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

[00:00:01] Speaker 01:
May it please the Court.

[00:00:03] Speaker 01:
My name is Brad Bannas.

[00:00:04] Speaker 01:
I represent the appellants in this case.

[00:00:07] Speaker 01:
In 2016, USCIS provided and published an authoritative interpretation of the regulation at issue today, and it answered the question we're asking this Court to decide.

[00:00:18] Speaker 01:
USCIS interpreted the very regulation 8 CFR 214.14 D2 to say to allow for obligatory consideration of parole

[00:00:29] Speaker 01:
for principles in qualifying family members on the U visa waiting list.

[00:00:34] Speaker 01:
It said it mandates obligatory consideration of those on the waiting list, including derivative family members.

[00:00:41] Speaker 01:
It recognized the significant public benefit as the importance of supporting family reunification and alleviating the suffering of the crime victim.

[00:00:53] Speaker 01:
That's what we asked this court to do, is to adopt USCIS's own interpretation from 2016 that it has abandoned

[00:00:59] Speaker 01:
not acknowledged and kicked to the curb at the harm of my clients who have waited years in the United States without the ability to leave to attend funerals, births, see their family members.

[00:01:14] Speaker 01:
They are stranded in the United States despite being victims of crime, providing serious assistance to the law enforcement agencies, and being eligible

[00:01:24] Speaker 01:
For that reason, this court should reverse the lower court because my clients have standing.

[00:01:30] Speaker 01:
They are entitled to a waiting list decision, and in that waiting list decision, they're entitled to consideration at a minimum for parole documents.

[00:01:40] Speaker 02:
Let's start with that last point.

[00:01:42] Speaker 02:
It seems to me your argument's related to parole decisions.

[00:01:45] Speaker 02:
or parole relief hinges on the interpretation of this regulation 214.14d2.

[00:01:52] Speaker 02:
And the way I read that just on its face, it seems like an or.

[00:01:56] Speaker 02:
It seems like you're going to get this, or you're going to get that, or maybe you could get both.

[00:01:59] Speaker 02:
But it's a choice.

[00:02:01] Speaker 02:
And you want us to read it as parole is a mandatory thing that has to be offered.

[00:02:07] Speaker 02:
And I'm not sure I understand how you get there with the language.

[00:02:10] Speaker 01:
Yes, Your Honor.

[00:02:11] Speaker 01:
I think that or is one part of that sentence, but to holistically read that sentence, it has to be read alongside the rest of that phrase, which is while.

[00:02:20] Speaker 01:
So USCIS will grant deferred action or parole to U1 petitioners and qualifying family members while the U1 petitioners are on the waiting list.

[00:02:30] Speaker 01:
That indicates an ongoing obligation.

[00:02:32] Speaker 01:
That's not when they are placed on the waiting list.

[00:02:35] Speaker 01:
It is for the full duration of the time on the waiting list.

[00:02:38] Speaker 01:
Currently,

[00:02:39] Speaker 01:
If you sign up for a U visa right now, the waiting list is approximately 23 years long.

[00:02:45] Speaker 01:
My clients are likely to wait another 8 to 10 years to be on the waiting list.

[00:02:51] Speaker 01:
And so USCIS chose to use the word while to provide these benefits for the duration of the time on that waiting list.

[00:02:58] Speaker 02:
Even if we agreed with that, and that's a logical argument to make, even if we agree that there is this ongoing obligation to do this, how do we get around the fact that

[00:03:08] Speaker 02:
the ongoing obligation could just be we're doing deferred action.

[00:03:12] Speaker 01:
Your honor, I do think that even in the Supreme Court in 2024, the pulsifier decision had identified the, quote, chameleon like nature of the word or.

[00:03:21] Speaker 01:
And if we look at the next sentence, we go from just text to structure, your honor.

[00:03:25] Speaker 01:
The very next sentence in the very same regulation says USCIS in its discretion may authorize USCIS knew how to use and make things discretionary.

[00:03:36] Speaker 01:
It used that exact terminology in the very next sentence.

[00:03:40] Speaker 01:
And so it did not use that terminology in the sentence above where we see this or where at best it's ambiguous.

[00:03:47] Speaker 01:
And so I do think it's completely fair to interpret it in a chameleon-like way when we see it in the structure and the context that it would mean that USCIS can provide both.

[00:04:00] Speaker 01:
And I will note, USCIS provides both deferred action and parole to members of the waiting list who acquire their waiting list placement when they're outside of the country.

[00:04:13] Speaker 01:
We provided this in our opening brief.

[00:04:15] Speaker 01:
If you receive a waiting list decision when you're outside of the country and you sue them, you have to sue them because they have no process for this, they will award conditional parole.

[00:04:24] Speaker 01:
When the person gets that parole travel document placed into their passport,

[00:04:28] Speaker 01:
They hop on a common carrier.

[00:04:30] Speaker 01:
They arrive at the United States border.

[00:04:32] Speaker 01:
Customs and Border Protection makes the decision to parole them into the United States.

[00:04:37] Speaker 01:
And then they are granted deferred action by United States Citizenship and Immigration Services.

[00:04:43] Speaker 01:
So USCIS interprets it to mean and in practice.

[00:04:48] Speaker 02:
But I understood the declaration from USCIS to explain that the reason that that happens is so that the folks who are outside of the country who are potentially eligible for a U visa will be treated equivalently to the people who are inside the country who are also eligible.

[00:05:04] Speaker 02:
Like we get them here.

[00:05:05] Speaker 02:
so that they can be on equal footing, as opposed to having those two groups on unequal footing?

[00:05:10] Speaker 01:
I would suggest by offering that to people outside of the country, but not principle victims inside of the country.

[00:05:16] Speaker 01:
They are indeed exasperating disparate treatment, not ending it.

[00:05:21] Speaker 01:
And that's the issue here.

[00:05:23] Speaker 02:
My clients right now- Not that your argument is when they're here and they don't have parole, that means they can't come and go.

[00:05:28] Speaker 01:
That's correct, Your Honor.

[00:05:30] Speaker 02:
Well, that's going to be true for the folks who are somewhere else when this whole process starts.

[00:05:34] Speaker 02:
They get parole to get here, and then they're on the same footing, right?

[00:05:38] Speaker 02:
They don't have parole on an ongoing basis.

[00:05:40] Speaker 02:
They have deferred action just like everyone else.

[00:05:42] Speaker 01:
I would suggest that someone who's never been to the United States may qualify for a different type of visa to be able to travel the United States.

[00:05:49] Speaker 01:
Most folks on new visas, including my plaintiffs here, because of the wait time to get a waiting list decision, they have accrued more than a year of unlawful presence.

[00:06:00] Speaker 02:
Regardless of having a bona fide a determination that means there's a tenure bar if you have only a bona fide Determination that you're accruing unlawful presence point me to the point of law that says that because I my understanding is different than that there's no exception to the accrual of unlawful presence under the bona fide determination policy and There's not can you point me to a regulation or some sort of policy that says that?

[00:06:26] Speaker 02:
that the agency, if somebody is on that BFD status, is getting accrual of unlawful presence?

[00:06:33] Speaker 01:
I think we would have to look for something that says it stops accrual of unlawful presence, not the other way around, Your Honor.

[00:06:38] Speaker 01:
That's how the regulations work here.

[00:06:40] Speaker 01:
Under 214.14d3, it indicates you're accruing unlawful presence unless or until you get the waiting list decision.

[00:06:49] Speaker 01:
The moment you get the waiting list decision, you no longer accrue unlawful presence.

[00:06:53] Speaker 01:
And that's one of our big arguments for standing, Your Honor, that BFD does not make that same exception.

[00:07:00] Speaker 01:
There is nothing in the policy, the memo, that says once you get the BFD, you're no longer accruing unlawful presence.

[00:07:07] Speaker 01:
It says it in the regulation for the waiting list decision.

[00:07:10] Speaker 01:
It doesn't say it for the BFD.

[00:07:12] Speaker 01:
And so that is a significant benefit for my clients, because the accrual of unlawful presence can impact potential removal proceedings, potential inadmissibility grounds, all sorts of things, Your Honor.

[00:07:23] Speaker 03:
Let me just, I just want to make sure I understand everything you're saying.

[00:07:25] Speaker 03:
So if you're on the waiting list, okay, your argument is, and the way you read the reg is, that government must grant deferred action, the deferral part, and if the applicant wants travel out of the country, they must grant an advanced parole.

[00:07:52] Speaker 03:
I think... Is that what you're saying?

[00:07:54] Speaker 03:
And they must grant the work documents.

[00:07:59] Speaker 03:
They have no discretion.

[00:08:03] Speaker 03:
No discretion whatsoever.

[00:08:04] Speaker 01:
Is that your argument?

[00:08:07] Speaker 01:
I think that for a domestic U visa applicant, the easiest answer is that for employment authorization, it is discretionary.

[00:08:15] Speaker 01:
The regulation makes that discretionary.

[00:08:17] Speaker 01:
That's not an issue here.

[00:08:19] Speaker 01:
I would suggest that

[00:08:22] Speaker 01:
It might be in their discretion, but they are required to provide at least an opportunity for domestic waitlist holders to apply for parole under that regulation.

[00:08:36] Speaker 01:
That's what they said in 2016, that they have a mandatory obligation.

[00:08:41] Speaker 01:
To what?

[00:08:42] Speaker 01:
To consider?

[00:08:43] Speaker 01:
It mandates obligatory consideration of those on the waiting list for parole.

[00:08:48] Speaker 01:
So consideration.

[00:08:49] Speaker 01:
That's correct, Your Honor.

[00:08:51] Speaker 03:
So they have discretion to deny it once they consider it.

[00:08:54] Speaker 01:
The very next sentence says while mandating consideration the language also strongly supports a grant of parole.

[00:09:01] Speaker 01:
I do think the language will grant will make it very difficult for denials.

[00:09:05] Speaker 01:
However, this is the problem with this case.

[00:09:08] Speaker 01:
The agency has done nothing since 2007 to do anything with this

[00:09:13] Speaker 01:
Parole policy and so we don't have anything other than this report I'm quoting your honor to know what the agency's actual interpretation is miss O rises Declarations in this case are very fulsome, but they are fact declarations They are not authoritative interpretations of the agency of this regulation which is why this whole in my view this whole case hinges on that interpretation of

[00:09:38] Speaker 02:
of the regulation we started talking about.

[00:09:40] Speaker 02:
What does that mean in terms of the agency's obligation?

[00:09:43] Speaker 02:
It flows from there, right?

[00:09:45] Speaker 01:
I think so, Your Honor.

[00:09:46] Speaker 02:
If we disagree with your advanced interpretation, where does that leave your case?

[00:09:50] Speaker 01:
I do think there's two distinct issues here.

[00:09:54] Speaker 01:
One is whether members of the waiting list who are inside the United States are entitled to either parole or consideration of parole.

[00:10:01] Speaker 01:
And I think that would come down to interpreting the regulation, Your Honor.

[00:10:04] Speaker 01:
Then there's the second issue of whether my clients have standing and whether they're entitled to a decision under the wait list.

[00:10:10] Speaker 01:
We think that standing is very clear here.

[00:10:12] Speaker 01:
We think that the lower court simply adopted a factual conclusion to answer a legal question on the standing issue.

[00:10:20] Speaker 01:
And that the secondary question of that of whether UV's applicants are entitled to a wait list decision is a very easy question.

[00:10:28] Speaker 01:
The Fourth Circuit.

[00:10:29] Speaker 01:
and the Sixth Circuit have already said, yes, you are entitled to a weightless decision.

[00:10:34] Speaker 01:
The Sixth Circuit decision came out two weeks after the bona fide determination policy.

[00:10:39] Speaker 01:
They addressed it.

[00:10:40] Speaker 01:
The government tried to dismiss that case as moot two weeks before we had argument, and the Sixth Circuit kind of rejected that.

[00:10:46] Speaker 01:
And so I think if we have standing, this has to be at least remanded to

[00:10:52] Speaker 01:
to order the government to make waiting list decisions.

[00:10:56] Speaker 02:
And the standing question all boils down to this unlawful presence accrual?

[00:11:01] Speaker 01:
I don't think so, Your Honor.

[00:11:02] Speaker 01:
I think the standard for injury in fact is the right to be considered for a benefit.

[00:11:10] Speaker 01:
And I would suggest that they're being deprived of the right to be considered for a waiting list decision first.

[00:11:14] Speaker 02:
Well, except for if it comes down to if you have a BFD determination

[00:11:19] Speaker 02:
or a bona fide determination, or if you have a wait list determination, either one of those gets you the same thing, then the lost opportunity argument doesn't make sense to me because it's like a lost opportunity to what?

[00:11:32] Speaker 01:
Your Honor, they don't provide the same thing.

[00:11:34] Speaker 02:
The first is... That boils down to the unlawful presence difference?

[00:11:38] Speaker 01:
No, Your Honor.

[00:11:39] Speaker 01:
That's one element.

[00:11:41] Speaker 01:
We think that there is no protection for BFD holders for a cruel of unlawful presence.

[00:11:45] Speaker 01:
The second would be the actual weightless decision is different in kind, not just degree.

[00:11:51] Speaker 01:
It's an eligibility determination as well as a decision on any waiver application that's filed, Form I-192.

[00:11:58] Speaker 01:
You are deemed both eligible and admissible

[00:12:01] Speaker 01:
And when the agency finally gets to you 20 years from now, the only thing they're going to look at is whether you are continuing, continuously eligible, meaning you don't have any criminal history.

[00:12:09] Speaker 01:
That's a significant thing.

[00:12:11] Speaker 02:
Because if you're not, if you have to go now prove... That sounds like procedural injuries.

[00:12:16] Speaker 02:
And we have case law that talks about purely procedural injuries that sort of in the real world aren't

[00:12:21] Speaker 02:
making much difference, we have to give pause about whether that's actually an injury for standing purposes.

[00:12:25] Speaker 01:
I would also note that there is some sort of consideration for parole if you're a member of the waiting list decision, as you've noted, Your Honor, and you're outside of the country.

[00:12:33] Speaker 01:
They don't have this argument.

[00:12:34] Speaker 02:
All of your clients are in the country.

[00:12:35] Speaker 01:
They are.

[00:12:36] Speaker 02:
If they get a waiting list decision... So they can't advance this case based on what's going to happen to people who are not in the country.

[00:12:44] Speaker 01:
They are being deprived of the opportunity to get a wait list decision.

[00:12:47] Speaker 01:
leave the United States, get parole outside the United States, and return.

[00:12:51] Speaker 01:
I think that's only eligible for people inside the country.

[00:12:55] Speaker 01:
And then the last thing would be that this is a regulatory benefit over a pure policy memo.

[00:13:01] Speaker 01:
We've seen what happens in the Deferred Action for Childhood Arrivals context when a memo is providing these benefits versus a regulation.

[00:13:08] Speaker 01:
I would like to reserve the rest of my time, Your Honors.

[00:13:10] Speaker 02:
Thank you.

[00:13:31] Speaker 00:
Good morning, Your Honors, and may it please the court, Anissa Ahmed, on behalf of the federal government.

[00:13:37] Speaker 00:
Your Honors, despite the many ways that appellants frame and reframe their claims, what it all comes down to is whether or not they are entitled to anything more than they've already received, which is parole.

[00:13:47] Speaker 00:
Appellants have undoubtedly reside within the United States, have received deferred action and employment authorization documents.

[00:13:55] Speaker 00:
They are not entitled to parole.

[00:13:57] Speaker 00:
The court can dismiss this appeal on the basis that review of parole related decisions is precluded by 8 USC 1252 a 2b 2 or for the reasons that the district court dismisses the appeal Before I guess the unlawful presence issue and yes And what is in the law that tells us that that's not going to happen for the people in bona fide status sure so if some if you visa applicant is is granted deferred action and

[00:14:23] Speaker 00:
There is a policy memo that is dated May 6, 2009 that comprehensively discusses deferred action and that once a U visa applicant or any applicant is granted deferred action, their unlawful presence accrual pauses.

[00:14:37] Speaker 00:
Now it doesn't address that.

[00:14:38] Speaker 00:
Is that in the record?

[00:14:39] Speaker 00:
That is, I don't believe that that is in the record, but we can provide supplemental briefing on that matter if the court believes it's dispositive.

[00:14:45] Speaker 00:
And that policy memo is subject to change?

[00:14:47] Speaker 00:
Policy memos can be subject to change but again any potential change is purely speculative and speculative policy going to affect it went into effect May 6 2009 And there haven't been changes since then it's not right sure I think what's important when discussing parole and whether or not you visa applicants are

[00:15:08] Speaker 00:
that are domestic, that currently reside in the United States, which encompasses all appellants, are entitled to parole, I think it's important to discuss the purpose of the U visa program.

[00:15:20] Speaker 00:
And so briefly, the U visa program was created to assist law enforcement officers and officials to investigate and prosecute the underlying crimes that U visa applicants were victims of, which makes them eligible for the U visa at all.

[00:15:36] Speaker 00:
And so the purpose of allowing people to be paroled into the United States who are abroad is to bring witnesses and those with information into the United States so that law enforcement officers can work with them to prosecute and investigate these crimes.

[00:15:51] Speaker 00:
So it would be anathema to the program itself to allow

[00:15:54] Speaker 00:
U visa applicants to come and go from within and without the United States as they would please because of this law enforcement interest.

[00:16:03] Speaker 00:
And I think that it's important to remember that when deciding whether or not parole is entitled.

[00:16:07] Speaker 00:
But of course it is not under the plain text of 8 CFR 214.14 D2.

[00:16:12] Speaker 02:
Can I just ask a practical question?

[00:16:14] Speaker 02:
Sure.

[00:16:14] Speaker 02:
Why is it that we needed the BFD process or the bona fide process?

[00:16:17] Speaker 02:
Why can't we just get people wait list decisions?

[00:16:19] Speaker 00:
So, Congress has capped the U visa an annual, has created an annual cap of U visa issuances to 10,000 a year.

[00:16:27] Speaker 00:
The most recent data that I have is that there are currently over 400,000 applicants for both principal and derivatives pending for USCIS adjudication.

[00:16:38] Speaker 00:
And so, the executive branch USCIS in this case understanding that there are real humanitarian concerns,

[00:16:44] Speaker 00:
for what happens when individuals are waiting years and years, potentially decades, for adjudication, they created the bonafide determination program.

[00:16:52] Speaker 00:
First, they created the waitlist program, but that itself was overwhelmed.

[00:16:55] Speaker 00:
And then they've created this bonafide determination program so that interim benefits can be awarded to persons who otherwise have demonstrated that they at least have a bonafide application.

[00:17:06] Speaker 02:
What's the functional resource difference for the government for making the waitlist decision and the bonafide determination?

[00:17:12] Speaker 00:
So weightless determination is a full adjudication, or I'm sorry, it would be a full adjudication if there were no statutory cap.

[00:17:20] Speaker 00:
But the bona fide determination analysis is not a superficial analysis.

[00:17:24] Speaker 00:
It still is an individualized case by case analysis.

[00:17:27] Speaker 00:
So under 8 CFR 214.14C2, there needs to be a law enforcement officer certification that lays out that the petitioner is actually a victim of a qualifying crime,

[00:17:41] Speaker 00:
that the law enforcement officer is investigating or prosecuting and that the applicant has relevant information and has been helpful for the investigation and prosecution.

[00:17:51] Speaker 02:
I'm not sure this is getting at the point I'm trying to get to.

[00:17:54] Speaker 02:
And the point I'm trying to get to may not matter to the analysis, but I'm just trying to figure out just functionally

[00:17:59] Speaker 02:
why the government thought it was necessary to have this more streamlined, like why couldn't you just make the waitlist determinations?

[00:18:05] Speaker 02:
I understand that only 10,000 people are going to get through a year, but is there a cap on how long the waitlist can be?

[00:18:11] Speaker 02:
There is no cap on how long the waitlist can be.

[00:18:13] Speaker 02:
Okay, so then why don't we just invest in this one process instead of having two?

[00:18:18] Speaker 00:
Because there is a difference in the analyses, and because a waitlist determination can also include

[00:18:24] Speaker 00:
the issuance of a request for evidence on RFE.

[00:18:27] Speaker 00:
So during the analysis, if an adjudicator finds that an application is lacking for whatever it is, they're missing signatures on pages, they're missing a biometrics, what have you, they will review the application and then they'll issue a request for evidence on RFE, asking the applicant to cure whatever deficiencies exist in the application.

[00:18:48] Speaker 00:
And then the applicant, of course, has the opportunity to provide that information to cure their deficiencies.

[00:18:54] Speaker 00:
And then there's a more fulsome review of the statement from the applicant, from the law enforcement certification, the biometrics capture, the review of the inadmissibility waiver, if there is one, and a determination about whether or not the applicant is admissible.

[00:19:11] Speaker 02:
So it is more fulsome, but that's not- So is the reason that we have the two processes just simply a matter of efficiency?

[00:19:17] Speaker 02:
That is correct.

[00:19:18] Speaker 02:
There's not some sort of reason why the government would want to make its more fulsome decision closer to time?

[00:19:23] Speaker 00:
There's not because regardless of whether or not somebody has a wait list determination, when a visa becomes available, they go through a full cap evaluation again to make sure that whether or not they're still admissible to the United States or they need a waiver or to make sure that they're just still eligible.

[00:19:41] Speaker 00:
So there is still another review that occurs.

[00:19:44] Speaker 00:
when a visa number becomes available for an applicant, regardless of whether or not they have a bonafide determination or a waitlist determination.

[00:19:52] Speaker 02:
So I mean, it was the government's choice to make these two PES.

[00:19:55] Speaker 02:
And the government thinks there's a difference.

[00:19:58] Speaker 02:
So why shouldn't we conclude that there's a difference between these two things in terms of what people are getting for purposes of establishing standing?

[00:20:06] Speaker 00:
So for this case, which is what we have to, the facts that

[00:20:11] Speaker 00:
The facts of the appellants of this case, there is no actual difference.

[00:20:14] Speaker 00:
So if you were in the United States and you receive a bona fide, well you can only receive a bona fide determination if you're in the United States because the benefits are deferred action and then the discretionary grant of employment authorization documents.

[00:20:25] Speaker 00:
And the same thing is for wait list determinations too within the United States.

[00:20:29] Speaker 00:
Going back again to the purpose of the program which is to allow individuals who are assisting law enforcement agencies

[00:20:36] Speaker 00:
to in the investigation and prosecution of crime to stay here.

[00:20:38] Speaker 00:
So they received deferred action and then, of course, a discretionary grant of employment authorization documents.

[00:20:43] Speaker 00:
So these appellants are in no separate position from each other.

[00:20:48] Speaker 00:
There is no difference in the benefits that they have received.

[00:20:51] Speaker 02:
Well, your friends suggest that they are because one of them has an eligibility assessment and one of them doesn't.

[00:20:58] Speaker 02:
Why isn't that a difference?

[00:20:59] Speaker 00:
The eligibility, so there is no difference with respect to obtaining parole, which is what appellants are actually seeking.

[00:21:05] Speaker 00:
The different, there is no leg up that a bonafide, or that a waitlist determiny has when it comes to asking for, asking for parole.

[00:21:14] Speaker 00:
Both, all appellants here, both the persons that have received bonafide determinations and waitlist determinations can seek parole by way of a form I-131 and ask for parole on humanitarian grounds.

[00:21:26] Speaker 00:
And that is, but that determination on parole, whether it's from USCIS issuing an advanced parole document,

[00:21:34] Speaker 00:
Customs and Border Protection that who grants parole there.

[00:21:37] Speaker 00:
It's an independent.

[00:21:38] Speaker 00:
It's an independent assessment about whether or not somebody is Eligible for parole so the waitlist termination gives no leg up and there is no substantive difference here It's just so I make sure I've got that point that if you're on the waitlist and

[00:22:01] Speaker 03:
You get parole for some reason or other, you're out of the country and you come in.

[00:22:07] Speaker 03:
You come in with a parole authorization, is that right?

[00:22:12] Speaker 03:
Can customs, at the border, could they reject that and say we're not going to let you in?

[00:22:19] Speaker 00:
They could reject that.

[00:22:20] Speaker 00:
So an advanced parole document is essentially like a parole pre-clearance that USCIS issues saying that they essentially recommend this person.

[00:22:29] Speaker 00:
to be paroled in, but any parole decision, any at all... Has to be made at the border.

[00:22:33] Speaker 00:
Has to be made by the border and is within Customs and Border Protection's discretion.

[00:22:38] Speaker 00:
So in that case, any parole that USCIS can offer is always conditional because the ultimate decision is up to CBP.

[00:22:46] Speaker 03:
Is there any data on how that... I'm not aware... If they, you know, the percent that Customs and Border Patrol rejects who have an advanced authorization?

[00:22:59] Speaker 00:
I am not aware of any data.

[00:23:01] Speaker 00:
However, if the court finds it dispositive, the government will provide some.

[00:23:04] Speaker 03:
It just seems like if there was a recommendation from, what is it, UCIS or whatever it is.

[00:23:10] Speaker 00:
Right.

[00:23:11] Speaker 00:
I don't have that data.

[00:23:12] Speaker 03:
That the border patrol would accept it?

[00:23:17] Speaker 00:
I don't have data about whether or not they would, but I do know that Customs and Border Protection, you know, does.

[00:23:22] Speaker 03:
Let me ask you one other question.

[00:23:23] Speaker 03:
What happens with this?

[00:23:26] Speaker 03:
How many people are on the wait list today?

[00:23:34] Speaker 00:
Most recent data I have, I believe, shows that it's 418,000 people.

[00:23:44] Speaker 00:
Yes, I'm sorry.

[00:23:45] Speaker 00:
I'm printing principles and derivative visas.

[00:23:47] Speaker 00:
It's 418,815.

[00:23:48] Speaker 03:
And how many people have bona fide determinations?

[00:23:53] Speaker 00:
So since 2021, USAIS has granted over 350,000 bona fide determinations, have conducted those determinations.

[00:24:03] Speaker 03:
Are any people being placed on the wait list today?

[00:24:07] Speaker 00:
There are people that are placed on the wait list.

[00:24:09] Speaker 00:
So the way that the process works is an applicant will submit their application process to USCIS, I'm sorry, their application package to USCIS.

[00:24:17] Speaker 00:
And USCIS will first, if the applicant is within the United States, will then first look to see

[00:24:24] Speaker 00:
They qualify for a bona fide determination because it is quicker to then you know confer these benefits onto these onto these applicants And if they find that they are missing any sort of documentation For instance if they're missing signature pages if they're missing biometrics, then they will do a waitlist determination Additionally if persons are abroad they will do a waitlist determination and there are instances where?

[00:24:46] Speaker 00:
If a person is in immigration proceedings, ICE can request a waitlist determination from USAIS to facilitate the immigration proceedings.

[00:24:57] Speaker 00:
So there are people who are.

[00:24:58] Speaker 03:
So it sounds like if you're a little bit, how would we say, a little bit careless in your preparation of your application?

[00:25:05] Speaker 03:
You might end up on the waitlist rather than on the

[00:25:08] Speaker 03:
Rather than be determined to have a bonafidee application.

[00:25:11] Speaker 00:
Is that what you're saying?

[00:25:13] Speaker 00:
I wouldn't say careless.

[00:25:14] Speaker 00:
I'd just say if the application wasn't fully, you know, but that's correct.

[00:25:18] Speaker 00:
But then, but then they also then have the opportunity to cure those defects.

[00:25:21] Speaker 00:
So it's not just that you go into a waitlist.

[00:25:23] Speaker 03:
Why don't you just put them back on as a bonafidee applicant?

[00:25:27] Speaker 00:
Because the benefits are the same.

[00:25:29] Speaker 00:
So if someone goes through the waitlist determination,

[00:25:32] Speaker 00:
then they, you know, they just go through the, you know, a more fulsome adjudication, but then the benefits, if they're within the United States, is still deferred action and the potential for... It's all very strange.

[00:25:42] Speaker 02:
Does somebody jump from being on the bona fide group to in queue for getting the visa?

[00:25:49] Speaker 02:
You have to go through the waiting list to get to the visa?

[00:25:51] Speaker 00:
You don't.

[00:25:51] Speaker 00:
They're separate paths.

[00:25:52] Speaker 00:
They are just in tandem.

[00:25:53] Speaker 00:
Which is why the interim benefits are the same.

[00:25:55] Speaker 00:
We're providing the same benefits to people who are on the wait list.

[00:25:57] Speaker 02:
So all of the people on the wait list and all of the people in the bona fide pool are ranked based on the date that they submitted their application, just integrated, based on date.

[00:26:06] Speaker 03:
Yes, that's correct.

[00:26:09] Speaker 03:
So when you said that there was, how many months did you say the wait list is now?

[00:26:13] Speaker 03:
I think the wait... For the visa, what year are they at now?

[00:26:19] Speaker 00:
That I'm not sure.

[00:26:20] Speaker 00:
I can provide that information in supplemental briefing if needed.

[00:26:23] Speaker 00:
I don't have the exact what year date that they're at right now.

[00:26:29] Speaker 03:
So if you're a recent bona fide, somebody who's been an applicant who's been determined to have a bona fide application, I gather today you would be, like counsel said here,

[00:26:44] Speaker 00:
Ears out for a full merit determination.

[00:26:47] Speaker 00:
That's correct Which is exactly why USCIS has created the bona fide determination process to provide these interim benefits So that people have you know lower priority for it action and employment authorization coming authorization yes, which allows if they if they Asked for an advanced parole determination That would be no

[00:27:07] Speaker 00:
That's not necessarily true.

[00:27:08] Speaker 00:
It just means any applicant, any non-citizen can apply for advanced parole.

[00:27:14] Speaker 00:
It's just that whether or not they receive it is based on whether or not there's an urgent humanitarian need.

[00:27:20] Speaker 00:
But that has nothing to do with whether or not they're on the wait list or whether or not they have a bona fide determination.

[00:27:26] Speaker 00:
That is an independent determination by USCIS and then by Customs and Border Protection.

[00:27:31] Speaker 00:
Again, there is no leg up that anybody receives if they have a bona fide determination or they're on the wait list.

[00:27:38] Speaker 00:
It is a completely separate analysis.

[00:27:40] Speaker 03:
If somebody were to get an advance authorization to travel abroad, is it limited in time?

[00:27:48] Speaker 00:
Often I believe it's limited in time just for the to satisfy the need of the of leaving somebody wants to go to a memorial service or something Yeah, someone seeking in days.

[00:27:57] Speaker 00:
Yeah, somebody seeking You know medical treatment or going to end-of-life care for for a loved one.

[00:28:02] Speaker 00:
It would be a cap It's not like a passport We know which allows a non-citizen to enter and exit the country without any time bounds Okay

[00:28:15] Speaker 00:
Yes, if I may briefly conclude for the reasons discussed today and for the reasons discussed in the briefing we asked that this court either find that the that the district court lacked jurisdiction under 8 u.s.c.

[00:28:28] Speaker 00:
1252 hdb to or affirm the dismissal.

[00:28:30] Speaker 00:
Thank you.

[00:28:31] Speaker 02:
Thank you I'm gonna jump right in I have a couple of technical questions and then I'll let you do it so claim three is

[00:28:44] Speaker 02:
Have you dropped that one, or is that still here?

[00:28:46] Speaker 01:
Still here.

[00:28:47] Speaker 02:
Where in the briefing have you referenced?

[00:28:50] Speaker 02:
I don't see it anywhere, so it seems like it's been dropped.

[00:28:53] Speaker 01:
I would suggest that those are waitlist decision holders, and they were deprived of consideration of any parole when they received the waitlist decision.

[00:29:00] Speaker 01:
And so our argument that members of the waitlist are required to be considered for parole argues for them too.

[00:29:07] Speaker 02:
Can you point me to somewhere in the briefing where you argue a claim three?

[00:29:10] Speaker 01:
I can't, Your Honor.

[00:29:12] Speaker ?:
OK.

[00:29:12] Speaker 02:
Claims one and two, are those brought under 7061?

[00:29:15] Speaker 02:
APA 7061?

[00:29:19] Speaker 01:
Claim one is an unlawful withholding claim because the agency is refusing to issue weightless decisions illegally in violation of their regulation.

[00:29:29] Speaker 01:
And claim two is that they will not receive parole decisions.

[00:29:33] Speaker 02:
So they're both unlawful withholding of decisions.

[00:29:35] Speaker 01:
That's correct.

[00:29:36] Speaker 02:
Two different decisions.

[00:29:36] Speaker 02:
So that's why I'm asking.

[00:29:37] Speaker 02:
Are they both brought under 7061?

[00:29:38] Speaker 02:
Yes, they are.

[00:29:39] Speaker 02:
OK.

[00:29:40] Speaker 02:
Now you can do what you need to do.

[00:29:42] Speaker 01:
I would point to five cases, Bruno from Colorado, Arenales from Florida, Jesus from Vermont, Meir from Nebraska, Kotari from Chicago, that all find plaintiffs identical to these have standing.

[00:29:53] Speaker 01:
The lower court's decision here is a vast outlier, and those cases are continuing to go forward.

[00:29:59] Speaker 01:
Part of those cases that we've gotten a record now for the decision to refuse to do weightless decisions.

[00:30:03] Speaker 01:
There's one policy memo.

[00:30:05] Speaker 01:
And it's based on complete fabrications.

[00:30:08] Speaker 01:
They claim the only reason they've done the bona fide determination is they were losing lawsuits, and it takes too long.

[00:30:14] Speaker 01:
And so they've replaced the weightless decision with the bona fide process that, by the way, was put into Congress in 2008.

[00:30:20] Speaker 01:
It took them 15 years.

[00:30:22] Speaker 01:
That's the only reason, Your Honor.

[00:30:23] Speaker 01:
They don't address any other of these things we're talking about.

[00:30:27] Speaker 02:
But as a practical matter, it seems like people in the shoes of your clients would be happy that there's a bona fide process, right, because they can get

[00:30:34] Speaker 02:
they can get a decision about at least a preliminary eligibility decision earlier and therefore the work authorization and stuff can kick in quicker.

[00:30:43] Speaker 01:
Yes and no.

[00:30:44] Speaker 01:
It's not an eligibility determination.

[00:30:46] Speaker 01:
It is a completeness determination.

[00:30:47] Speaker 01:
Did they sign all the pieces of paper?

[00:30:50] Speaker 02:
But it comes with the ability to get some benefits that they were going to have to wait for until they got a waitlist determination, which was going to take longer.

[00:30:58] Speaker 01:
And one key benefit they don't get is the consideration for parole.

[00:31:01] Speaker 01:
When my colleague says a waitlist decision gives them no leg up on parole, that completely eviscerates and eliminates that part of the regulation that we went back to.

[00:31:11] Speaker 01:
It has to give them a leg up or it erases that provision from the regulation, which USCIS

[00:31:16] Speaker 01:
said in 2016 in an authoritative publication mandates consideration.

[00:31:21] Speaker 01:
You notice we didn't hear anything about USCIS's prior position on this at all.

[00:31:26] Speaker 01:
They have changed 180 without any analysis whatsoever.

[00:31:30] Speaker 01:
And the result, the practical result, is my clients cannot see their parents who are dying.

[00:31:35] Speaker 01:
They cannot see their children.

[00:31:37] Speaker 03:
So you wanna get rid of BFD, put all the BFD people on the waiting list?

[00:31:41] Speaker 01:
I don't, your honor.

[00:31:42] Speaker 01:
What I want is the elimination of the BFD as a substitution of the waitlist decision.

[00:31:50] Speaker 01:
That is, it should be a one, two, three step process.

[00:31:54] Speaker 01:
A BFD within 60 days, which is what Congress said, a waitlist decision a year, 18 months after that, and then they can wait the 20 plus years

[00:32:05] Speaker 01:
to get their actual wait list decision.

[00:32:07] Speaker 01:
And at the 20 plus years mark, they're not going to be asked, go back and find the officer who signed your supplement B because he signed it on the wrong line.

[00:32:15] Speaker 01:
That's impossible in 20 years.

[00:32:17] Speaker 01:
And that's the difference between an eligibility determination and a completeness determination.

[00:32:22] Speaker 01:
And I will just round it out with this, that my colleague brought up the purpose of the U visa program.

[00:32:30] Speaker 01:
And what I would suggest is the purpose of the U visa program is give and take.

[00:32:33] Speaker 01:
It's carrot and stick.

[00:32:35] Speaker 01:
It benefits the police, but it also provides stability, family reunification, and benefits for the people on the wait list, because these folks are victims of crime.

[00:32:47] Speaker 01:
They've suffered trauma, and preventing them from going to see their parents for 25 plus years only increases that trauma, and that cannot be what Congress intended.

[00:32:56] Speaker 01:
Thank you, Honors.

[00:32:57] Speaker 02:
Thank you, Counsel.

[00:32:58] Speaker 02:
We appreciate the helpful arguments.

[00:33:00] Speaker 02:
The matter of you visa appellants versus the director of USCIS is submitted for decision and we are adjourned for the week.