[00:00:01] Speaker 01:
Case number 23 that 5138, Srinivasa Saitse Mukavili, a felon, versus Or M. Jadu, Director, U.S.

[00:00:09] Speaker 01:
Citizenship and Immigration Services, and Anthony J. Lincoln, Secretary, U.S.

[00:00:13] Speaker 01:
Department of State.

[00:00:15] Speaker 01:
Mr. Bennett for the felon, Ms.

[00:00:17] Speaker 01:
Vick for the police.

[00:00:24] Speaker 01:
Good morning.

[00:00:25] Speaker 05:
Good morning, Your Honors, and may it please the court.

[00:00:27] Speaker 05:
My name is Brad Bannas.

[00:00:28] Speaker 05:
I represent the appellant, Mr. Mukavilli, in this case.

[00:00:31] Speaker 05:
This court should vacate the lower court's decision because its Rule 12b analysis, 12b6 analysis, engages in improper fact-finding and it improperly says that the agency does not have a duty to make a final decision on a 485 application for adjustment of status.

[00:00:51] Speaker 05:
I want to first address what I call the retrogression argument in this case, because over the course of this case, Mr. Mukavili's visa was current, it retrogressed, and is now current again.

[00:01:05] Speaker 02:
I read the government- Before you get to the merits of that, if you could address the jurisdiction stripping argument that the government has made, how do we have jurisdiction to hear this case under 1252?

[00:01:17] Speaker 05:
Neither 1252A2B1, neither provision restricts judicial or jurisdiction over inaction.

[00:01:29] Speaker 05:
You'd have to interpret the terms by either 1252A2B1 or A2B2 to define action to mean inaction.

[00:01:37] Speaker 05:
And interpreting a word to means antonym would basically render that provision superfluous.

[00:01:45] Speaker 02:
Isn't having discretion over an action or a decision also having discretion about whether to take that action?

[00:01:53] Speaker 02:
or delay the action or decision.

[00:01:55] Speaker 02:
I mean, isn't that part of the discretion?

[00:01:58] Speaker 02:
No, Your Honor.

[00:01:58] Speaker 02:
Government has under 1255A.

[00:02:00] Speaker 05:
No, Your Honor.

[00:02:02] Speaker 05:
They are required to make a final decision under 8 USC 1154B.

[00:02:08] Speaker 05:
They don't dispute that.

[00:02:09] Speaker 05:
They have a requirement to make a final agency action on a properly filed adjustment status application.

[00:02:14] Speaker 05:
I would point you to a case out of the Ninth Circuit

[00:02:16] Speaker 05:
from December of 2023, identical issue.

[00:02:19] Speaker 05:
The government made the same arguments in the Ninth Circuit, did not find that either provision precluded jurisdiction.

[00:02:25] Speaker 05:
That's called a barrier versus blinking.

[00:02:28] Speaker 02:
Well, they may have a duty to eventually make a decision, but do they have a duty to or an obligation to?

[00:02:33] Speaker 02:
You know, do they have discretion about the timing of that decision?

[00:02:37] Speaker 05:
They do as long as it remains reasonable, because the Administrative Procedure Act requires them to make a final decision within a, quote, reasonable amount of time.

[00:02:46] Speaker 05:
And again, nothing in 12, well, 1252A, I think the only provision that's relevant here, if we're talking about the retrogression argument, would be 1252A2B1, because that specifically identifies actions for adjustment of status applications.

[00:03:00] Speaker 05:
If we read 1252A2B2 to just fill in the gaps, the 1252A2B1 doesn't cover, it renders it superfluous.

[00:03:08] Speaker 02:
Well, that's one way of thinking about it.

[00:03:10] Speaker 02:
But another way of thinking about it is that decision or action has to mean something different than a judgment under 1252A2B1.

[00:03:22] Speaker 05:
And I would suggest, Your Honor, if you interpret decision or action to mean indecision or inaction,

[00:03:28] Speaker 05:
If it means everything, it means nothing.

[00:03:30] Speaker 05:
And for that reason, Your Honor, no court has, no, I should say no circuit court has agreed with the agency in this, on this position.

[00:03:38] Speaker 05:
And I would note on this particular issue, whether there is federal jurisdiction over retrogression cases, has been decided in the Ninth Circuit.

[00:03:45] Speaker 05:
It's currently pending in the Fifth Circuit.

[00:03:46] Speaker 05:
and the Eighth Circuit, we have arguments in both the Third Circuit and the First Circuit on this issue in the next month.

[00:03:54] Speaker 05:
And again, none of those circuit courts, there's only been one decision admittedly, but none of them have seriously considered from what I can tell this jurisdiction stripping argument.

[00:04:06] Speaker 04:
Now whether, I'm sorry.

[00:04:07] Speaker 04:
Can I ask you about whether

[00:04:10] Speaker 04:
count one is still before us.

[00:04:12] Speaker 04:
This was the count that I think dealt with the rural visa program under the Reform Act.

[00:04:18] Speaker 04:
I didn't see any arguments about it in your opening brief.

[00:04:21] Speaker 04:
Is that kind of forfeited?

[00:04:23] Speaker 04:
Yes, Your Honor.

[00:04:24] Speaker 04:
OK.

[00:04:24] Speaker 04:
And count four, the government says it's gone as well.

[00:04:29] Speaker 04:
They used to expedite the equestrian stuff, and now they don't expedite it anymore.

[00:04:35] Speaker 04:
We did not challenge that on appeal.

[00:04:37] Speaker 04:
No, Your Honor.

[00:04:40] Speaker 04:
or counts two and three, your reply brief says, first line of the reply brief is as of January 1st, 2024.

[00:04:52] Speaker 04:
Those arguments will be rendered moot because state announced the EB-5 immigrant visas will be immediately available.

[00:05:06] Speaker 04:
Should we call Mr. Teza or Mr. Mukabili?

[00:05:09] Speaker 04:
everyone you prefer your honor.

[00:05:11] Speaker 04:
All right.

[00:05:11] Speaker 04:
Tesla's easier to type over and over again.

[00:05:13] Speaker 04:
Very good.

[00:05:14] Speaker 04:
So since we're now past January, our claims two and three, you say they will be rendered moot.

[00:05:19] Speaker 04:
Are they moot as well?

[00:05:21] Speaker 05:
Mr. Mukaville is a priority date.

[00:05:23] Speaker 05:
September of 2020 is now current.

[00:05:26] Speaker 05:
And so it is moot.

[00:05:29] Speaker 05:
Is it capable of repetition while evading review?

[00:05:32] Speaker 05:
I don't know.

[00:05:34] Speaker 05:
The visa bulletin moves forwards and backwards all the time.

[00:05:37] Speaker 05:
And I think that's

[00:05:39] Speaker 04:
uh something that congress did not intend right if we were to write an opinion that says it's your burden to show our jurisdiction and we don't have jurisdiction if it's moot you've said it's moot i think that just leaves count five is that right

[00:05:54] Speaker 05:
I'm perfectly fine with that, Your Honor.

[00:05:55] Speaker 05:
And when I wrote the reply brief, I agree with that.

[00:05:59] Speaker 05:
However, in 10 days when the new visa bulletin comes out, it could be alive again.

[00:06:05] Speaker 05:
And if I understood the government's letter that was filed recently, they do not think it's moot.

[00:06:11] Speaker 05:
I didn't really understand the contents of their letter.

[00:06:14] Speaker 05:
But it's your burden to show.

[00:06:16] Speaker 05:
Your Honor, I do think it's moot.

[00:06:18] Speaker 05:
It's current right now.

[00:06:20] Speaker 05:
And I reserved four minutes for rebuttal

[00:06:25] Speaker 02:
I have a question.

[00:06:27] Speaker 02:
Um, so this court into Costa recently held that the same priority rule of C. I. S. Was not an unreasonable delay.

[00:06:35] Speaker 02:
I mean, distinguishes this case from the Costa.

[00:06:38] Speaker 05:
Great question, Your Honor.

[00:06:39] Speaker 05:
Um, to Costa, this case simply has more facts.

[00:06:42] Speaker 05:
First off, with all due respect to the panel and the circuit, I think it's fall.

[00:06:46] Speaker 02:
I think you see.

[00:06:47] Speaker 02:
Even if it's wrong, it's still binding on us.

[00:06:49] Speaker 05:
It is, but it is limited to the four corners of the complaints that they reviewed.

[00:06:52] Speaker 05:
This is a Rule 12b6 motion.

[00:06:54] Speaker 05:
They went through all the allegations and claimed they were not specific non-conclusory allegations that stated a plausible claim.

[00:07:02] Speaker 05:
So that's the biggest difference.

[00:07:03] Speaker 05:
This is a new complaint.

[00:07:04] Speaker 05:
The biggest difference between this complaint and the Vegas, which was my client's in the Dacosta case, is that we have a lot more evidence about how the agency does not have a rule

[00:07:16] Speaker 05:
a processing logic they apply consistently, or have any rule that governs the amount of time it takes for them to make a decision on a form I-526.

[00:07:25] Speaker 05:
And in this case, unlike the Vega case, we had the FOIAs.

[00:07:29] Speaker 05:
We finally got them before we filed Mr. Mugavilli's case.

[00:07:32] Speaker 05:
And so we have evidence to support our allegations for four years, including the time Mr. Mukavilli was involved.

[00:07:41] Speaker 05:
The agency was expediting a handful of over 200 applications that were getting decisions in 30 days versus 30 months.

[00:07:49] Speaker 05:
Mr. Mukavilli invested in this project to take advantage of that.

[00:07:53] Speaker 05:
And then they stripped it from them.

[00:07:54] Speaker 05:
And we have the emails now that are properly in front of this court.

[00:07:58] Speaker 05:
The Costa court found they were not.

[00:08:00] Speaker 05:
They also only looked at them under the sixth track factor for impropriety.

[00:08:04] Speaker 05:
And I would suggest they go to the first track factor.

[00:08:07] Speaker 05:
Does the agency actually apply its, quote, processing logic in a consistent way?

[00:08:15] Speaker 05:
And I think that's all we have to show, Your Honor.

[00:08:17] Speaker 02:
I can't be consistent, or does it have to be reasonable?

[00:08:20] Speaker 02:
At this point, Your Honor, is that the same thing?

[00:08:23] Speaker 05:
I think there's two different questions.

[00:08:26] Speaker 05:
Do they have a rule that governs the amount of time it takes to make a decision?

[00:08:29] Speaker 05:
And do they apply it?

[00:08:31] Speaker 05:
The second one's a fact intense question.

[00:08:33] Speaker 05:
And we now have evidence that at least for over 200 investors, they didn't apply it at all.

[00:08:37] Speaker 05:
They threw it out in the wind for whatever reason, whether improper or proper.

[00:08:40] Speaker 05:
It is key evidence that they didn't do it.

[00:08:43] Speaker 05:
We also now have evidence that the agency is deciding applications that were filed in 2023 in six months, leaving

[00:08:53] Speaker 05:
the folks who invested under the prior law out in the cold.

[00:08:57] Speaker 05:
And so Mr. Mukavilli's link, or it should be line, placing the lines getting longer and longer every day.

[00:09:03] Speaker 05:
And for that reason, I think this is very distinguishable to DeCosta.

[00:09:07] Speaker 05:
I would also suggest, if you'll humor me, that DeCosta is wrong.

[00:09:11] Speaker 05:
It basically looks at my complaint that says the stoplight was red, looks at the agency's responses, the stoplight was green, and says, yep, it was green.

[00:09:19] Speaker 05:
That's an improper review of Rule 12b-6.

[00:09:22] Speaker 05:
It's not a time to weigh the evidence.

[00:09:24] Speaker 05:
And I think that was DeCosta's big error.

[00:09:27] Speaker 05:
I will also note it's caused a circuit split between this circuit, the Fourth Circuit, the Sixth Circuit.

[00:09:33] Speaker 05:
And other courts have chosen not to apply it.

[00:09:35] Speaker 05:
So I do think there's no need to overturn it, but there is a need to distinguish it.

[00:09:41] Speaker 05:
because of the specifics in this complaint.

[00:09:45] Speaker 05:
Thank you.

[00:09:46] Speaker 05:
Thank you.

[00:10:06] Speaker 00:
Good morning, Your Honors.

[00:10:07] Speaker 00:
Lindsay Vick on behalf of the government.

[00:10:10] Speaker 00:
This court should affirm the district court on both the grounds that it lacks subject matter jurisdiction over the adjustment of status claim and the denial of the motion to dismiss the visa petition claim.

[00:10:22] Speaker 02:
I want to begin by discussing Mr. Mukavili's visa petition claim because that's the- Let me ask you about, I mean, the government here argues that the failure to meet 7061 means that we lack jurisdiction.

[00:10:38] Speaker 02:
But the APA is not a subject matter jurisdiction conferring statute.

[00:10:45] Speaker 02:
Isn't that a failure to state the claim?

[00:10:46] Speaker 02:
I'm wondering, what is the government's basis for saying the failure to meet a 7061 claim is it goes to our jurisdiction?

[00:10:54] Speaker 00:
The basis is under North, East, Southern Utah, Wilderness Alliance.

[00:10:59] Speaker 02:
And that case- North is a mandamus case.

[00:11:02] Speaker 02:
Well, I mean, Norton talks about how the unreasonable delays under mandamus and mandamus goes to subject matter jurisdiction.

[00:11:08] Speaker 02:
It doesn't mean the APA claim goes to subject matter jurisdiction.

[00:11:11] Speaker 00:
Correct, but Norton also talked about how mandamus claims are very similar to APA claims.

[00:11:17] Speaker 02:
Well, they're similar in their reasoning.

[00:11:19] Speaker 02:
That doesn't mean that, that doesn't, like the reasoning of Norton doesn't turn the APA into a jurisdiction conferring statute.

[00:11:29] Speaker 00:
I think the main point there is that you do need a discrete legal duty that the agency has violated in order to have subject matter jurisdiction over an unlawful withholding or unreasonable delay claim.

[00:11:43] Speaker 02:
Why is that a matter of subject matter jurisdiction as opposed to failure to state a claim?

[00:11:47] Speaker 02:
I'm a little surprised that the government is a little bit loose about this, both in the district court and here.

[00:11:52] Speaker 02:
I mean, I can't find

[00:11:54] Speaker 02:
any case support for the idea that a 7061, you know, the failure to state a claim for that goes to our subject matter jurisdiction.

[00:12:04] Speaker 02:
Can you cite any cases that say that?

[00:12:07] Speaker 00:
Well, we were invited to provide supplemental briefing on Norton in the district court, and so that's why the briefing went that way there.

[00:12:16] Speaker 00:
I think our stronger subject matter jurisdiction argument, though, is that 1252A2B1 and B2

[00:12:24] Speaker 00:
do preclude review of the adjustment of status claims here.

[00:12:27] Speaker 04:
Just to follow up on that line of questioning though, we have a case PETA versus Department of Agriculture from 2015 to 7061 case and it refers to that claim as quote non-jurisdictional.

[00:12:46] Speaker 04:
It seems like we have precedents that say 7061 claims are non-jurisdictional.

[00:12:49] Speaker 04:
It seems like you don't have any precedents that say they are jurisdictional.

[00:12:54] Speaker 04:
right?

[00:12:55] Speaker 00:
I do not have anything at my fingertips at this moment.

[00:13:00] Speaker 02:
It's an important point that the government should be getting right.

[00:13:03] Speaker 02:
I mean, whether the APA provision here goes to jurisdiction or not seems like a cross-cutting issue that

[00:13:11] Speaker 00:
Right.

[00:13:11] Speaker 00:
Well, and I think that there are cases in the circuit that lend mandamus and APA standards.

[00:13:18] Speaker 02:
Not with respect to jurisdiction.

[00:13:20] Speaker 02:
The standards may be similar.

[00:13:21] Speaker 02:
You have to have a discrete duty and the like, but they don't say that it's jurisdictional.

[00:13:29] Speaker 00:
I understand, Your Honor, and I think I would just say that our stronger subject matter jurisdiction argument is under 1252A2B2.

[00:13:38] Speaker 00:
And any to be one and you know is that below though.

[00:13:41] Speaker 02:
Excuse me, you didn't raise that below did you we we did raise that low.

[00:13:46] Speaker 00:
Yes, yes, it wasn't briefed at length, but we did raise this below.

[00:13:55] Speaker 03:
And so for clarification on that argument, your 1252 argument, you're not arguing that that bars the unreasonable delay claim.

[00:14:04] Speaker 03:
Just counts two and three, the unlawful withholding claims, correct?

[00:14:08] Speaker 00:
The claims relating to the adjustment of status.

[00:14:11] Speaker 00:
And that is because 1252A2B1 is clear that it precludes review of any judgment regarding the granting of relief.

[00:14:22] Speaker 00:
And

[00:14:23] Speaker 00:
That covers when and how adjustment status is determined, how those applications are adjudicated, and when a visa number attaches.

[00:14:32] Speaker 00:
And I think before getting too far into those arguments, it would be helpful to explain the visa number process.

[00:14:40] Speaker 00:
And what could have happened if Mr. Mukavili had been given a visa number when he applied, but then was later denied.

[00:14:47] Speaker 00:
So first USCIS approves the visa petition.

[00:14:51] Speaker 00:
Then second, USCIS reviews the Adjustment of Status application and determines whether there are any bars to eligibility or inadmissibility.

[00:15:01] Speaker 00:
And then third, they decide whether to exercise their discretion and grant the application.

[00:15:06] Speaker 00:
Fourth, once that's completed, USCIS looks to the visa bulletin and if a visa number is available, they send a request to the State Department for a visa number.

[00:15:18] Speaker 00:
At that point, an officer proceeds to approval.

[00:15:21] Speaker 00:
And then state reduces by one the visa numbers.

[00:15:24] Speaker 02:
I think we're familiar with the process in our briefing.

[00:15:26] Speaker 02:
But so in the government's view, what is the judgment here that's within the discretion of CIS?

[00:15:35] Speaker 02:
Is it the judgment about the timing about processing?

[00:15:39] Speaker 02:
Is it the government's position?

[00:15:40] Speaker 02:
I mean, the briefing is a little loose about this.

[00:15:42] Speaker 02:
I mean, is the thing that's within the discretion whether to make a decision at all or whether to make a decision in a certain amount of time?

[00:15:49] Speaker 00:
The judgment is wrapped up in that process that I was just describing.

[00:15:53] Speaker 02:
The timing or whether to make a decision at all?

[00:15:58] Speaker 00:
It goes to whether to make a decision at all and the timing.

[00:16:04] Speaker 00:
And that is because if at the step where they found a visa was not available, then they would not move forward with approval.

[00:16:12] Speaker 00:
And so in the case, the way Mr. Muvvili argues it, if he had been issued the visa number at the time he filed and then it was later not available, then at the time you would have that visa number from that fiscal year that it was issued.

[00:16:29] Speaker 00:
And then if it's later denied, that visa number is lost because it cannot roll over into the other EB categories, which it normally would if it had not been wasted.

[00:16:43] Speaker 00:
And so the discretionary decision here is the decision of when and how to make this adjustment of status approvals.

[00:16:54] Speaker 04:
You know where Mr. Tesa is now in that process?

[00:16:58] Speaker 00:
He has a pending 526 petition.

[00:17:02] Speaker 00:
His visa petition remains pending, and his adjustment of status application also remains pending.

[00:17:09] Speaker 00:
And importantly there, the agency will not approve an Adjustment of Status application without an approved visa petition.

[00:17:17] Speaker 00:
That is one of the core eligibility requirements to Adjustment of Status.

[00:17:24] Speaker 03:
So can you address the unreasonable delay claim?

[00:17:27] Speaker 03:
And in particular, I think the plaintiff's argument is that the one distinction from Dacosta is that they have more evidence that the government's not actually following its stated processing logic.

[00:17:38] Speaker 03:
Can you just give us your response to that?

[00:17:41] Speaker 00:
Yes, Your Honor.

[00:17:41] Speaker 00:
And so the visa availability analysis changed only slightly since Dacosta.

[00:17:48] Speaker 00:
And I believe that the Dacosta court was informed about the change prior to the decision.

[00:17:55] Speaker 00:
They still follow the visa availability approach with an efficiency adjustment.

[00:17:59] Speaker 00:
And that efficiency adjustment was made to the third queue where visas are available and projects have been reviewed.

[00:18:05] Speaker 00:
And they're working through the backlog by bundling certain petitions.

[00:18:09] Speaker 00:
And in the briefing in Dacosta and in this case, my friend on the other side has made similar arguments that there is no line and that USCIS just

[00:18:23] Speaker 00:
Fixed petitions out of a pile and decides them.

[00:18:26] Speaker 00:
And obviously that is a more negative spin on what's going on.

[00:18:31] Speaker 00:
But it doesn't necessarily contradict what the agency is doing because it is not doing a straight 50 first in first out approach.

[00:18:38] Speaker 00:
It is dividing the petitions based on visa availability.

[00:18:42] Speaker 00:
based on whether the review project has been reviewed, and then dividing them into workflows.

[00:18:48] Speaker 00:
And so the agency has been very clear on its websites, provides a lot of updates, provides a lot of detailed question and answer sessions about this complex approach that it uses for these complex petitions.

[00:19:04] Speaker 02:
For the unlawful withholding claim, the government argues that the agency isn't legally required to take this action in a certain amount of time.

[00:19:15] Speaker 02:
But with respect to the unreasonable delay claim, is the government making that same threshold argument?

[00:19:24] Speaker 02:
We do not make... Because that argument is the first argument of an unreasonable delay claim as well.

[00:19:30] Speaker 00:
Correct.

[00:19:31] Speaker 00:
Correct.

[00:19:31] Speaker 00:
Yes.

[00:19:32] Speaker 00:
And in the context of the visa petitions, we have not generally made that claim.

[00:19:37] Speaker 00:
I understand the district court below thought that there was a persuasive argument to be made that there is no duty.

[00:19:43] Speaker 00:
But the visa petition is governed by a very different statute that contains very different language and doesn't have the same very strong discretionary language that the Adjustment of Status statute has.

[00:19:56] Speaker 00:
So we don't.

[00:19:58] Speaker 02:
So the government is solely relying on the track factors.

[00:20:01] Speaker 02:
Correct.

[00:20:01] Speaker 02:
That's correct.

[00:20:03] Speaker 02:
You're conceding that there's a legal obligation.

[00:20:07] Speaker 00:
I don't know that we want to concede it, but we haven't pressed the argument into Costa.

[00:20:13] Speaker 00:
We did not press the argument there.

[00:20:16] Speaker 00:
And so our stronger argument is that the track factors.

[00:20:21] Speaker 02:
And I'm sorry, what is the distinction?

[00:20:23] Speaker 02:
So your thought is that the threshold question is different for unlawful withholding than for unreasonable delay, that there's a different legal framework?

[00:20:32] Speaker 02:
I mean, isn't it the same question about whether the government is required to take this action within a certain amount of time?

[00:20:40] Speaker 00:
Correct, you need to have a duty to do something in order to then delay it.

[00:20:45] Speaker 02:
So shouldn't the argument be the same in both contexts, that there is no duty?

[00:20:49] Speaker 00:
Well, that's not the way we've decided to argue these types of claims.

[00:20:54] Speaker 00:
And again, we think it's because the statute that applies to 526 petitions is much more detailed and could be construed to create a duty.

[00:21:07] Speaker 00:
But again, it's not something that I have

[00:21:09] Speaker 00:
briefed or that we have briefed in other cases.

[00:21:14] Speaker 00:
So again, I don't want to concede it, but it's not an argument that we have pressed here.

[00:21:20] Speaker 04:
One more.

[00:21:23] Speaker 04:
You may have been going here earlier, but in DeCosta, at the very end of that opinion, our court was

[00:21:33] Speaker 04:
in reprimanding the government for not being clear about the EB-5 process.

[00:21:37] Speaker 04:
So now that we're back, is there anything you can tell us that would give us insight into how that works?

[00:21:44] Speaker 04:
And again, I think maybe you had started earlier, but what can you tell us now that you couldn't, and you weren't the attorney then.

[00:21:51] Speaker 04:
Right.

[00:21:52] Speaker 04:
Can you tell us now that that attorney couldn't tell us then?

[00:21:55] Speaker 00:
Well, I think

[00:21:57] Speaker 00:
What went wrong there was the description of the visa availability approach, which I can go into more detail.

[00:22:04] Speaker 00:
But basically, that's the agency's rule of reason.

[00:22:08] Speaker 00:
And it's now the visa availability approach with an efficiency adjustment.

[00:22:12] Speaker 04:
It's where you don't review the applications first come first serve if the applicant is from a country that's already filled the 7%.

[00:22:19] Speaker 00:
Right.

[00:22:20] Speaker 00:
So it divides the petitions into three workflows.

[00:22:22] Speaker 00:
And so view number one is for petitions where there's no visa available.

[00:22:27] Speaker 00:
Queue number two is where a visa is available but the underlying project hasn't been reviewed.

[00:22:34] Speaker 00:
And the third queue is where there's a visa available and the project has been reviewed.

[00:22:40] Speaker 00:
And then it has decided with the efficiency adjustment to bundle petitions that were filed prior to November 30th, 2019 by review project and then order them based on the earliest filed petition in that grouping.

[00:22:56] Speaker 00:
And that was because prior to November 30th, 2019, there was a crush of applications because there was about to be a new rule that raised the minimum investment amount.

[00:23:06] Speaker 00:
So a lot of people got applications in prior to November 30th.

[00:23:14] Speaker 02:
Thank you.

[00:23:14] Speaker 00:
Okay.

[00:23:14] Speaker 00:
Thank you, your honors.

[00:23:15] Speaker 00:
And I ask that you affirm the ruling of the district.

[00:23:25] Speaker 02:
Yes, we'll give you two minutes on rebut.

[00:23:27] Speaker 05:
Thank you.

[00:23:28] Speaker 05:
I'll be very quickly or very quick.

[00:23:30] Speaker 05:
First, the agency's argument under discretion requires them to actually be exercising discretion.

[00:23:37] Speaker 05:
In their briefs, they make clear they do not think they have the legal ability to decide an I-485 application for someone with a retrogressed visa number, something that's not current.

[00:23:46] Speaker 05:
In the DACA case, DHS versus Regents of California, the Supreme Court pointed out that there has to be an actual exercise of discretion.

[00:23:53] Speaker 05:
If it's a misunderstanding of law, and that's why they're refusing to do something, it does not a discretionary decision.

[00:23:58] Speaker 05:
I think that applies here.

[00:24:01] Speaker 05:
In support of that, I would note that there is no evidence in the record, any discretionary decision to stop making a decision on Mr. Mukaville's specific I-45 because he retrogressed.

[00:24:12] Speaker 05:
That's nowhere in this record, period.

[00:24:14] Speaker 05:
Of course, we lost the motion to dismiss so the government could get an opportunity if that exists.

[00:24:19] Speaker 05:
But again, they believe it's a legal deficiency.

[00:24:21] Speaker 05:
They believe it's illegal.

[00:24:23] Speaker 05:
It is illegal for them to make a decision unless he's current.

[00:24:26] Speaker 05:
So I would suggest that there is no discretion here.

[00:24:30] Speaker 05:
These two provisions do not come into play at all.

[00:24:33] Speaker 05:
As for the 12b6, I would suggest that processing logic is not enough under the first track factor.

[00:24:39] Speaker 05:
If an application goes into an agency and comes out of it, we can always describe the path it went.

[00:24:44] Speaker 05:
What the first track factor says are there guardrails in that that that rule that prevent applications from pending six years seven.

[00:24:54] Speaker 05:
For example, I deposed the Department of Labor yesterday perm applications.

[00:24:57] Speaker 05:
If an application goes more than one month after being assigned, it falls onto another list.

[00:25:02] Speaker 05:
It's caught up in a search.

[00:25:03] Speaker 05:
And they point that out and give it to the adjudicators to do the next week.

[00:25:06] Speaker 05:
That is something that governs the amount of time it takes to make a decision.

[00:25:11] Speaker 05:
There's none of that in the 526 context.

[00:25:14] Speaker 05:
There's nothing that prevents an application from pending eight, nine years.

[00:25:17] Speaker 05:
No guardrails.

[00:25:18] Speaker 05:
That means there's no rule of reason, regardless of whether we can describe how the application goes from the mail to a final decision five years later.

[00:25:26] Speaker 05:
And that's why we would ask this court to vacate the lower course decision.

[00:25:31] Speaker 05:
Let us finish our case.

[00:25:32] Speaker 05:
Thank you, Your Honors.

[00:25:36] Speaker 05:
Thank you.