[00:00:01] Speaker 00: Case number 23-5204, Ryan Castanerra, appellant versus Christine Owen, secretary for the Department of Homeland Security in her official capacity at out. [00:00:12] Speaker 00: Mr. Castanerra for the appellant, Ms. [00:00:15] Speaker 00: Beach, appointed amicus curiae for the appellant, Ms. [00:00:18] Speaker 00: Ramel for the appellees. [00:00:20] Speaker 07: Good morning. [00:00:22] Speaker 07: Mr. Castanerra, here from you. [00:00:27] Speaker 07: First. [00:00:35] Speaker 04: Good morning, Your Honors. [00:00:37] Speaker 04: Mr. Chief Justice, may it please the court? [00:00:40] Speaker 04: I'm Ryan Castaner. [00:00:41] Speaker 04: I'm humbled to be appearing here pro se. [00:00:45] Speaker 04: Congress enacted the Adam Walsh Act in 2006 in order to protect children from dangerous offenders. [00:00:50] Speaker 04: As part of that effort, Congress made minor adjustments to the immediate family relative status adjustment process of the INA. [00:00:59] Speaker 04: Congress removed a subset of those petitions from the Attorney General's purview [00:01:03] Speaker 04: and entrusted a gatekeeping no-risk determination to the discretion of the Secretary of Homeland Security. [00:01:10] Speaker 04: Congress did not grant unbounded discretion for that determination because, among other things, it left legal determinations squarely to the Attorney General. [00:01:20] Speaker 04: The District Court erred in concluding that the Secretary's discretion includes disregarding settled questions of law and binding regulations and could thus trigger a jurisdictional bar [00:01:32] Speaker 04: I welcome the court's question. [00:01:38] Speaker 05: So how do we know that Congress intended to allow review of the standard of review as opposed to considering that to be within the secretary's discretion? [00:02:00] Speaker 04: Well, I think, Your Honor, the Supreme Court handled that in Kukana when it addressed this particular jurisdiction stripping statute. [00:02:07] Speaker 04: And it gave massive effect to the language specified in subchapter two of the INA. [00:02:14] Speaker 04: And subchapter one is the power allocating provisions of the INA, which conferred upon the attorney general and only the attorney general to determine questions of law. [00:02:24] Speaker 04: And it states specifically that those are binding in the execution of the INA. [00:02:29] Speaker 04: I don't believe Congress silently changed that statutory scheme with the minor adjustments it made to the family petition process. [00:02:39] Speaker 05: Here we have two separate statutes that talk about unreviewable discretion. [00:02:48] Speaker 05: We have the provision in I guess it's 1154 about [00:02:56] Speaker 05: sole and unreviewable discretion. [00:03:00] Speaker 05: And then we have 1252 that says, decisions in this subchapter, which 1154 is part of, shall not be subject to judicial review. [00:03:17] Speaker 05: And there, I believe that the statute uses the terms [00:03:25] Speaker 05: decision or action. [00:03:29] Speaker 05: So we can have two separate instances where Congress makes clear that the decision or action or that the determination or determines will not be subject to judicial review. [00:03:55] Speaker 05: Aren't those all pretty broad words, decision, action, determined? [00:04:01] Speaker 04: I believe they are pretty broad. [00:04:03] Speaker 04: It's a pretty broad language, yes, your honor. [00:04:05] Speaker 04: However, in the jurisdiction stripping provision, again, we are combining ourselves only to subchapter two of the INA. [00:04:12] Speaker 04: And in subchapter one, which is what sets up the power allocating scheme between the executive actors of the government that execute the INA, [00:04:24] Speaker 04: the Congress found no reason to grant the secretary discretion over matters of law that are settled by the attorney general and specifically says that they're binding. [00:04:37] Speaker 04: So, you know, as you know, it is the purview of these courts to construe statutes. [00:04:42] Speaker 04: And I don't think Congress intended with that language to write a statute never for the court ever to construe it ever to see what its actual breadth is. [00:04:55] Speaker 07: Thank you. [00:04:56] Speaker 07: Can I just ask, under your argument, under this part of your argument at least, it wouldn't necessarily mean that the secretary would have to make a different determination. [00:05:08] Speaker 07: It would just, it would mean that the secretary would have to make the determination anew, but then could reach the same conclusion? [00:05:14] Speaker 04: He absolutely could, Your Honor. [00:05:16] Speaker 04: Absolutely. [00:05:17] Speaker 04: However, if you read the actual denial notice that the secretary put out in this case, you can see that he uses a standard of proof that is not what regulation or the attorney general has determined is appropriate. [00:05:30] Speaker 04: So I think he would have to begin a new that determination process confined to those parameters. [00:05:38] Speaker 07: Make sure my colleagues don't have additional questions for you, Mr Kessner. [00:05:42] Speaker 07: Thank you. [00:05:43] Speaker 07: Thank you, Your Honor. [00:05:47] Speaker 07: We'll hear from the amicus now. [00:05:52] Speaker 02: Good morning, your honor. [00:05:53] Speaker 02: So may it please the court. [00:05:54] Speaker 02: My name is Kate Stetson. [00:05:55] Speaker 02: I am here this morning in my capacity as a supervising attorney for the Appellate Litigation Clinic of the University of Virginia School of Law. [00:06:03] Speaker 02: And I'm pleased to introduce Cameron Beach, who will be arguing for amicus. [00:06:07] Speaker 07: Thank you. [00:06:08] Speaker 07: Speech. [00:06:15] Speaker 01: Good morning, Your Honors, and may it please the court. [00:06:18] Speaker 01: You heard briefly from Mr. Castanera about one of the legal issues today. [00:06:21] Speaker 01: I'd like to discuss fully the three issues that are presented on appeal. [00:06:27] Speaker 01: The first concerns jurisdiction, as you heard from Mr. Castanera. [00:06:30] Speaker 01: The second, the Accardi doctrine, and the third, the substantive scope of the Adam Walsh Act. [00:06:36] Speaker 01: Now, we think that the district court had jurisdiction to review Castanera's Accardi claim. [00:06:41] Speaker 01: But we also think that the Adam Walsh Act doesn't apply to his conduct at all. [00:06:45] Speaker 01: So I'm going to begin, as the briefs do, with jurisdiction. [00:06:48] Speaker 01: But I'd be happy to move to that third argument as the court is interested. [00:06:53] Speaker 01: On jurisdiction, the district court declined to review Mr. Castaneda's federal claims because it reasoned that two statutes, the Adam Walsh Act and the Illegal Immigration Reform Act, together barred its jurisdiction. [00:07:05] Speaker 01: But that conclusion defies the plain text of the Adam Walsh Act and ignores relevant Supreme Court precedent. [00:07:11] Speaker 01: I'll start with the act itself and the Form I-130 process here. [00:07:14] Speaker 01: The agency generally grants these Form I-130s unless it finds that the petitioner had previously been convicted of a specified offense against a minor. [00:07:25] Speaker 01: In those cases, the Adam Walsh Act directs the secretary to, quote, determine that the citizen poses no risk to his or her beneficiary. [00:07:34] Speaker 01: In turn, Congress has committed that determination to the Secretary's sole and unreviewable discretion. [00:07:38] Speaker 01: Now, the Supreme Court in McNary versus Haitian Refugee Center has told us that when Congress commits a, quote, determination to the Secretary's discretion, that grant of unreviewable discretion protects only the Secretary's final decision on the merits from judicial review. [00:07:56] Speaker 01: It does not protect what the Supreme Court called in McNary, quote, general collateral challenges to illegal policies used by the agency in processing applications. [00:08:06] Speaker 01: So too here. [00:08:07] Speaker 01: Now, to evade McNary, the government argues that the word determine, as used here in the Adam Walsh Act, is somehow vastly different from the word determination, as used in the statute at issue in McNary. [00:08:19] Speaker 01: The government argues that that word, determine, shrouds all of the Secretary's legal determinations and unreviewable discretion, as it does the final choice on the merits. [00:08:29] Speaker 01: Now, that's a lot of weight to put on the word determine, and that's not what the word means. [00:08:35] Speaker 01: Your honors, the plain meaning of the word determine is to fix conclusively or authoritatively to settle a question or controversy. [00:08:43] Speaker 01: The word connotes finality. [00:08:46] Speaker 07: I mean, I think one thing that [00:08:50] Speaker 07: is a little tricky for your submission, I think, relative to some of the language that you understandably rely on for some of the decisions. [00:08:58] Speaker 07: If there's a part of the process that is collateral, to use the word you used, that may be one thing. [00:09:05] Speaker 07: But it's a little more difficult to think of [00:09:08] Speaker 07: the burden that goes directly to the conclusion as being truly collateral in that same way, because it seems intimately bound up with the conclusion. [00:09:17] Speaker 07: The ultimate determination here, which is in the Secretary's sole and unreviewable discretion, and as you acknowledge, is in their sole and unreviewable discretion, is if the citizen poses no risk. [00:09:31] Speaker 07: And it's just hard to think of that no risk calculus without thinking about [00:09:36] Speaker 07: the threshold for making the no-risk calculus, they seem intimately bound up with each other. [00:09:40] Speaker 07: So even if you could draw a distinction between matters that are collateral and the ultimate determination, this one seems tighter. [00:09:48] Speaker 01: I think you can draw that distinction, Your Honor. [00:09:50] Speaker 01: And I actually point you to the Supreme Court's decision in McNary itself, where the Supreme Court drew that same distinction. [00:09:56] Speaker 01: And what the Supreme Court did in that case was to look at the effects of the challenge should the plaintiffs have won. [00:10:03] Speaker 01: If the effect of the challenge, as you pointed out when you spoke with Mr. Castanera, Chief Judge, if the effect of the challenge is to fully grant the plaintiff a win on the merits, let's say an arbitrary and capricious challenge to the ultimate decision, [00:10:15] Speaker 01: then that's clearly a direct challenge that would fall under the jurisdictional stripping bar in this case. [00:10:22] Speaker 01: But what the Supreme Court said in McNary that [00:10:25] Speaker 01: If the plaintiffs there were allowed to prevail, they would only be entitled to have their applications reconsidered in light of newly prescribed procedures. [00:10:33] Speaker 01: That's the type of collateral challenge. [00:10:35] Speaker 01: You could call it a predicate challenge. [00:10:37] Speaker 01: That's the type of challenge that we're talking about here today. [00:10:39] Speaker 01: If Mr. Castanera is successful, he only gets the opportunity to go through the agency's process with the correct procedures in place this time. [00:10:47] Speaker 01: And so because it is not outcome determinative, it is probably thought of as a collateral challenge, a predicate challenge, something that exists separable from the ultimate decision. [00:10:57] Speaker 07: Suppose you have the following kind of scenario. [00:10:59] Speaker 07: The secretary sets out three considerations that are going to factor in the decision of whether to grant this discretionary relief on the criterion of no risk. [00:11:10] Speaker 07: There's three considerations that are going to form the decision. [00:11:12] Speaker 07: There's a factual context in which those three considerations are applied. [00:11:16] Speaker 07: And the determination is made that the no risk calculus has been met. [00:11:20] Speaker 07: And then in a subsequent case, the secretary applies that and says, OK, we've had this reconsideration framework. [00:11:26] Speaker 07: I'm going to apply the same reconsiderations. [00:11:29] Speaker 07: But I'm going to reach the conclusion that actually the no risk threshold has not been satisfied. [00:11:33] Speaker 07: So I'm going to deny the discretionary relief. [00:11:35] Speaker 07: And then the challenger says, [00:11:37] Speaker 07: The person who's affected directly by that decision brings a challenge and says, look. [00:11:42] Speaker 07: Because those same three considerations, there's no rationale for reaching a different conclusion in this case. [00:11:46] Speaker 07: If you apply them in any faithful way, you've got to conclude that the same result obtains, because you haven't pointed out a relevant distinction from the last time. [00:11:55] Speaker 07: And then let's suppose further that they say, now I understand I can't get a direct result here that reverses. [00:11:59] Speaker 07: So what I want you to do is to order that the secretary consider it again, because it looks like these same three considerations, if applied faithfully, would reach [00:12:08] Speaker 07: which should reach the same result as last time, which is the grant of relief as opposed to the denial of it. [00:12:15] Speaker 07: Now, again, the challenger has said, I'm not asking for the result to be reversed. [00:12:20] Speaker 07: I know I can't do that. [00:12:21] Speaker 07: But I'm just asking for a new look, because I'm pretty sure that if you apply the same three considerations faithfully, you're going to reach the right result. [00:12:28] Speaker 07: Is that something that we would consider to be beyond the jurisdictional bar? [00:12:34] Speaker 01: I think that's a closer case to the one we have here, Your Honor. [00:12:37] Speaker 01: But I think if the challenge truly is a predicate challenge in the way I described, it's truly not going to change the ultimate decision on the merits, it's not attacking the ultimate decision on the merits, then I think under our conception of the word determined, this court would have jurisdiction to review it. [00:12:53] Speaker 01: But I think what you're pushing on with that hypothetical is the idea that the immigration bar is maybe going to try to exploit a loophole here and try to [00:13:02] Speaker 01: shove cases into the predicate garb when they're really actually substantive. [00:13:09] Speaker 01: I think holding for Mr. Castanera today doesn't necessarily mean that that type of challenge you can't hold the other way. [00:13:15] Speaker 01: But if this becomes an administrability issue and the immigration lawyers start exploiting these differences, there's a solution. [00:13:22] Speaker 01: Congress can change the statute. [00:13:25] Speaker 01: But I don't think we should alter the text of the statute as written to accommodate the possibility that the bar will abuse [00:13:31] Speaker 01: the proper meaning of the word determine. [00:13:34] Speaker 01: Now, I want to point out briefly that the Supreme Court has given Congress a roadmap of how to bar these purely legal, purely collateral types of questions. [00:13:44] Speaker 01: And they did so in McNary. [00:13:47] Speaker 01: The Supreme Court in McNary said, if you want to bar collateral challenges like this, take a look at the Veterans Judicial Review Act. [00:13:54] Speaker 01: That statute commits to the Secretary of the VA, quote, all questions of law and fact necessary under laws that impact the provision of benefits to veterans. [00:14:03] Speaker 01: And then in the same sentence reiterates that those decisions as to law and fact are unreviewable. [00:14:09] Speaker 01: That's the type of clear language the Supreme Court said would bar collateral legal challenges like the one we have before us. [00:14:16] Speaker 01: The word determined just isn't enough. [00:14:18] Speaker 01: Now McNary was decided in 1991. [00:14:21] Speaker 01: Congress didn't pass the Adam Walsh Act until over a decade later in 2006. [00:14:24] Speaker 01: It knew how to thoroughly insulate a decision from review based on that road map that the Supreme Court gave it. [00:14:31] Speaker 01: And instead, it used the word determined. [00:14:34] Speaker 01: I think it's important here to reflect that we're really debating over the difference between the noun and the verb form of this word. [00:14:41] Speaker 01: Indeed, the government's hinging a big jurisdictional consequence on that difference. [00:14:46] Speaker 01: If the government is right and Congress truly meant something so different by using the word determine instead of using the word determination, then uses can conceivably reject all applications filed on a Friday. [00:14:57] Speaker 01: They can reject all applications filed by people from Connecticut. [00:15:01] Speaker 01: And of course, those are the sorts of arbitrary decisions that this court would instantly strike down as an abuse of discretion should it have jurisdiction. [00:15:07] Speaker 01: But the government is saying that you don't. [00:15:10] Speaker 01: I don't think that's right. [00:15:11] Speaker 01: I think that's where it's prudent to consider the strong presumption in favor of review of administrative action. [00:15:16] Speaker 06: Is it undisputed that the Beyond a Reasonable Doubt standard is wrong? [00:15:20] Speaker 06: Is it undisputed? [00:15:22] Speaker 01: It is undisputed that the agency used the Beyond Any Reasonable Doubt standard in this case. [00:15:28] Speaker 06: I know. [00:15:28] Speaker 06: Is it undisputed that that was error? [00:15:32] Speaker 01: It is. [00:15:32] Speaker 01: The government does not contend that the decision, that the Administrative Appeals Office decision in matter of Chuaith is not binding. [00:15:40] Speaker 01: The decision is binding. [00:15:41] Speaker 01: And that decision, of course, says you must use a preponderance standard when evaluating. [00:15:47] Speaker 06: Your answer to me is the government hasn't disputed your assertion to that effect. [00:15:53] Speaker 06: No. [00:15:54] Speaker 06: It's not that everyone agrees that beyond a reasonable thou cannot be used. [00:16:01] Speaker 06: I'm just trying to figure out how strong you think that position is. [00:16:04] Speaker 01: The government does dispute that the matter of Chuaith opinion applies, but it does not dispute that it is binding. [00:16:11] Speaker 01: We, of course, believe that the matter of Chuaith opinion that requires the preponderance standard in this case does apply. [00:16:17] Speaker 01: So that's where the dispute is. [00:16:20] Speaker 01: Your Honors, I see that my time is out, but I do want to make sure we talk briefly about the second way that this court could reverse the district court in this case, and that is the scope of the Adam Walsh Act. [00:16:30] Speaker 01: Is that OK with Your Honors to go there now? [00:16:32] Speaker 07: We'll give you a minute just to summarize that argument. [00:16:33] Speaker 01: Thank you. [00:16:34] Speaker 07: Thank you. [00:16:35] Speaker 01: We think the Adam Walsh Act doesn't apply to Mr. Castaneda's conduct at all. [00:16:39] Speaker 01: And we talk about the two approaches that this court could take to that question in our briefing. [00:16:44] Speaker 01: But no matter which one this court applies, Mr. Castaneda's actions don't fall under the umbrella of the Adam Walsh Act at all. [00:16:52] Speaker 01: The Adam Walsh Act requires the petitioner to have been convicted of a specified offense against a minor. [00:16:56] Speaker 01: That is the hook of conviction from which all of these downstream consequences flow. [00:17:01] Speaker 01: Mr. Castaneda's actions don't fall under that definition because he did not commit a crime against a minor. [00:17:07] Speaker 01: Congress made it very clear. [00:17:08] Speaker 05: I understand how you can make that argument when the Georgia Court of Appeals decision in the opening paragraph lists the convictions and then in a footnote lists what statutes [00:17:27] Speaker 01: um were the subject of the convictions and then in one statute it says um offense against a minor in the statute so the statutes that mr castanero were convicted of can all be violated under mere belief that the person that that that that he was talking to was a minor and so that's the reason under both the categorical approach which we believe is the appropriate approach here [00:17:54] Speaker 01: or the circumstance-specific approach, that's the reason why his crimes don't fall under the umbrella of the Adam Walsh Act, because Congress has made it clear that minor is an identifiable legal term, someone under the age of 18 in the statute. [00:18:08] Speaker 01: And because Mr. Castanera didn't commit a crime against a minor, against someone under the age of 18, he should not have been subjected to the agency's no-risk determination at all. [00:18:19] Speaker 01: For those reasons, if there are no further questions, we respectfully ask this court to reverse and remand for further proceedings. [00:18:25] Speaker 05: Can we go back to the jurisdictional issue for a moment? [00:18:30] Speaker 05: And you say in your brief and you said this morning that determine and determination mean the same thing and that the definitions of determine really the prevailing definitions are the ones we should care about or about the ultimate decision. [00:18:48] Speaker 05: But there are lots of dictionaries, contemporary dictionaries, that use language like determined means to come to a decision by investigation, reasoning, or calculation. [00:19:07] Speaker 05: Why isn't the process of reasoning or calculation [00:19:14] Speaker 05: Why isn't that equivalent to standard review or your procedure or your methodology for reaching the ultimate decision? [00:19:29] Speaker 01: I think Your Honor points out that both I and the government can find definitions that support our view of the scope of the word determine. [00:19:37] Speaker 01: But I think what's a little more helpful here is looking at the way Congress uses this word throughout the immigration code. [00:19:45] Speaker 01: I'd point you to the asylum claim statute. [00:19:48] Speaker 01: Quote, if the attorney general determines that an alien has made a frivolous application for asylum, the alien shall be permanently ineligible for benefits effective as of the date of that determination. [00:19:59] Speaker 01: So in the same sentence, Congress directs the attorney general to determine something and then immediately refers to that as his determination. [00:20:08] Speaker 01: I think that's what makes it clear that when Congress is using this word in the immigration code, [00:20:13] Speaker 01: It's referring to finality. [00:20:14] Speaker 01: It is giving a command to reach an output. [00:20:17] Speaker 01: Frankly, I think the way Congress uses the word determine is basically the same legislative shorthand as make a determination. [00:20:24] Speaker 01: If you substituted make a determination here, the statute would mean the exact same thing. [00:20:31] Speaker 01: Your honors, if there are no further questions, we respectfully ask this court to reverse. [00:20:35] Speaker 07: Thank you. [00:20:36] Speaker 07: I'll give you a little time for rebuttal. [00:20:37] Speaker 01: Thank you. [00:20:40] Speaker 07: We're from the government now. [00:20:46] Speaker 03: Good morning. [00:20:46] Speaker 03: May it please the court? [00:20:48] Speaker 03: This court should affirm the district court's sound holding of the Adam Walsh Act and Section 1252A2B2 bar judicial review of both the process and the ultimate determination in a no-risk determination. [00:21:00] Speaker 03: As the district court stated, Congress's grant of discretionary authority could not be much clearer than the statute's language, which grants the secretary sole and unreviewable discretion. [00:21:11] Speaker 03: to determine whether a former I-130 petitioner convicted of a specified offense against a minor has established that he presents no risk to the intended beneficiary. [00:21:20] Speaker 03: The statutory language in the Adam Walsh Act and in section 1252 are clear. [00:21:25] Speaker 03: All circuits to consider the issues before this court today have reached the same conclusion as the district court below. [00:21:32] Speaker 03: And I think as a matter of context, it's helpful to remember that under the Adam Walsh Act, the default is that an I-130 cannot be granted [00:21:41] Speaker 03: or an individual convicted of a specified offense against a minor. [00:21:44] Speaker 03: So what this case is addressing is actually the exception to that statutory bar on granting. [00:21:50] Speaker 03: So whether he, Mr. Castanero falls within the exception. [00:21:54] Speaker 03: which would be an exercise of the secretary's grace to allow the petition to be approved. [00:22:00] Speaker 07: Isn't that always the case when we're talking about 1252 A to B? [00:22:08] Speaker 07: It's about denial of discretionary relief, right? [00:22:10] Speaker 07: Yes. [00:22:11] Speaker 07: So we're always talking about a situation in which the default may be pointing any other direction, but there's the denial of a discretionary form of relief. [00:22:17] Speaker 03: Yes, for 1252 A to B too, yes. [00:22:20] Speaker 03: And one. [00:22:20] Speaker 03: But in this case, we're looking at subsection two. [00:22:23] Speaker 03: And we think that the text of both the statutes is clear that the process, which would include the burden of proof that the secretary applies in making the determination, fall within that statutory bar against reviewing discretionary decisions. [00:22:37] Speaker 03: This is supported by the act's text, its grammar, and structure, and its history. [00:22:44] Speaker 03: Looking at the text, the difference between a noun and a verb is significant here. [00:22:50] Speaker 03: where the statute says determines that is the act of determining, which would include the entire decision making process. [00:22:57] Speaker 03: A determination would refer to a single decision or the ultimate outcome. [00:23:02] Speaker 03: And that is reflected in McNary. [00:23:05] Speaker 03: In McNary, the statute of issue, the statutory language was a determination respecting an application. [00:23:12] Speaker 03: That was the discretionary determination. [00:23:14] Speaker 03: So the court found that it could still review, because that challenged a pattern or practice of procedural new process violations. [00:23:21] Speaker 03: So that is how they got around the jurisdictional bar in McNary. [00:23:24] Speaker 03: But here, again, we have determines, and we have individual claims. [00:23:29] Speaker 03: So the bar does apply. [00:23:30] Speaker 07: So then the government acknowledges that if the statute said, makes a determination instead of determines, that the result would be different in this case? [00:23:38] Speaker 03: Yes. [00:23:38] Speaker 03: But because it says determines, it does fall within the statutory bar. [00:23:47] Speaker 03: And the grammar that's solid and reviewable is modifying discretion instead of a decision is also significant. [00:23:53] Speaker 03: And then additionally, the history that 1252 already barred the ultimate decision. [00:23:58] Speaker 03: So the Adam Walsh Act extended that to include the process as well. [00:24:03] Speaker 05: What's your best authority from either our court or the Supreme Court that the distinction between whether the word is used as a noun or a verb [00:24:15] Speaker 05: changes the meaning in this fashion or in a significant fashion. [00:24:23] Speaker 05: Where we are in force to tell that there's a significance for any purpose of statutory interpretation between the noun and the verb form of a word. [00:24:41] Speaker 03: I don't know that I have a case that explicitly says noun versus verb, but in the cases that are cited throughout this case, they are dealing with cases where it is a verb, or sorry, that it is a noun. [00:24:53] Speaker 03: So in McNary, that it is a determination respecting an application and then finding that that means final decision. [00:25:00] Speaker 03: So using a verb, it means something different in this case. [00:25:10] Speaker 03: you know, that and looking at the definition of determines that it is. [00:25:19] Speaker 03: Can, including things such as consideration, investigation, calculation that that does refer to something that goes beyond the scope of just that one ultimate determination. [00:25:31] Speaker 07: What's your response to the amicus is significant reliance on our decision and make the road? [00:25:38] Speaker 07: Because I noticed that the [00:25:40] Speaker 07: Amicus in their briefing relied on that decision quite a bit. [00:25:44] Speaker 07: And I don't think you even cited it in your brief. [00:25:46] Speaker 03: Yes. [00:25:46] Speaker 03: So I think the road is distinguishable for a couple of different reasons. [00:25:51] Speaker 03: So in that case, this court was dealing with a statute where the secretary was making a decision whether to subject an individual to expedited removal. [00:26:00] Speaker 03: And in that case, this court relied on a different statutory provision that explicitly provided for judicial review of that. [00:26:07] Speaker 03: So that was 1252. [00:26:09] Speaker 03: Subsection E. And again, in that statutory language, which was, such designation shall be in the sole and unreviewable discretion of the attorney general. [00:26:19] Speaker 03: Again, such designation refers to an ultimate decision. [00:26:24] Speaker 03: Here we have, again, this is an affirmative decision about whether to extend somebody a definition to put someone in expedited removal. [00:26:35] Speaker 03: an exercise of grace to allow an approval that otherwise Congress would have prohibited. [00:26:40] Speaker 03: There is no other statute that explicitly provides that this determination or that its underlying determination process should be reviewed. [00:26:49] Speaker 03: And the language that we're looking at, unless the secretary in the secretary's sole and unreviewable discretion determines that the citizen poses no risk, doesn't fall back onto the actual decision. [00:27:03] Speaker 03: but the determination making process itself. [00:27:06] Speaker 07: So when you emphasize such designation, is it the same noun verb argument? [00:27:09] Speaker 07: Yes. [00:27:10] Speaker 07: If it's a designates as opposed to designation, then it may have come out different. [00:27:15] Speaker 07: Make the road would do the work? [00:27:18] Speaker 03: Yes, that's possible. [00:27:21] Speaker 06: If we disagree with your suggestion that Cheweth or however you pronounce it doesn't apply, we think it does, you lose [00:27:38] Speaker 03: And yes, the child should not apply because well, no, if we disagree with that, you live. [00:27:43] Speaker 03: Yes. [00:27:44] Speaker 03: But for child with that with that we have and we have an agency, you know, deciding that this is going to be a binding precedent on the agency. [00:27:54] Speaker 03: An agency can't bind. [00:27:56] Speaker 03: Congress and override what Congress has said in a statute. [00:28:00] Speaker 03: And here the statute is saying that the discretion should be left to the secretary over the entire process. [00:28:06] Speaker 03: And the process would clearly include the burden to be applied in making that ultimate determination. [00:28:11] Speaker 07: So then isn't the answer to Judge Edwards' question no, then? [00:28:14] Speaker 07: Because I thought the premise of the question would be, if I'm not mistaken, wrong, is that whether Chavez binds the agency, not whether it binds Congress. [00:28:22] Speaker 07: I mean, of course an agency can't bind Congress. [00:28:24] Speaker 07: But if, in fact, it does bind the agency in this case, so that if the agency were faithfully applying the precedent, they would have applied a preponderance standard, [00:28:36] Speaker 03: My apologies if I understood. [00:28:37] Speaker 03: So I don't think it's not possible for Chawath to override the statute. [00:28:43] Speaker 03: So they can bind the agency and say that where there is no burden of proof provided, then it's possible. [00:28:50] Speaker 03: But since we have the statute that says that the process should be left to the secretary's discretion, then it falls outside of Chawath. [00:28:58] Speaker 07: In other words, the secretary, even though the secretary per the secretary's own departmental expectations and regulations is bound to follow the decision, if the secretary arbitrarily decides not to, then the statute would still immunize the secretary's determination from judicial review. [00:29:16] Speaker 03: Yes, because Congress has said that this is within the secretary's discretion and that that is going to be outside of the ability for the court story. [00:29:24] Speaker 07: I understand you have two arguments about the precedent. [00:29:27] Speaker 07: One is that the precedent doesn't apply because it doesn't cover this context. [00:29:32] Speaker 07: It covers different contexts. [00:29:33] Speaker 07: It applies a preponderance standard to a certain category of cases that doesn't encompass this one. [00:29:38] Speaker 07: And the other is that even if it did encompass this one, that still doesn't matter. [00:29:41] Speaker 07: We still don't have jurisdiction. [00:29:42] Speaker 07: I thought that's what Judge Edwards was getting to was the second point, that if we're on the part of your argument that says, if Shewaith actually does apply here, [00:29:57] Speaker 07: then we still wouldn't have jurisdiction under the government's view. [00:30:01] Speaker 07: Yes. [00:30:02] Speaker 06: Part of your argument then seems to be that the government has the authority to promulgate or adopt chairways and then apply it inconsistently as they see fit. [00:30:15] Speaker 06: And if they apply it this way, their response would be, well, the statute compelled. [00:30:21] Speaker 06: They apply it the other way. [00:30:23] Speaker 06: They'll say, well, we had the authority to [00:30:27] Speaker 06: Issue Che Waithe, and we're bound to follow our own authorities. [00:30:33] Speaker 06: How can you have it both ways? [00:30:34] Speaker 03: I don't think it's inconsistent to say if there is no burden supplied in the tax, then it needs to be a preponderance. [00:30:42] Speaker 03: But, of course, Congress can say otherwise. [00:30:45] Speaker 06: So if, you know, it's not inconsistent for agency to... But they adopted Che Waithe with the statute in place. [00:30:54] Speaker 06: They have the authority to do that? [00:30:58] Speaker 03: Yes. [00:31:00] Speaker 06: With the statute in place. [00:31:03] Speaker 03: Yes. [00:31:03] Speaker 06: I mean, the assumption I would have thought was that Jayway would be will be controlling on this question because we have the authority to do this and we're doing it and it should be controlling. [00:31:14] Speaker 06: And the general rule is unless the statute says something other than what it says, we can do this. [00:31:23] Speaker 06: But then the logical extension of that is they can do whatever they want in any given day. [00:31:29] Speaker 06: is flip-flopping, depending on what seems to work. [00:31:33] Speaker 03: Well, no. [00:31:34] Speaker 03: I mean, only if there's congressional authority that allows it. [00:31:36] Speaker 06: No, but I mean, not the congressional authority thing is there in the first place. [00:31:41] Speaker 06: The statute is there. [00:31:42] Speaker 06: It says what it says. [00:31:44] Speaker 06: But Chavith came despite its existence. [00:31:49] Speaker 03: I think because Chavith doesn't [00:31:51] Speaker 03: cover these decisions, the no risk determination under the Adam Walsh Act. [00:31:55] Speaker 03: So perhaps the agency could bind itself regarding other decisions at that point. [00:32:00] Speaker 06: Che Waithe isn't written with that limitation saying in this kind of a situation, it would be preponderance, right? [00:32:11] Speaker 06: A literal reading of Che Waithe supports the other side's position, right? [00:32:16] Speaker 06: It can't not support the other side's position unless I'm missing something. [00:32:21] Speaker 03: No, I would agree with that. [00:32:23] Speaker 03: I just think that again Che Waithe covers a different scenario than what we have here where Congress has written in that sole and unreviewable discretion to the Secretary. [00:32:35] Speaker 06: And where in Che Waithe does it hedge? [00:32:39] Speaker 03: I don't think Che Waithe does, but I don't think it has to because it would not. [00:32:43] Speaker 06: Well, then you're in a flip flop. [00:32:44] Speaker 06: That's what I'm not understanding. [00:32:46] Speaker 06: They're adopting Che Waithe. [00:32:49] Speaker 06: And they're not suggesting, well, this is only good in certain kinds of situations. [00:32:57] Speaker 06: Because it's not clear the statute goes so far as to give the agency authority to go into these procedural issues. [00:33:05] Speaker 06: And there's nothing in Chayworth that's limited. [00:33:08] Speaker 06: I don't know how you get there. [00:33:10] Speaker 03: I don't know that Chayworth would need to address every situation. [00:33:14] Speaker 03: I mean, it wouldn't have had to address any other discretion, [00:33:17] Speaker 03: No other jurisdictional bars and things like that, like 1252. [00:33:21] Speaker 03: I don't think Cheweth needed to necessarily explicitly say it will not apply to the AWA. [00:33:28] Speaker 03: No risk determinations because with that statute. [00:33:32] Speaker 07: Maybe I'm missing this, but I thought your argument. [00:33:35] Speaker 07: Let's suppose Cheweth comes down and Castaner is pending before the secretary at the same time. [00:33:40] Speaker 07: And let's suppose Cheweth just says, a preponderance of the evidence standard shall govern. [00:33:47] Speaker 07: including in the pending case of Castanera. [00:33:51] Speaker 07: And then Cheweth's issues, and then Castanera comes down, and the secretary applies a Beyond a Reasonable Doubt standard. [00:33:58] Speaker 07: Then is that reviewable? [00:34:01] Speaker 07: And the challenger says, wait a minute. [00:34:03] Speaker 07: Cheweth says, preponderance. [00:34:06] Speaker 07: It even went so far as to say that it governs in this case, yet the secretary still applied a Beyond a Reasonable Doubt standard and denied relief. [00:34:14] Speaker 07: We ought to get judicial review of that, and you, the court, should send that back. [00:34:19] Speaker 07: What would the government's position be? [00:34:21] Speaker 03: I still don't think it's reviewable, because when you go back to the text of the Adam Walsh Act, it says that it's in the secretary's discretion to decide what the burden will be. [00:34:32] Speaker 03: So regardless of what the agency says will be in other contexts, [00:34:40] Speaker 03: I suppose if the secretary decided we are going to provide to apply a preponderance standard and then proceeded to in this individual case and then proceeded to apply another one. [00:34:49] Speaker 03: I mean, that's still in the secretary. [00:34:51] Speaker 03: Even that. [00:34:52] Speaker 07: Why would that be different? [00:34:53] Speaker 07: I mean, from the governor's perspective, I don't understand. [00:34:56] Speaker 07: I mean, your position has to be, I think, that even if the secretary violates the secretary's own admonition about the standard, [00:35:04] Speaker 07: as between beyond a reasonable doubt and preponderance, that it's still unreviewable. [00:35:08] Speaker 07: There's no legal error there that can be subject to judicial review because the determination at the end of the day is that relief on this no risk act is going to be denied. [00:35:19] Speaker 07: That's off limits. [00:35:20] Speaker 07: And the burden of proof that's used to arrive at that is also off limits. [00:35:23] Speaker 07: And it doesn't matter how erroneous the selection of the burden [00:35:28] Speaker 07: proof is, it doesn't matter if it lies in the face of a precedent. [00:35:31] Speaker 07: It doesn't matter if it lies in the face of the burden that's set out in the very decision itself. [00:35:35] Speaker 07: It's still off limits. [00:35:36] Speaker 07: It can't be touched by a court reviewing it. [00:35:38] Speaker 07: I thought, is that not how the government reads the statute? [00:35:42] Speaker 03: Yes, it is. [00:35:43] Speaker 03: And I believe that that's how other courts have addressed the issue, have read it as well. [00:35:48] Speaker 03: In the Eighth Circuit in Bremer, the court noted that if courts begin to review USCIS's [00:35:53] Speaker 03: standards of proof and their adjudication procedures that could easily dictate how USCIS is going to exercise its discretion with the ultimate determination. [00:36:02] Speaker 03: And that is exactly what Congress sought to prohibit with 1252 and the Adam Walsh Act. [00:36:09] Speaker 07: So even if we thought that Chaiwath did govern this case, then the government's position would be that we lack jurisdiction. [00:36:22] Speaker 07: to correct that error? [00:36:23] Speaker 07: Yes. [00:36:31] Speaker 07: My colleagues have no questions. [00:36:33] Speaker 07: Thank you, Council. [00:36:34] Speaker 03: Thank you. [00:36:36] Speaker 07: Each will give you two minutes for a rebuttal. [00:36:44] Speaker 01: Thank you, Your Honors. [00:36:46] Speaker 01: I want to pick up where we left off. [00:36:48] Speaker 01: I think Judge Edwards picked up on the government's heads I win, tails you lose type of argument with Chouette, that even if Chouette applies and the agency is violating its own binding precedent, that this court does not have jurisdiction to just narrowly correct that error. [00:37:08] Speaker 01: The statute doesn't give agencies carte blanche to ignore their own binding decisions. [00:37:13] Speaker 01: The secretary chose to elevate Chuath to binding precedent. [00:37:17] Speaker 01: He made that decision. [00:37:19] Speaker 01: These are the consequences. [00:37:21] Speaker 01: The secretary gave this court a law to apply. [00:37:23] Speaker 01: This court can apply it and narrowly review the standard of review issue to bring the agency's actions in line with what is required by Chuath. [00:37:33] Speaker 05: Secretary can change his mind or her mind, right? [00:37:36] Speaker 01: That's right, Your Honor. [00:37:37] Speaker 01: We'd ask this court, or ask the district court, to instruct the secretary to either go through the proper procedures to overrule the binding opinion in Chouette or apply the preponderance standard, because Chouette clearly applies to administrative immigration benefits, like the Form I-130 process here. [00:37:54] Speaker 01: The last point I'd like to leave you with, Your Honors, I think it's telling that the government doesn't have an answer to your question, Judge Wilkins, about the noun-verb distinction. [00:38:04] Speaker 01: Because their position really boils down to this. [00:38:07] Speaker 01: You have jurisdiction over one form of the word. [00:38:09] Speaker 01: You do not have jurisdiction over the other form of the word. [00:38:13] Speaker 01: I just don't think that's enough considering [00:38:16] Speaker 01: the strong presumption in favor of reviewability of administrative action. [00:38:20] Speaker 01: Now, I don't want to say this case is cut and dry. [00:38:24] Speaker 01: But absent clear and convincing evidence that Congress meant to provide review preclusion over this particular type of challenge, this court has jurisdiction to review the agency's actions. [00:38:36] Speaker 01: And you should resolve your doubts in favor of reviewability. [00:38:40] Speaker 01: For those reasons, Your Honor, we respectfully ask this court to reverse. [00:38:44] Speaker 01: Thank you. [00:38:45] Speaker 07: Thank you. [00:38:45] Speaker 07: Thank you to everyone who presented argument this morning. [00:38:49] Speaker 07: Ms. [00:38:49] Speaker 07: Beach, you and your clinic were appointed by the court to present arguments supporting the appellant in this matter, and the court thanks you for your assistance.