Speaker 01:
Taveo-Garcia's claim is not collateral.

[00:14:31] Speaker 01:
She raises an individual claim based on her individual application.

[00:14:38] Speaker 01:
And we know from NACA that when a claim involves an individual application and cannot be recast as a collateral claim, to do so would be to evade entirely the jurisdictional bar of 1252A2B1.

[00:14:52] Speaker 01:
Because Ms.

[00:14:53] Speaker 01:
Cabello-Garcia's claim must be dismissed for lack of subject matter jurisdiction, the class claims cannot proceed as collateral.

[00:15:02] Speaker 01:
This is all from the Ninth Circuit, LIBO versus State Farm Mutual Auto Insurance is the leading case.

[00:15:10] Speaker 01:
Because furthermore, she is not typical of the class because she does not have the collateral claim, but an individual claim

[00:15:18] Speaker 01:
she cannot be the class representative.

[00:15:20] Speaker 01:
She was the only class representative in the complaint.

[00:15:23] Speaker 01:
And because the class representative here lacks standing, so does the class.

[00:15:29] Speaker 01:
And as a result, any collateral claims that the class might seek to bring must also be dismissed.

[00:15:40] Speaker 01:
The plaintiffs here have argued that NACA is distinguishable merely as a

[00:15:46] Speaker 01:
channeling provision, as opposed to a clear application of the jurisdictional bar set forth at 1252A2B.

[00:15:55] Speaker 01:
And that's incorrect, Your Honor.

[00:15:58] Speaker 01:
Both in NACA

[00:16:00] Speaker 01:
with the amicus brief submitted by opposing counsel here, as well as in the 11th Circuit in Doe, we had a situation where the circuit courts were confronted with a situation where the plaintiffs alleged that 1252A2B1 should not apply to petitions incapable of being channeled to the courts of appeal under 1252A2D.

[00:16:28] Speaker 01:
Nevertheless, in both NACA and DOE, the circuit courts held that Ball 52, A2B1 precluded the claims here.

[00:16:40] Speaker 00:
Any challenge?

[00:16:41] Speaker 00:
Your opposing counsel said in NACA, the P. Padada's claim could be reviewed upon a petition for review.

[00:16:48] Speaker 00:
Is that not correct?

[00:16:50] Speaker 01:
Her claim could be, Your Honor, and here

[00:16:54] Speaker 01:
on a direct review.

[00:16:57] Speaker 01:
Well, I will say this here, Ms.

[00:16:59] Speaker 01:
Gavaino-Garcia could not renew her petition in the first instance before the immigration.

[00:17:05] Speaker 01:
So the opposing counsel is correct there.

[00:17:08] Speaker 01:
But what I would say in response to that, Your Honor, is that that is a distinction that doesn't matter.

[00:17:13] Speaker 01:
And it doesn't matter because having been confronted with that precise scenario in both NACA and DOE, both this court and the 11th Circuit,

[00:17:23] Speaker 01:
held still, they still held that the regardless clause of 1252A2B precludes an individual challenge to an individual denial.

[00:17:37] Speaker 00:
I think your opposing counsel is saying that that's a key distinction because if

[00:17:42] Speaker 00:
If Cabello can't challenge the denial of adjustment of status before the IJ, that's different than P. Padada, who could, in that that should cause us to say that there's jurisdiction in the district court here, or at least have to confront a constitutional question about that.

[00:18:02] Speaker 01:
So there's three responses, Your Honor.

[00:18:09] Speaker 01:
That argument would be the application of a dangerous principle where judges can give the same statutory text, different meanings in different cases.

[00:18:19] Speaker 01:
And what do I mean by that?

[00:18:20] Speaker 01:
What I mean is that in NACA, the court held that 1252A2B1 applies to preclude review of adjustment decisions made by USCIS outside the context.

[00:18:32] Speaker 01:
of removal.

[00:18:33] Speaker 01:
That's exactly the case here, Your Honor.

[00:18:35] Speaker 01:
And the NACA court was given the opportunity to establish a carve-out, just like the Doe court was in another story.

[00:18:44] Speaker 01:
And in both cases, they declined to do so.

[00:18:47] Speaker 01:
And in doing so, they were consistent with the dicta in Patel from the Supreme Court where they held that

[00:18:54] Speaker 01:
It would be within the realm of likely that Congress intended for exactly such a result, for no judicial review of discretionary determinations, like the adjustment decision at issue here.

[00:19:10] Speaker 01:
The second point I would raise, Your Honor, in addressing, this is a question that both Judge Bress and Judge Cain raised below, there is judicial review available before an Article III judge

[00:19:24] Speaker 01:
this case or involving these individuals, the plaintiffs here, and how so?

[00:19:30] Speaker 01:
They can, as Your Honor suggested, Judge Bress, challenge the exclusivity provision that precludes currently the plaintiffs from renewing their adjustment decision before an immigration judge.

[00:19:47] Speaker 01:
They would do that, they would raise that challenge, they would go to, they would be

[00:19:52] Speaker 01:
put in removal proceedings, argue that the exclusivity provision raises perhaps unconstitutional, raises constitutional issues, and then they could, presumably the immigration judge would deny that motion.

[00:20:06] Speaker 01:
And in response to your question, Judge Kane, yes, they could then follow up with a challenge to that ruling in a petition for review that they filed pursuant to 1252A2D.

[00:20:23] Speaker 01:
That is a pathway for judicial review.

[00:20:27] Speaker 01:
Because there is a judicial review pathway available to the plaintiffs here, there is no exception to rightness allowing the challenge to be brought in district court.

[00:20:43] Speaker 00:
The plaintiffs are saying, listen, we believe we should get review of this

[00:20:50] Speaker 00:
one way or the other, their position is this cannot just simply be unreviewable.

[00:20:55] Speaker 00:
And I take it what you're saying is, well, they can try to make that argument essentially in the court of appeals in a petition for review.

[00:21:05] Speaker 00:
That would be their mechanism to try to argue that.

[00:21:08] Speaker 01:
Yes, Your Honor, that would be their mechanism.

[00:21:10] Speaker 01:
They would first argue that the exclusivity provision that precludes them currently from renewing their application for adjustment with an immigration judge must be stricken, struck down.

[00:21:23] Speaker 01:
And once they receive that ruling, assuming they do, then they can proceed on remand to challenge, to renew their application for adjustment with the immigration judge.

[00:21:34] Speaker 01:
And there they can,

[00:21:36] Speaker 01:
Bring the, the marriage challenge here, which is that or the government shouldn't be allowed to demand medical examinations.

[00:21:46] Speaker 01:
That's the pathway for judicial review here.

[00:21:48] Speaker 01:
Your honor.

[00:21:49] Speaker 01:
And I think that addresses both your question.

[00:21:52] Speaker 01:
And your question.

[00:21:54] Speaker 01:
The 3rd point as the constitutionality is that.

[00:21:59] Speaker 01:
Ms.

[00:22:00] Speaker 01:
Cabello-Garcia does not have a procedural due process right to judicial review.

[00:22:08] Speaker 01:
This case involves a discretionary determination of a benefit that is a matter of legislative grace.

[00:22:16] Speaker 01:
There's case law that we've cited saying that there are no due process, no constitutional rights,

[00:22:27] Speaker 01:
What they focused on are cases allowing removal.

[00:22:33] Speaker 01:
But this is not a removal case.

[00:22:35] Speaker 01:
Any removal, any threat of removal that the plaintiff faces is purely speculative and we should lay that aside.

[00:22:42] Speaker 01:
Removal cases do implicate due process because they are a constraint on liberty and they do therefore implicate the suspension clause.

[00:22:54] Speaker 01:
And that is why in St.

[00:22:55] Speaker 01:
Cedar and in cases following courts have been careful to preserve a direct pathway for judicial review of removal orders and matters involving removal.

[00:23:08] Speaker 01:
But again, that's not the issue here.

[00:23:10] Speaker 01:
Here we have discretionary determination.

[00:23:13] Speaker 01:
And if anything, what we should focus on is the right of Congress under the exceptions clause of the Constitution itself to limit judicial review.

[00:23:26] Speaker 01:
Justice Jackson in Wilkinson in her concurrence said, when reviewing denials of discretionary relief,

[00:23:32] Speaker 01:
Courts should respect the choice of Congress reflecting the will of the people to limit judicial interference.

[00:23:38] Speaker 00:
I mean, I take it this whole argument is one you think we shouldn't even reach.

[00:23:43] Speaker 00:
You think we should be saying here there is a channeling provision that directs you to the removal process and the petition for review process.

[00:23:52] Speaker 00:
The entitlement to judicial review of the denial of discretionary relief can be raised there.

[00:24:00] Speaker 00:
And this would presumably be the defense you would make if it were raised there.

[00:24:04] Speaker 00:
But it seems to me to resolve what you're talking about here, we would first have to get past the channeling issue.

[00:24:12] Speaker 01:
Yes, your honor, and I believe I've addressed the channel issue to say that there, there is a channel available, but even before you reach that question, your honor, I wanted to return to a point just to clarify.

[00:24:22] Speaker 01:
The class cannot proceed on their collateral claims because there is no.

[00:24:30] Speaker 01:
There is no class representative anymore.

[00:24:33] Speaker 01:
Miss Cabello-Garcia's claim must be dismissed because it is an individual claim.

[00:24:39] Speaker 01:
And without an individual class representative, withstanding the entire class claim, the collateral claims, the ones that opposing counsel says survived NACA must be dismissed.

[00:24:51] Speaker 00:
I mean, one issue obviously is that Cabello, I guess, is not in removal proceedings and

[00:24:56] Speaker 00:
It's not clear when she would be, so she might say, well, you're asking me to be able to tell me I can maybe raise this later, but we don't know when that will be.

[00:25:06] Speaker 00:
Is there a response to that?

[00:25:09] Speaker 01:
It's the response in NACA, Your Honor, which is what the majority of the panel in NACA said that Congress, when it created these channeling provisions,

[00:25:20] Speaker 01:
Yes, it made people wait.

[00:25:22] Speaker 01:
It made people bet the farm.

[00:25:24] Speaker 01:
NACA uses that phrase.

[00:25:25] Speaker 01:
It required them to either leave the country because they're out of status, or stay out of status and wait to be put in removal, and then to raise their legal arguments then.

[00:25:38] Speaker 01:
That's the response there, Your Honor.

[00:25:40] Speaker 00:
What's the government's position on who can actually take advantage of the type of collateral claim that NACA

[00:25:47] Speaker 00:
in District Court, because on the one hand, it says, well, once you've hit, once you had your adjustment of status denied, you're outside of that and you're into the channeling.

[00:26:00] Speaker 00:
But of course, in NACA, the plaintiffs who hadn't had that, their claims weren't ripe yet.

[00:26:04] Speaker 00:
So where is the space between those two things?

[00:26:08] Speaker 01:
That's difficult to say, Your Honor, and it's difficult in part because it's difficult to define what constitutes a collateral claim.

[00:26:17] Speaker 01:
What NACA did do was say that collateral claims are, well, individual claims as opposed to collateral claims are those that refer to, those that are referring to or relying on denials.

[00:26:28] Speaker 01:
So if you have a claim that refers to or relies on the denial, like Ms.

[00:26:32] Speaker 01:
Cabello's claim, that is not collateral.

[00:26:35] Speaker 01:
What NACA seems to say is that you can have collateral claims and if they are right, then they also fall within 1252 A to B and the jurisdictional bar there.

[00:26:50] Speaker 01:
So that's a problem for them.

[00:26:52] Speaker 01:
The only way for collateral claims to proceed is if A, they have a legitimate class rep and B, if they can somehow evade the rightness requirement,

[00:27:04] Speaker 01:
that is A, generally a constitutional requirement, but B, also something that would subject them to the jurisdictional bar of 1252A2B1.

[00:27:15] Speaker 02:
When you say for the collateral challenge, you have to have a typical class rep.

[00:27:20] Speaker 02:
They can still challenge it before class certification.

[00:27:23] Speaker 02:
They were kind of supposed to do a little pre-certification, kind of peek-a-boo analysis of adequacy and typicality.

[00:27:32] Speaker 01:
Well, I mean, I think you don't need, I think it would be clear from the pleadings and it is clear from the cleaners here that that.

[00:27:39] Speaker 01:
The adequacy and typicality is missing because.

[00:27:43] Speaker 01:
Under Naka, Miss Cabello Garcia last standing.

[00:27:47] Speaker 01:
And so that's apparent from NACA and we would ask the court to make that ruling here.

[00:27:56] Speaker 00:
There is this class of people that NACA envisions as being able to bring collateral claims.

[00:28:03] Speaker 00:
They are not people whose adjustment of status has been denied, but they're also not people who haven't taken affirmative steps to seek adjustment of status.

[00:28:14] Speaker 00:
I mean, was there a period in time here in which Ms.

[00:28:17] Speaker 00:
Cabello-Garcia theoretically had a collateral claim?

[00:28:20] Speaker 00:
She would have had to bring it essentially before her claim was denied, but she would have had to do something to move forward with that claim to show that it was right?

[00:28:29] Speaker 01:
Well, Your Honor, I think if...

[00:28:32] Speaker 01:
The problem with Ms.

[00:28:33] Speaker 01:
Cabello-Garcia is that she's not typical of the plaintiff's own class definition.

[00:28:38] Speaker 01:
The class definition that the plaintiffs have raised is that they consist of individuals who have not yet been denied or not yet even applied.

[00:28:49] Speaker 01:
So I suppose if Ms.

[00:28:50] Speaker 01:
Cabello could go back in time, not file an adjustment application, she would then be typical of the class.

[00:29:01] Speaker 01:
Whether the plaintiffs want to refile, they can, but they cannot do so under this action because they lack a class representative.

[00:29:11] Speaker 00:
Let's just say hypothetically, she had brought this lawsuit before she was denied adjustment of status.

[00:29:24] Speaker 00:
Would she be able to get

[00:29:26] Speaker 00:
district court review here under the the css exception in that situation no your honor because the css exception requires the absence of any legal challenge

[00:29:42] Speaker 01:
And here, as Your Honor Judge Bress speculated, there is an avenue by which Ms.

[00:29:51] Speaker 01:
Cabello-Garcia could have challenged, first, the exclusivity provision of the statute and the regulation, which currently precludes her from renewing her application before an immigration check.

[00:30:05] Speaker 01:
She would presume she could seek to win that challenge.

[00:30:08] Speaker 01:
And if she won that challenge,

[00:30:10] Speaker 01:
Then she could renew her application for adjustment before an immigration judge.

[00:30:15] Speaker 01:
And there, with the immigration judge, she could argue that the requirement that she submit a medical examination is arbitrary and capricious.

[00:30:26] Speaker 01:
So again, she could not satisfy the CSS exceptions to rightness because of that channeling.

[00:30:36] Speaker 01:
I see I'm out of time here.

[00:30:37] Speaker 01:
I'm actually over time.

[00:30:38] Speaker 01:
So in summary, your honor, just to wrap up, if I may, NACA concludes the individual challenge here brought by Ms.

[00:30:46] Speaker 01:
Cabello-Garcia.

[00:30:48] Speaker 01:
Because Ms.

[00:30:48] Speaker 01:
Cabello-Garcia's claim must be dismissed, there can be no collateral challenges.

[00:30:53] Speaker 01:
Even if there could be, they are unright and there are no exceptions to the rightness requirement because there is a channeling

[00:31:01] Speaker 01:
there is channeling available of a legal question.

[00:31:04] Speaker 01:
And finally, even if the court could consider the claims, I didn't get to it, but it's in our briefing, the requirement for a medical examination is rational, and therefore the plaintiff's claims should be dismissed for lack, for failure to state a claim.

[00:31:25] Speaker 02:
Great, thank you.

[00:31:27] Speaker 01:
Thank you, Your Honor.

[00:31:32] Speaker 03:
Thank you.

[00:31:33] Speaker 03:
First, I'd like to address a claim that this is not a collateral challenge just because it's in the context of an individual denial.

[00:31:41] Speaker 03:
That's flatly contrary to NACA.

[00:31:45] Speaker 03:
There would be no point to finding that PDATA could even bring this claim

[00:31:51] Speaker 03:
if on a petition for review, if the court were not continuing to recognize it as a collateral challenge to the policy, because after all, what is 1252A2B1 in the first place?

[00:32:04] Speaker 03:
It's a provision that limits the ability to challenge a discretionary judgment.

[00:32:11] Speaker 03:
But here they're saying, even though she got denied, even though there was that judgment, she can still challenge the policy that was the root of that judgment, that was the cause of that judgment, because that policy is the collateral challenge.

[00:32:23] Speaker 03:
Similarly, our client is bringing a collateral challenge to the policy, even though that policy resulted in an individual denial.

[00:32:31] Speaker 02:
Can you address his point or his claim, your friend's claim, that Ms.

[00:32:37] Speaker 02:
Cabello-Garcia isn't a typical or adequate representative to assert this collateral challenge?

[00:32:44] Speaker 03:
Well, first, defendants err in misstating the class.

[00:32:48] Speaker 03:
The class, the proposed class, are those individuals who have applied

[00:32:52] Speaker 03:
or will apply, and that's Ms.

[00:32:54] Speaker 03:
Cabello.

[00:32:55] Speaker 03:
And it doesn't require that they be denied, but it doesn't limit it to folks who have already been denied.

[00:33:02] Speaker 03:
So she's certainly an adequate representative of the class.

[00:33:07] Speaker 03:
She's presented an application.

[00:33:09] Speaker 03:
Every class, proposed class member subject to that same policy.

[00:33:14] Speaker 03:
One, you know, the resolution of that question will address all those individuals, whether

[00:33:20] Speaker 03:
the application has already been denied or whether it's pending before the court.

[00:33:24] Speaker 03:
The other point that I would briefly like to make is that defendants speculate that we could bring a separate constitutional claim to 1255M.

[00:33:35] Speaker 03:
But of course, that requires us to go even further down a path of challenging statutes.

[00:33:42] Speaker 03:
And that's precisely what the Doctrine of Constitutional Avoidance is about.

[00:33:46] Speaker 03:
That in order to avoid those constitutional questions, a statute should be interpreted to alleviate those concerns.

[00:33:55] Speaker 03:
And that also dovetails with the presumption of judicial review.

[00:33:59] Speaker 03:
And I would just conclude with the Supreme Court's admonition in Kukana that where possible or where feasible, that the statute should preserve that judicial review.

[00:34:12] Speaker 03:
And certainly under this court's decision in NACA, which is already determined,

[00:34:17] Speaker 03:
that the policy can be challenged and only then addresses how it should be channeled.

[00:34:23] Speaker 03:
There's an opportunity to interpret the statute that does not require Ms.

[00:34:28] Speaker 03:
Cavello and proposed class members to go down this hypothetical winding path where they file a petition for review

[00:34:38] Speaker 03:
someday when they're ultimately placed in proceedings where they could not challenge this policy, but instead challenge a separate statute that said that, that where Congress dictates who adjudicates this particular type of an adjustment application.

[00:34:53] Speaker 03:
And then only then if they prevail on that, they could get it remanded and start all over.

[00:34:58] Speaker 03:
So that's flatly contrary to the doctrine of constitutional avoidance.

[00:35:03] Speaker 03:
It flies in the face of the doctrine of presumption of judicial review.

[00:35:07] Speaker 03:
And it's inconsistent with this court's holding in Nauka.

[00:35:11] Speaker 03:
And for these reasons, we would request that the court remand the district court's decision back to the district court and allow plaintiff to proceed forward with their claim that this policy is flatly contrary to the statutory scheme that was created by Congress.

[00:35:32] Speaker 02:
Thank you both for the helpful argument.

[00:35:35] Speaker 02:
The case has been submitted and we are adjourned.

[00:35:38] Speaker 02:
Thank you for this session stands adjourned.

[00:35:41] Speaker 02:
Thank you.