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

[00:00:01] Speaker 01:
And on behalf of my colleagues, Judge Graber and Judge Bea, and myself, welcome to the Ninth Circuit.

[00:00:07] Speaker 01:
Judge Bea will be participating by video.

[00:00:11] Speaker 01:
Judge Bea, can you hear us?

[00:00:14] Speaker 00:
I can.

[00:00:14] Speaker 01:
Great.

[00:00:15] Speaker 01:
OK.

[00:00:16] Speaker 01:
So we have one case on the argument calendar today, but we have submitted a number of cases without argument.

[00:00:23] Speaker 01:
The cases we have submitted are Nahashan Najiru versus Bondi.

[00:00:29] Speaker 01:
Oros Moreno versus Bondi, United States versus Work, Cunda versus United Airlines, and Rodriguez Mendoza versus Bondi.

[00:00:42] Speaker 01:
All of those cases are submitted on the briefs.

[00:00:45] Speaker 01:
With that, as I said, we have one case on the argument calendar and that is Chavez versus Mayorkas.

[00:00:54] Speaker 01:
And Council, when you are ready, you may proceed.

[00:01:02] Speaker 01:
And each side has 15 minutes for argument.

[00:01:12] Speaker 04:
Good morning.

[00:01:13] Speaker 04:
May it please the court and counsel?

[00:01:16] Speaker 04:
My name is Niko Ratkowski, and I'm here on behalf of the appellant, Mr. Vera-Cheris.

[00:01:22] Speaker 04:
I would ask the court to reserve five minutes for rebuttal should it be necessary.

[00:01:29] Speaker 04:
The case before the court involves very voluminous and complicated factual issues, but the court isn't in a position to be able to address most of those factual issues because the administrative record was never submitted in this case, despite the appellant's vigorous opposition to that failure.

[00:01:53] Speaker 04:
And that's important because this is a case involving the administrative procedure act that is based and premised on the administrative record that should have been placed before the district court, specifically the administrative record that was before the Secretary of Homeland Security.

[00:02:13] Speaker 04:
The Supreme Court case of Overton Park made it abundantly clear that

[00:02:20] Speaker 04:
any sort of administrative procedure act review, especially at a motion to dismiss stage needs to be based on the full administrative record, or at least those portions of the administrative record cited by the parties.

[00:02:32] Speaker 01:
So council.

[00:02:33] Speaker 00:
As I read 5 USC 701A1, the APA does not apply where statutes preclude judicial review.

[00:02:45] Speaker 00:
Is that correct?

[00:02:47] Speaker 04:
That is absolutely correct, your honor, but we.

[00:02:50] Speaker 00:
It's when the statute would preclude judicial review.

[00:02:56] Speaker 04:
So our position, Your Honor, is that the INA does not preclude judicial review in this case.

[00:03:02] Speaker 03:
And so I'm happy to jump into that, if that would be a... I actually have a couple of questions about that.

[00:03:08] Speaker 03:
The district court, in the alternative to saying that there was no judicial review, said, assuming

[00:03:17] Speaker 03:
that constitutional claims can still be brought, there's no allegation of a colorable constitutional claim on the merits.

[00:03:28] Speaker 03:
And I know you don't agree with that proposition that there's not a colorable claim, but if we were to conclude that the district court had it right and there is not a colorable claim, wouldn't that dispose of this case?

[00:03:45] Speaker 04:
That's a great question, Your Honor, and it depends on whether or not the savings clause would apply of 1252A2D.

[00:03:53] Speaker 04:
If the savings clause applies, then that would address legal or constitutional issues.

[00:03:59] Speaker 00:
Right.

[00:03:59] Speaker 04:
To the extent that there is a abuse of discretion that is inherent in the decision.

[00:04:04] Speaker 04:
then you would not necessarily need a constitutional issue in order for the savings clause to apply.

[00:04:09] Speaker 03:
Because you think abuse of discretion is a legal claim and not a factual claim?

[00:04:15] Speaker 04:
I think that it's a mixed claim, Your Honor.

[00:04:17] Speaker 04:
There's facts that rise to the level of an abuse of discretion.

[00:04:20] Speaker 03:
The other question I have is whether I understand correctly that your client is in removal proceedings.

[00:04:29] Speaker 03:
that is correct your honor and it is there any is there any impediment in that proceeding to bringing factual constitutional or legal claims uh... essentially at whatever you would like to bring uh... there is and that is part of what makes this so important in this context there is no ability for him to

[00:04:54] Speaker 04:
have his waiver application decided by an immigration judge or by the Board of Immigration Appeals.

[00:05:10] Speaker 04:
No, it cannot be decided.

[00:05:12] Speaker 04:
So the D3A waiver can be decided by the Attorney General.

[00:05:16] Speaker 04:
But the D14 waiver is reserved by a statute specifically for the Secretary of Homeland Security.

[00:05:22] Speaker 04:
And the transitional provision that says Attorney General means Homeland Security Secretary does not go in the reverse direction.

[00:05:30] Speaker 01:
But if you raise that claim before the agency,

[00:05:36] Speaker 01:
and you lose, and you petition the Court of Appeals for review, you can try to raise a constitutional claim there, right?

[00:05:48] Speaker 04:
It's conceivable that it could be raised, but the channeling provisions is what gives me pause there, because the issue couldn't actually be decided by the immigration court or the board.

[00:05:58] Speaker 03:
So therefore, we can only review what the BIA does.

[00:06:03] Speaker 03:
So if the BIA can't do it, presumably we can't either.

[00:06:06] Speaker 03:
Exactly.

[00:06:07] Speaker 01:
But you could raise a claim that says,

[00:06:10] Speaker 01:
before the Court of Appeals on appealing any removal order, if there were a removal order, you could claim that the whole system is unconstitutional because it deprives you of the right to raise that claim.

[00:06:25] Speaker 01:
I mean you would run into possibly the problem the Supreme Court identified in Patel which is there may be, Congress may have designed a system where you just can't raise that anywhere but I mean that's not before us because you haven't been ordered removed and you haven't filed a petition to set that aside in the Court of Appeals, right?

[00:06:49] Speaker 04:
Correct.

[00:06:51] Speaker 04:
Yes, his BIA case is still pending.

[00:06:54] Speaker 04:
A motion to remand has been filed.

[00:06:56] Speaker 04:
I don't expect that we'll get a decision on that motion to remand anytime soon, but who knows.

[00:07:03] Speaker 04:
And so I think that the court's right to kind of look at the constitutional issues here because if there's no legal claim, assuming there is a no colorable constitutional or legal question, then I think that alternate basis does support affirming the district court.

[00:07:21] Speaker 04:
The APA doesn't matter if there's no jurisdiction.

[00:07:23] Speaker 01:
So you're familiar with the Vega case.

[00:07:26] Speaker 01:
I am.

[00:07:26] Speaker 01:
All right.

[00:07:27] Speaker 01:
So why isn't the legal issue here the same?

[00:07:32] Speaker 01:
I mean, the issue of whether there's jurisdiction, why isn't it the same here with the same mandated result as in Vega?

[00:07:43] Speaker 01:
What is, in your view, the difference that would allow us to reach a different result than the Vega Court?

[00:07:48] Speaker 04:
So that's a great question, and I think it is the same in part, but it's not the same in part.

[00:07:54] Speaker 04:
It is the same to the extent that both the Vega case and this case

[00:07:59] Speaker 04:
involve a request for a waiver under D3A.

[00:08:03] Speaker 04:
Vega, I think, controls with respect to that D3A waiver request.

[00:08:08] Speaker 04:
And Vega says that they have stolen unfettered discretion in that context.

[00:08:13] Speaker 04:
But what Vega also says is that it prevents review of solar unfettered discretion, but not of limitations or qualifications on discretion.

[00:08:24] Speaker 04:
And what we're submitting is that under the waiver request under D-14, that the limitation or qualifying language is in the national or public interest.

[00:08:36] Speaker 04:
And while I understand that the national interest has been construed to be so formless that it really has no inherent meaning and basically results in peer or unfettered discretion, this court has previously construed the public interest to be a revealable standard.

[00:08:52] Speaker 04:
And that goes back to the 1979 Keating v. FAA case of 610F2nd at 611, where this court found that in the public interest does allow for meaningful judicial review under the Administrative Procedure Act.

[00:09:07] Speaker 04:
So, so long as jurisdiction is not deprived by the INA, there is a standard to apply with the D14 case that takes us outside the realm of Vega.

[00:09:18] Speaker 00:
And why does the INA not

[00:09:21] Speaker 04:
So most of the jurisdiction stripping cases with the INA have dealt with 212A2BI, which deals with any case respecting a 1255 Adjustment of Status Petition or a Cancellation of Removal Petition.

[00:09:41] Speaker 04:
But the statutes at issue in this case don't fall into that first prong, and so that one just doesn't apply.

[00:09:48] Speaker 04:
In the second prong, though, we have any other actions specified to be discretionary, which the Supreme Court has interpreted in the Kukana case to require some sort of statutory specificity that discretion is inherent.

[00:10:02] Speaker 00:
That's not the way I read Judge Barrett's opinion in Patel.

[00:10:06] Speaker 00:
She talks about the discretionary power as being a matter of mercy or grace.

[00:10:12] Speaker 00:
That means that it can be held or withheld like a gift.

[00:10:16] Speaker 00:
Isn't that right?

[00:10:17] Speaker 04:
It is in the context of Patel, which was dealing with a different subdivision, but we can't collapse the two subdivisions upon each other or else we deprive them of independent meaning.

[00:10:29] Speaker 04:
For that first subdivision, it's talking about the grace inherent in an adjustment of status application or in one of those other listed discretionary applications.

[00:10:39] Speaker 04:
And so you have both the element of discretion inherent in the form of relief being requested

[00:10:44] Speaker 04:
and you have the specific statutory cross-reference saying there's no jurisdiction over these.

[00:10:49] Speaker 04:
And that combination is important, but you don't run into the same combination in the second subsection because there's no statutory cross-reference.

[00:10:58] Speaker 04:
It only pertains to things that are specified by statute to be discretionary.

[00:11:04] Speaker 00:
Is it your position that in the public interest

[00:11:08] Speaker 00:
limits the discretion of the agency more than just plain discretion.

[00:11:12] Speaker 04:
I think it does, Your Honor, because.

[00:11:15] Speaker 04:
So do you have any case saying again, I would refer to the Keating VFAA case of 610 F second 611, which was a Ninth Circuit case from 1979 and is cited in the briefs and was cited again with approval in the recent Perez Perez V Wolf case from 2023 in this court.

[00:11:36] Speaker 00:
And how is that?

[00:11:38] Speaker 00:
discretion limited in the public interest more than played merciful or grace discretion.

[00:11:45] Speaker 04:
So the way the Keating and Perez Perez cases kind of break that down is, you know, the secretary may have a lot of discretion to decide whether or not something's in the public interest or whether they consider it to be in the public interest.

[00:12:02] Speaker 04:
But if they are denying an application, not because of it not being in the public interest, but instead because of political disinclination, then that is not a legal decision, and it is subject to judicial review under this court's precedence.

[00:12:16] Speaker 00:
The public interest doesn't allow the executive to consider political

[00:12:21] Speaker 04:
It could, but not necessarily, to prevent judicial review in all cases.

[00:12:28] Speaker 04:
You know, there might be an issue where, under a summary judgment standard, maybe the political ramifications that are considered are sufficient to survive review.

[00:12:36] Speaker 04:
But if, let's say, the Secretary of Homeland Security decided to deny every single I-192 waiver application because they don't believe that Congress should have the authority to allow for waivers.

[00:12:49] Speaker 03:
Well, what if it's done for all women because the Secretary doesn't like women and that's the sole reason for denying waivers?

[00:12:59] Speaker 03:
Exactly.

[00:13:00] Speaker 03:
I mean, I think the political one is harder because then you get into what is in the national interest and the public interest.

[00:13:06] Speaker 03:
If there's an exercise that's clearly for some reason that is outside that or anyone who's taller than five feet nine or something truly arbitrary Yeah, I think the courts hit the nail on the head there it's This is why it's so important that there be judicial review when something cannot be channeled through the immigration courts and

[00:13:34] Speaker 04:
If this application could be channeled through the immigration courts up to this court through a petition for review, we wouldn't be here right now.

[00:13:40] Speaker 04:
This would be premature.

[00:13:42] Speaker 04:
But because the immigration courts cannot consider that, if there is no judicial review in this case, it allows USCIS to deny equal protection.

[00:13:50] Speaker 04:
It allows USCIS to deny due process because it puts them above the Constitution by denying any independent judicial review.

[00:13:57] Speaker 01:
Counsel, this is sort of neither here nor there, but the immigration court where your client's removal proceedings are pending, where is that located?

[00:14:08] Speaker 04:
I believe Oregon, but I only filed my appearance... But in a state in the Ninth Circuit?

[00:14:13] Speaker 01:
Yes.

[00:14:14] Speaker 01:
All right.

[00:14:15] Speaker 00:
Why can't the immigration courts, again, explain to me why can't the immigration courts consider such an arbitrary determination as put by Judge Graber?

[00:14:26] Speaker 04:
They don't have jurisdiction, Your Honor.

[00:14:28] Speaker 04:
The Immigration Nationality Act deprives them of jurisdiction because the waiver application at issue under 8 U.S.C.

[00:14:37] Speaker 04:
1182D14, Congress gave sole jurisdiction over those applications to the Secretary of Homeland Security.

[00:14:46] Speaker 04:
The immigration court cannot adjudicate those.

[00:14:50] Speaker 00:
Let me ask you one thing.

[00:14:52] Speaker 00:
Under 1182D3A,

[00:14:55] Speaker 00:
The attorney general has the power, the discretion to grant the waiver.

[00:15:03] Speaker 00:
Why wouldn't that waiver be just as good as a waiver granted by the DHS?

[00:15:08] Speaker 04:
There are different waivers with different standards, Your Honor.

[00:15:11] Speaker 04:
And so the D3A waiver an immigration judge can review.

[00:15:15] Speaker 04:
At least in various circuits they can, and I believe in the ninth they can, in the seventh they can.

[00:15:21] Speaker 04:
But we need an application of D3A for that kind of a waiver.

[00:15:24] Speaker 04:
Say that one more time, Your Honor.

[00:15:26] Speaker 00:
Have you applied to the AG for that kind of a waiver?

[00:15:29] Speaker 04:
There is a request for a remand to the immigration court, which would allow us to request that waiver.

[00:15:37] Speaker 04:
But the Board of Immigration Appeals could not grant that in the first instance.

[00:15:41] Speaker 04:
And I think more importantly, even if that kind of waiver is available, it doesn't affect

[00:15:47] Speaker 04:
the issue before the court, which is whether or not the D-14 waiver is subject to judicial review when it's been deemed to be denied in the exercise of discretion that relies on an abuse of discretion or unconstitutional decision-making.

[00:16:02] Speaker 04:
And I do see that my time's basically up, and so I want to respect the court's time.

[00:16:06] Speaker 04:
Unless the court has any other questions, I would cede the rest of my time.

[00:16:11] Speaker 01:
All right, and we'll give you two minutes for rebuttal.

[00:16:13] Speaker 04:
I appreciate that.

[00:16:15] Speaker 01:
All right, we'll hear from the government.

[00:16:25] Speaker 02:
Good morning, Your Honors.

[00:16:27] Speaker 02:
May it please the Court, Lauren Facette, on behalf of the United States Government.

[00:16:32] Speaker 02:
Here, the District Court correctly held that 8 U.S.C.

[00:16:34] Speaker 02:
1252A2B2 strips it of jurisdiction to review USCIS's discretionary denial of petitioners' request for a waiver of inadmissibility under 1182D14.

[00:16:48] Speaker 02:
And then because he did not receive the inadmissibility waiver, he was ineligible for a U visa and the district court properly dismissed that claim under B6 failure to state a claim.

[00:16:58] Speaker 03:
Counsel, do you agree with your friend on the other side that this issue cannot be raised in the removal proceeding itself or to this court if he has to bring an appeal or petition for review, sorry, from a BIA decision?

[00:17:17] Speaker 02:
I agree that 1252A2D does not apply in this case.

[00:17:22] Speaker 02:
It would only apply in a petition for review.

[00:17:25] Speaker 02:
And the D14 waiver cannot be granted by the board or the immigration judge.

[00:17:29] Speaker 02:
But none of that matters.

[00:17:31] Speaker 02:
The only issue in front of this court that this court needs to decide is whether the district court or this court had jurisdiction to review.

[00:17:38] Speaker 03:
Well, counsel, we decide what it is we need to decide.

[00:17:41] Speaker 03:
I want to be sure I understand your position.

[00:17:45] Speaker 03:
Is there any effective way for this petitioner to receive substantive review of the denial of the D-14 waiver through the removal proceeding or on review of the removal proceeding?

[00:18:06] Speaker 02:
Well, the waiver itself is a discretionary denial, so there wouldn't be any review.

[00:18:10] Speaker 03:
And I don't believe, as Petitioner said, that the... I'm asking for a procedural answer, not a substantive answer.

[00:18:17] Speaker 03:
I know you think that nobody can review this, but assume that there is a standard sufficient to permit constitutional review somewhere.

[00:18:28] Speaker 03:
Where is the somewhere?

[00:18:31] Speaker 02:
I would argue yes, if in a petition for review for Court of Appeals, if a petitioner had a constitutional claim or an issue, legal issue with some procedure that happened, that could in theory be raised.

[00:18:46] Speaker 03:
Including the denial of the D-14 waiver?

[00:18:50] Speaker 02:
I think it's unclear, Your Honor, because the D-14 waiver, if there was a colourable constitutional legal claim, perhaps he could raise it.

[00:18:56] Speaker 02:
I don't know what this court would do.

[00:18:58] Speaker 02:
But ultimately, because it's a discretionary denial, I would say that there would be no point.

[00:19:02] Speaker 03:
Well, either he can or he can't raise it in that.

[00:19:05] Speaker 03:
And if the government's view is he can raise it in the removal proceeding, and I assume that you will tell that to the BIA, that that's the government's position.

[00:19:20] Speaker 03:
So I'm looking for your official position on whether that is reviewable, a constitutional claim that a D-14 waiver was improperly denied.

[00:19:32] Speaker 03:
Can be raised in the removal proceeding.

[00:19:35] Speaker 02:
That's a yes or no My understanding would be no, but because that's not directly at issue I don't want to speak for what the Attorney General would do in that situation, but again no, I mean the d14 waiver can only be granted by USC is and it's discretionary and So I don't see why or how that would be able to be reviewed well the Supreme Court said in Patel it's possible that

[00:19:58] Speaker 01:
that Congress intended that some decisions aren't reviewable anywhere, but the Supreme Court said, that's not before us, so we don't have to decide it, and it's not before us, right?

[00:20:09] Speaker 02:
Yes, Your Honor.

[00:20:09] Speaker 01:
I mean, if the plaintiff were ordered removed, and if he filed a petition for review in the Ninth Circuit, and if he raised before that panel the constitutionality of a scheme, which theoretically wouldn't allow him to raise constitutional issues anywhere, that would be for that panel to decide, yes?

[00:20:31] Speaker 02:
That's correct, Your Honor.

[00:20:32] Speaker 02:
Yes.

[00:20:32] Speaker 02:
I mean, here, we're only discussing a discretionary waiver of an admissibility for a U visa.

[00:20:38] Speaker 02:
This has nothing to do with his removal proceedings or anything that he may raise in terms of another avenue for relief from removal.

[00:20:46] Speaker 02:
Here, although plaintiff raises a lot of tangential issues, the real crux is that the district court was correct that under 1252A2B2, the discretionary determination is not reviewable.

[00:21:00] Speaker 02:
And I will go through the statute at 1182-D14.

[00:21:05] Speaker 03:
I'd like you to respond to a question that I also asked your friend on the other side, and that is the district court made an alternative ruling that even assuming that a

[00:21:20] Speaker 03:
that there is judicial review, there's no colorable constitutional claim here.

[00:21:29] Speaker 03:
Do you agree that, as I understood counsel, that would be a complete answer to this case and we would never have to reach the statutory construction or other claims about jurisdiction?

[00:21:42] Speaker 03:
Do you agree with that?

[00:21:44] Speaker 02:
I agree that if the court were to go that route that that would foreclose the case.

[00:21:48] Speaker 02:
Yes, if there's no colorful constitutional claim There's nothing to review, but I would pivot back to the court should first address the jurisdictional issue

[00:21:56] Speaker 01:
The Supreme Court has suggested that jurisdiction always comes first, yes?

[00:22:01] Speaker 02:
Yes, Your Honor.

[00:22:02] Speaker 02:
And following along that, the indivisibility waiver at D-14 says USCIS, in its discretion, specifically says discretion, may waive a ground of indivisibility if it considers it to be in the public or national interest.

[00:22:16] Speaker 02:
and Supreme Court and case law from this circuit shows that that is clearly a discretionary statute.

[00:22:23] Speaker 02:
The word may has a usual presumption of discretion.

[00:22:26] Speaker 02:
It's a permissive word.

[00:22:27] Speaker 02:
This court found that in Vega.

[00:22:29] Speaker 02:
It clearly connotes discretion that was discussed in the Supreme Court's recent decision in Barfa, considers it to be

[00:22:36] Speaker 02:
leaves the criteria up to agency judgment.

[00:22:39] Speaker 02:
This is a broad grant of authority, and it exudes deference.

[00:22:42] Speaker 02:
It's similar to the word deems, where this court in Porcina discussed how that connotes that USCS determination involves a measure of judgment.

[00:22:51] Speaker 02:
Most importantly, there is no standard within the waiver provision that would provide a legal standard or standard of review for any court to assess.

[00:23:00] Speaker 03:
Why isn't the public interest a standard?

[00:23:04] Speaker 03:
Yes, Your Honor.

[00:23:05] Speaker 03:
It's something that we look at regularly, for example, in connection with things like the winter factors, whether something is in the interests of the public to go one way or another.

[00:23:15] Speaker 03:
It's something that courts do all the time.

[00:23:18] Speaker 02:
Correct.

[00:23:18] Speaker 02:
In this situation, the statute is written so that this should be a discretionary determination.

[00:23:24] Speaker 02:
That's not the question.

[00:23:25] Speaker 03:
The question is whether it's a workable standard for a court to apply.

[00:23:31] Speaker 02:
No, not in this case because the statute does not list any workable Factors and it very clearly connotes that this should be a discretionary determination So you don't think that the idea of the public interest is a standard that a court could apply?

[00:23:44] Speaker 02:
While it may be generally under this statute, it is written to show that the agency's judgment is the only source for a standard.

[00:23:51] Speaker 02:
There is no standard.

[00:23:53] Speaker 03:
That's circular counsel.

[00:23:56] Speaker 03:
It's either a workable standard or not.

[00:23:59] Speaker 03:
If it is a workable standard, you still may be right, but it isn't

[00:24:05] Speaker 03:
non-workable just because there's jurisdiction stripping.

[00:24:12] Speaker 02:
I understand, Your Honor, but in this situation, the government's decision is there is no workable standard, that this is a very broad sort of economic and national security consideration, and as this Court in Porcina discussed in terms of the national interest... Where do you see economic?

[00:24:27] Speaker 02:
When it would come to anything with the public or national interest, it's very vague, it's very broad, and there wouldn't be any standard for this court to assess.

[00:24:35] Speaker 02:
And the Supreme Court, as well as this court in Porcina, discussed that where there is no sort of path or condition or limitation or criteria laid out, then there is no governing standard for a court to review.

[00:24:47] Speaker 02:
In Porcina they looked at specifically the national interest and there found that that was also completely discretionary, had no workable standard, and thus review was barred by B2.

[00:25:00] Speaker 02:
And that same reasoning should be applied here.

[00:25:03] Speaker 02:
So both because there is no workable standard and everything in this statute is discretionary, just like this court found in Vega, this provision should be barred by 1232A2B2 just in the same way that the D3 waiver was also found to be barred by B2 because it said May and had the words indiscretion in USCIS discretion.

[00:25:27] Speaker 02:
And that's what we have here.

[00:25:28] Speaker 02:
So there is just nothing for,

[00:25:32] Speaker 02:
Plaintiff doesn't present any argument.

[00:25:34] Speaker 02:
This is not a discretionary determination.

[00:25:36] Speaker 02:
He raises other arguments that are, again, sort of tangential or avoid this issue by going to the APA.

[00:25:43] Speaker 02:
But as discussed, the APA has an exception where it doesn't apply if a separate statute precludes judicial review.

[00:25:50] Speaker 02:
And here, 1252A2B2 directly and clearly precludes review of a discretionary determination.

[00:25:57] Speaker 02:
And the D14 waiver, as I just discussed, is a discretionary determination for all those reasons.

[00:26:01] Speaker 02:
So the district court was correct in finding it didn't have jurisdiction to review this discretionary waiver of inadmissibility.

[00:26:09] Speaker 02:
With regard to whether 1252A2D would allow any constitutional claims, I know we discussed this already, but again, that wouldn't apply in this case.

[00:26:18] Speaker 02:
That would only be in a petition for review.

[00:26:20] Speaker 02:
And ultimately, plaintiff is just disagreeing with the discretionary determination, and he can't sort of cloak that in constitutional garb and change that reality.

[00:26:29] Speaker 02:
But even if there were, if the court could look at a constitutional challenge, he hasn't even stated a due process claim here because there is no due process claim to discretionary relief.

[00:26:41] Speaker 02:
And there's no claim to certain procedure for adjudicating a discretionary benefit.

[00:26:47] Speaker 00:
Is it your position, counsel, that if the alien here were able to show that the decision maker in the Department of Homeland Security was bribed

[00:26:59] Speaker 00:
with a sizable bribe by his enemy, the alien's enemy, that would not be a basis for a constitutional procedural due process claim?

[00:27:11] Speaker 02:
Well, those are certainly not the facts of this case.

[00:27:13] Speaker 02:
Taking the question, again, the denial is completely discretionary.

[00:27:17] Speaker 00:
So yes, as the Supreme Court... The decision maker admits to have been bribed

[00:27:24] Speaker 02:
I can't answer if there was an admission of bribe, but ultimately this denial is discretionary, and the Supreme Court has said that there are situations where a discretionary determination may be unreviewable, and that Congress may have intended to close that door in the way that they wrote the statute.

[00:27:40] Speaker 02:
I mean, 1252A2B2 is very clear that it bars review of discretionary determinations.

[00:27:46] Speaker 02:
So there's no way around that, unfortunately.

[00:27:48] Speaker 02:
for plaintiff.

[00:27:50] Speaker 02:
And because of that, the district court was correct in denying, dismissing the claims.

[00:27:55] Speaker 00:
Again, I'm going to ask a question that Judge Graber asked you.

[00:28:02] Speaker 00:
The position of the government is that his claim of bias cannot be adjudicated in the removal proceeding

[00:28:12] Speaker 02:
A challenge to the discretionary waiver could not be reviewed.

[00:28:15] Speaker 02:
So things that would stem from that also would not be reviewed in the immigration court.

[00:28:21] Speaker 02:
Yes, your honor.

[00:28:23] Speaker 00:
But again, Is it says that or is it just your reading of statutes?

[00:28:29] Speaker 02:
Well, yes, Your Honor.

[00:28:31] Speaker 02:
Starting with the Supreme Court's decision in Patel discussing that Congress may have foreclosed any review of discretionary relief entirely.

[00:28:40] Speaker 02:
And then in BUARFA, the Supreme Court again talked about the sort of broad grant of discretion and where there's no specific criteria that those decisions are also barred by B2.

[00:28:52] Speaker 02:
So ultimately both this court's jurisprudence as well as the Supreme Court support the district court's decision here.

[00:29:01] Speaker 02:
The district court was correct in finding that there was no jurisdiction to review the discretionary determination that he was inadmissible for the waiver.

[00:29:08] Speaker 02:
and then rightly dismissed the challenge to the U visa because as plaintiff concedes, he's ineligible, he didn't receive the waiver and thus would be ineligible for a U visa.

[00:29:19] Speaker 02:
So while of course this court can look at anything they want, the case is easily disposed of by determining that there is no jurisdiction to review a discretionary denial of a waiver and that really ends all of the issues here.

[00:29:34] Speaker 02:
If there are no further questions, rest on the briefs.

[00:29:38] Speaker 02:
Thank you.

[00:29:38] Speaker 01:
And as I said, we'll give you two minutes for rebuttal.

[00:29:57] Speaker 04:
So for starters, Congress knows how to write a statute that gives the Secretary sole discretion over something.

[00:30:07] Speaker 04:
It's done it repeatedly in the Immigration and Nationality Act.

[00:30:10] Speaker 04:
It says the Secretary has sole, unreviewable discretion over this.

[00:30:18] Speaker 04:
In D-14, that's not what Congress wrote.

[00:30:21] Speaker 04:
Congress wrote the Secretary may grant a waiver

[00:30:26] Speaker 04:
if they consider it to be in the national or public interest.

[00:30:29] Speaker 04:
That is not sole or unreviewable discretion.

[00:30:32] Speaker 04:
That is a qualification on the secretary's discretion.

[00:30:35] Speaker 04:
And to the extent we're talking about the public interest, it provides meaningful standards for review.

[00:30:41] Speaker 04:
Aside from the Keating case and the Perez-Perez case, there's also this court's recent case from 2024, Jajati v. U.S.

[00:30:49] Speaker 04:
Customs and Border Protection 102F4 1011 1019-220, which again cited Keating with approval and extended the public interest meaningful standard holding to a regulation concerning

[00:31:06] Speaker 04:
and conditioning customs and border patrols discretion on a low risk standard that was used to limit discretion.

[00:31:16] Speaker 04:
So this standard has been applied in the context of the immigration and nationality act recently by this court.

[00:31:22] Speaker 04:
It certainly is a meaningful standard.

[00:31:26] Speaker 04:
It provides enough of a standard to get out of the jurisdiction stripping provisions of the Administrative Procedure Act so long as the jurisdiction stripping provisions of the INA do not apply, which for the reasons noted in the brief and argued here today, we submit do not apply.

[00:31:42] Speaker 04:
Namely, the first subsection of 1252A2B,

[00:31:48] Speaker 04:
just does not apply because this statute is not cross-referenced in that section.

[00:31:52] Speaker 04:
And the second one does not apply because there are meaningful standards of review as to the limitations or qualifications of discretion, which operate as an exception to the INA's blanket jurisdiction stripping provisions.

[00:32:06] Speaker 01:
All right.

[00:32:06] Speaker 01:
Thank you, counsel.

[00:32:07] Speaker 01:
We thank counsel for their arguments.

[00:32:09] Speaker 01:
The case just argued is submitted, and with that we are adjourned for the day and for the week.