[00:00:00] Speaker 04:
The next case this morning is Calvary Albuquerque versus Blinken, number 242066.

[00:00:12] Speaker 04:
Council, you may proceed.

[00:00:14] Speaker 02:
Thank you, Your Honor.

[00:00:14] Speaker 02:
It may please the Court.

[00:00:16] Speaker 02:
My name is Olsie Vrapi and I represent Calvary of Albuquerque.

[00:00:20] Speaker 02:
And with me today is Julia Jago joining me at Council table.

[00:00:28] Speaker 02:
This case is about one thing, calling explicitly permitted religious activities unauthorized employment.

[00:00:38] Speaker 02:
There are two main issues in the case, whether Calvary made a prima facie RFRA claim, a Religious Freedom Restoration Act claim, in showing that this denial is substantially burdening both its choice of minister right and also compensating said ministers.

[00:00:54] Speaker 02:
And number two, whether RFRA

[00:00:57] Speaker 02:
pierces the veil of the doctrine of constant non-reviewability.

[00:01:01] Speaker 02:
On the first issue, the district.

[00:01:04] Speaker 04:
Don't you have to get past the second issue before we get to the first issue?

[00:01:11] Speaker 02:
We can address that, Your Honor.

[00:01:12] Speaker 02:
That's not a problem.

[00:01:13] Speaker 02:
We can jump straight to the second issue.

[00:01:16] Speaker 02:
I addressed that first because that would be sort of a threshold claim, because if there was no refer claim, then there would not be exceptions to the doctrine.

[00:01:22] Speaker 02:
But to answer the court's question,

[00:01:27] Speaker 02:
RFRA was meant to be a very broad and very intrusive statute.

[00:01:32] Speaker 02:
On the other hand, the doctrine of consular non-reviewability is a judicially graded doctrine where the courts choose to stay out of visa disputes or admission disputes.

[00:01:43] Speaker 02:
But there are exceptions to the doctrine of consular non-reviewability.

[00:01:46] Speaker 02:
One of them, the first one, is on the text of the doctrine itself, which was reiterated as late as Muñoz last year in the Supreme Court case in Muñoz, which is unless otherwise expressly authorized by law.

[00:01:59] Speaker 02:
And the seminal case in this is Meacham v. Foster, a Supreme Court case from 1972, which the parallels between Meacham and the case at hand are uncanny.

[00:02:09] Speaker 02:
Because in Meacham, the Supreme Court dealt with anti-injunction statute from 1793,

[00:02:16] Speaker 02:
which also provides an absolute bar to injunctions against state courts or state action with certain exceptions.

[00:02:23] Speaker 02:
And in this case, we have the doctrine of constant non-reviewability that's been around for over 100 years that is also an absolute ban on review of visa decisions with, again, exceptions.

[00:02:35] Speaker 02:
And both of those, both the anti-injunction statute and the doctrine had the same exact

[00:02:40] Speaker 02:
text exception built into the text of the law itself, which is otherwise expressly authorized by law.

[00:02:47] Speaker 02:
And so in this case, in Meacham, we had Section 1983, which is very broad and intrusive in a sense that's supposed to be sort of like the guardian between violations of constitutional rights.

[00:03:00] Speaker 02:
The federal court is between government and the people in terms of violation of constitutional rights.

[00:03:05] Speaker 02:
And in this case, we have RFRA, which protects the First Amendment right, protects the right to religious expression.

[00:03:13] Speaker 02:
And so those cases, the Meechum is just uncannily parallel to the case at hand.

[00:03:18] Speaker 04:
It's interesting.

[00:03:19] Speaker 04:
You didn't cite it in your opening brief.

[00:03:23] Speaker 02:
That is true, Your Honor.

[00:03:24] Speaker 02:
That was in our reply brief in response to the government's argument that RFRA does not provide an express authorization.

[00:03:34] Speaker 02:
Our argument originally was that RFRA is the exception to the law, but they made issue out of that there's no citation, if you will, to the doctrine of constant reviewability, how RFRA doesn't trump because of no citation.

[00:03:47] Speaker 02:
And Meacham says, you don't need a citation.

[00:03:49] Speaker 02:
You don't need a reference to the other statute.

[00:03:50] Speaker 04:
But don't you need something more expressed than what we see in RFRA?

[00:03:56] Speaker 02:
I don't believe so, Your Honor.

[00:03:57] Speaker 04:
I mean, the Supreme Court just has this blanket statement about federal law.

[00:04:03] Speaker 04:
It's pretty sweeping.

[00:04:05] Speaker 04:
And I thought that the expressly authorized, wouldn't that require more than that?

[00:04:15] Speaker 02:
And that was the exact question in Nietzsche, Your Honor.

[00:04:17] Speaker 02:
And the Supreme Court did not think that it needed more than that.

[00:04:20] Speaker 02:
Because we dealt with Section 1983, which is also a very broad and general scope.

[00:04:24] Speaker 02:
It wasn't necessarily directed at the federal anti-injection statute.

[00:04:30] Speaker 04:
Well, but didn't we say in one of our cases that it doesn't apply to qualified immunity?

[00:04:39] Speaker 02:
So there are some cases where RFRA has been held to not necessarily apply.

[00:04:46] Speaker 02:
But those have shaped relief, not caught out relief altogether.

[00:04:52] Speaker 02:
like was the case here, because then otherwise RFRA would lose its meaning when there's zero relief in a case like this.

[00:04:58] Speaker 04:
Well, if someone has qualified immunity, that cuts off relief.

[00:05:04] Speaker 02:
That is true.

[00:05:11] Speaker 02:
So I believe the court's referring to the case in Rajaj, right?

[00:05:15] Speaker 02:
Correct, correct.

[00:05:16] Speaker 02:
Which interpreted the Tanzanvi Tanvir, I believe.

[00:05:23] Speaker 02:
So, welfare provides for review and appropriate relief, not unfettered right to win.

[00:05:29] Speaker 02:
So the review goes to rules and procedures.

[00:05:31] Speaker 02:
For example, one, and as Mr. Goldsmith pointed out,

[00:05:36] Speaker 02:
There are certain things, like you can't just blow a deadline and claim I still went under RFRA even though you're not following the rules of how claims are supposed to proceed.

[00:05:44] Speaker 02:
But our judge talked about background presumptions and that RFRA is context dependent and following TENZIN.

[00:05:53] Speaker 02:
And all of those to say that there are rules and procedures that need to be followed and that RFRA can still provide appropriate relief.

[00:06:02] Speaker 02:
So in that case, the reason why RFRA was not

[00:06:05] Speaker 02:
allowed to proceed was because this, I believe it was section 1983 as well, that there was a comment in the RFRA during enactment that it said that it wasn't meant to replace section 1983 relief.

[00:06:23] Speaker 02:
And so in that case, they said it follows under the same background presumption that section 1983 had prior to the RFRA's enactment.

[00:06:29] Speaker 02:
So that was a very specific, very niche, narrow area that was being addressed there.

[00:06:34] Speaker 00:
Counsel, do I have it right that, well, first of all, there's just not a lot of law in this question, is my understanding.

[00:06:40] Speaker 02:
That's correct.

[00:06:41] Speaker 00:
Certainly there's no Supreme Court or other circuits that have held that RFRA can pierce the doctrine of consular non-reviewability.

[00:06:48] Speaker 00:
Is that right?

[00:06:51] Speaker 02:
Specifically to RFRA, that is correct, Your Honor.

[00:06:53] Speaker 02:
There are only two district court cases, Ashby and Kedar, from North Carolina and New York.

[00:06:58] Speaker 02:
But both of those cases essentially said that, well, RFRA sort of dismissed it offhand without any analysis saying, well, RFRA is statutory, so it just doesn't apply.

[00:07:08] Speaker 02:
But that's not the case in the 10th where RFRA rights are considered as constitutional rights.

[00:07:12] Speaker 00:
Okay, so if this case is somewhat of a case of first impression,

[00:07:16] Speaker 00:
that makes me also think about limiting principles.

[00:07:19] Speaker 00:
And in your opening brief, you said that the metaphorical floodgates would not be opened because if we were to hold that RFRA can pierce this doctrine, that it would be relatively narrow and limited to the R-1 visa program.

[00:07:33] Speaker 00:
But I'm not sure I understand why that would be true.

[00:07:36] Speaker 00:
If we were to hold that RFRA can be applied to review decisions made by U.S.

[00:07:42] Speaker 00:
consular officers overseas, why couldn't

[00:07:46] Speaker 00:
claimants beyond the R-1 visa program be able to bring RFRA claims?

[00:07:51] Speaker 02:
If they were able to articulate a sincere exercise of religion that is being substantially burdened, then they should get review as well.

[00:08:00] Speaker 00:
I mean, maybe I just have a very vivid imagination, but I can imagine that's true.

[00:08:04] Speaker 00:
I mean, why wouldn't, whether it be any type of church of any faith or individuals who would have rights to claim and bring,

[00:08:12] Speaker 00:
on behalf of others who are overseas trying to get to the United States, why couldn't they say, this is a deeply or sincerely held religious belief, it's a central tenet of my faith, therefore, my RFRA rights get to supersede or take the place of the decisions that consular officers are making that are enforcing State Department policy.

[00:08:32] Speaker 02:
If they can articulate, if they can articulate a prima facie case under RFRA, they should get review.

[00:08:38] Speaker 02:
But the reason why this isn't the floodgates is because if this religious right is sort of like so far-fetched, kind of saying, well, I have a religious right to live with my foreign spouse in the US, then they wouldn't get past Muñoz.

[00:08:53] Speaker 02:
Because Muñoz essentially said that.

[00:08:54] Speaker 02:
you can have a religious right to marriage, but not a right to live in the United States.

[00:09:00] Speaker 02:
It would be hard to articulate a religious right in those types of circumstances.

[00:09:06] Speaker 02:
But in this case, it's very clear, very direct.

[00:09:11] Speaker 02:
wants to limit the holding and just saying that based on the particular facts of this case, because the denial in this case was strictly directly to the religious rights.

[00:09:21] Speaker 02:
This wasn't just some random denial that he had a crime or whatever, that he wasn't being allowed into the country.

[00:09:26] Speaker 02:
The reason why he was denied was simply because he received a payment

[00:09:31] Speaker 02:
for the religious work that he was doing in the US during that time.

[00:09:35] Speaker 00:
Do you agree that receiving that honorarium from the church violated the terms of his B-1, B-2 visa?

[00:09:41] Speaker 02:
I do not agree, Your Honor, and neither does the Foreign Affairs Manual, which explicitly permits payment of honorariums or allowances to religious workers who are here on the B-1, B-2 visa.

[00:09:57] Speaker 04:
I don't want you to spend too much time on this, but I would

[00:09:59] Speaker 04:
just curious about your characterization of RFRA as a super statute.

[00:10:05] Speaker 04:
Are there any other super statutes?

[00:10:09] Speaker 02:
I don't know, but RFRA certainly is.

[00:10:11] Speaker 02:
Justice Gorsuch said that.

[00:10:14] Speaker 04:
Well, I'm not going to take issue with him right this moment, but I am interested in whether there are any other super statutes out there.

[00:10:24] Speaker 02:
I don't know, Your Honor.

[00:10:26] Speaker 02:
I haven't really done a survey or to think that.

[00:10:28] Speaker 02:
But in a certain way, the Supreme Court in Meacham considered 1983 to be a, didn't call it a super statute.

[00:10:39] Speaker 02:
It's sort of like super enough to provide express authorization.

[00:10:43] Speaker 04:
I don't want to take up more of your time.

[00:10:45] Speaker 02:
That's fine.

[00:10:45] Speaker 02:
Right.

[00:10:47] Speaker 02:
So very briefly, Your Honor, there are two other exceptions to the doctrine of constant unreviewability, the facial adjuvant bona fide,

[00:10:53] Speaker 02:
And in this case, the 10th Circuit law in March of the Green says that the consular officer needs to provide both a legal basis and some factual basis for that, and zero facts were provided.

[00:11:06] Speaker 02:
Consular officer, as the government has conceded, are the only ones that can make factual determinations, and none were made in this case.

[00:11:13] Speaker 04:
And then there's... On that issue, I was curious about the...

[00:11:20] Speaker 04:
The failure to overcome the presumption of immigrant intent is one of the facially legitimate reasons.

[00:11:29] Speaker 04:
And you don't do much with that ground here.

[00:11:33] Speaker 04:
And I'm wondering why not.

[00:11:34] Speaker 02:
The reason is because, Your Honor, the consular decision which stands, which is the subject of the case today,

[00:11:42] Speaker 02:
did not use that as a ground for denial.

[00:11:45] Speaker 02:
This was in a previous consular application that was used, but in the last one that is the subject of the case today, that was not used as a ground for denial, and the presumption is that that was overcome at the second consular interview.

[00:12:02] Speaker 02:
And the district court actually acknowledged that and acknowledged that

[00:12:06] Speaker 02:
there's not enough facts in the record to go into that issue.

[00:12:09] Speaker 02:
So the presumption was that the only ground for denial is the fraud and misrepresentation.

[00:12:13] Speaker 04:
And is that consistent with the legal net opinion, what you just said?

[00:12:19] Speaker 02:
The legal net opinion is irrelevant in this case, Your Honor, because as defendants, as the government has conceded, the consular officer is the only person

[00:12:30] Speaker 02:
that can make factual and legal determinations, make a decision on the visa.

[00:12:35] Speaker 02:
Even the Secretary of State himself, which was dismissed in this lawsuit for that argument, cannot make that sort of determination.

[00:12:42] Speaker 02:
So anything that anybody else said is irrelevant.

[00:12:47] Speaker 02:
I was hoping to reserve a couple of minutes for rebuttal, but very briefly, I want to address the prima facie claim.

[00:12:52] Speaker 02:
Because in this case, the court said that, well, they can just hire anybody else.

[00:12:56] Speaker 02:
And so that's not a substantial burden.

[00:12:58] Speaker 02:
Well, that goes against decades of Supreme Court law that says that the government cannot, should not get in between the relationship between church and minister.

[00:13:06] Speaker 02:
And just saying that they can hire somebody else, this is not just a regular employment decision.

[00:13:10] Speaker 02:
This would be the same as the Sacred College of the Cardinals picking a pope and the government saying, sorry, you can't have that one, pick another one.

[00:13:17] Speaker 02:
And that's not substantial burdening.

[00:13:19] Speaker 02:
On the other hand, on the issue of pay,

[00:13:21] Speaker 02:
The district court also erred in the sense that there was, it said that it doesn't change Calvary's compensation practices, this decision.

[00:13:30] Speaker 02:
This absolutely changes Calvary's practices because Calvary now is between a rock and a hard place by deciding if I have an itinerant minister coming on a B1, B2 in the first 90 days of their visit, I either have to pay them in accordance with my religious belief and violate the law or not pay them and obey the law but violate my religious beliefs.

[00:13:50] Speaker 02:
And so this absolutely changes their practices and substantially pressures them to change their practices.

[00:13:54] Speaker 00:
But it's not violating, the church isn't violating the wall.

[00:13:58] Speaker 00:
It's the visiting minister who's violating the terms of his visa.

[00:14:01] Speaker 00:
Isn't that different significance?

[00:14:04] Speaker 02:
I don't believe so, Your Honor, because the church, by this decision, tells Calvary that if they pay somebody as an itinerant minister that's a foreign national, they are doing something that is unlawful.

[00:14:16] Speaker 02:
The consequences are paid by the foreign minister

[00:14:19] Speaker 02:
But Calvary is also breaking the law according to this decision.

[00:14:24] Speaker 02:
If there's no further questions, I'd like to save my last 22 seconds for rebuttal.

[00:14:28] Speaker 02:
You can have it.

[00:14:30] Speaker 04:
Thank you, counsel.

[00:14:34] Speaker 01:
Your Honor, may I please the court?

[00:14:35] Speaker 01:
Aaron Goldsmith, on behalf of the government.

[00:14:38] Speaker 01:
This case involves an appeal by a single party raising a single claim.

[00:14:45] Speaker 01:
This court should affirm the decision of the district court, because the district court

[00:14:48] Speaker 01:
correctly dismissed Calvary Church's RFRA claim for two reasons.

[00:14:53] Speaker 01:
First, as a threshold matter, Calvary Church failed to state a claim because RFRA does not expressly authorize judicial review of the refusal of a visa.

[00:15:03] Speaker 01:
And second, Calvary failed to state a claim under RFRA because it failed to allege facts demonstrating a substantial burden.

[00:15:10] Speaker 01:
That is an actual incompatibility between Calvary Church's belief and the counselor officer's refusal.

[00:15:16] Speaker 01:
To be clear, there is no constitutional claim raised in this case.

[00:15:21] Speaker 01:
I understand in considering RFRA, courts often look at by analogy to other areas of law.

[00:15:29] Speaker 01:
But RFRA is distinct from a constitutional claim.

[00:15:33] Speaker 01:
They are not the same thing.

[00:15:35] Speaker 01:
And I would respectfully invite the court, if they had concerns about that, to look at the Hobby Lobby decision, page 2671, where they talk about how it's just a separate cause of action.

[00:15:47] Speaker 04:
Now, with respect to consular... Can I just, on whether there's a constitutional... I'm not going to ask you about refer in this respect, but I want to ask you about the doctrine of consular non-reviewability, because there's reference to it having this long lineage, judicial created, but also tied to separation of powers.

[00:16:12] Speaker 04:
Butch is the doctrine constitutionally based.

[00:16:17] Speaker 04:
And if it is, how does that factor into whether it applies here?

[00:16:22] Speaker 01:
Well, it is grounded in the separation of powers.

[00:16:25] Speaker 01:
And the Supreme Court said as much in Munoz.

[00:16:28] Speaker 01:
It also said that the admission or exclusion of a foreign national is a fundamental sovereign attribute.

[00:16:35] Speaker 01:
But that doesn't mean that any challenge, any cause of action,

[00:16:39] Speaker 01:
is constitutional.

[00:16:41] Speaker 01:
You look at the complaint to see whether they're raising a statutory or constitutional claim.

[00:16:46] Speaker 01:
And here they're raising a statutory claim.

[00:16:49] Speaker 04:
I understand that.

[00:16:50] Speaker 04:
I'm just wondering if that factor is relevant to the issue of whether RFRA overcomes

[00:17:02] Speaker 04:
the doctrine of consular reviewability.

[00:17:06] Speaker 04:
I know that the argument between parties has to do with whether it expressly authorizes judicial review.

[00:17:14] Speaker 04:
But in thinking about that, does it matter that there's some constitutional foundation for the doctrine?

[00:17:23] Speaker 01:
Yes.

[00:17:23] Speaker 01:
The fact that it's grounded in separation powers weighs against the finding that RFRA creates or supersedes

[00:17:31] Speaker 01:
this long-standing doctrine.

[00:17:33] Speaker 04:
I guess the counter to that is that this is really a matter of statutory interpretation of RFRA, in that it does refer to all federal law, whether statutory or otherwise.

[00:17:51] Speaker 04:
And then the question is, well, does that expressly authorize judicial review in this situation?

[00:17:58] Speaker 04:
And if I'm understanding

[00:18:01] Speaker 04:
back and forth here, the government's position is it's got to be more specific to the doctrine to apply.

[00:18:11] Speaker 04:
And I think Calvary is saying, well, wait a minute.

[00:18:16] Speaker 04:
It says all federal law, statutory or otherwise.

[00:18:21] Speaker 04:
And so the question I pose to you is why couldn't Congress make a blanket authorization, an express blanket authorization

[00:18:31] Speaker 04:
in referent?

[00:18:33] Speaker 01:
I understand your concerns, and I would respond by saying we're not writing on a blank slate.

[00:18:40] Speaker 01:
You mentioned a few moments ago the Ajov decision, and I think that is particularly instructive because this court looked to the

[00:18:48] Speaker 01:
the phrase applies to all federal law.

[00:18:50] Speaker 01:
And it said it doesn't mean RFRA overrides all federal doctrines or defenses.

[00:18:59] Speaker 01:
There was no basis for inferring that.

[00:19:02] Speaker 01:
There they had

[00:19:03] Speaker 01:
a long-established, judicially-created doctrine of qualified immunity.

[00:19:08] Speaker 03:
So they looked at the background legal environment.

[00:19:11] Speaker 03:
Correct.

[00:19:12] Speaker 03:
And in 1953, didn't the Supreme Court specifically say that consular non-reviewability can be overridden when expressly authorized by law?

[00:19:21] Speaker 03:
That was not the case in Ajad or any of the other cases that you cited.

[00:19:27] Speaker 01:
OK.

[00:19:28] Speaker 01:
But, Your Honor, if you look at, and we've had a long bullet point

[00:19:32] Speaker 03:
And in none of those situations, because I read every single one of them, in none of those situations, including qualified immunity, was there an express, to borrow a previous advocate's phrase, carve out

[00:19:49] Speaker 03:
when review is expressly authorized by law.

[00:19:54] Speaker 03:
Certainly wasn't the case for qualified immunity in a judge.

[00:19:59] Speaker 03:
Can you identify any of those examples where there was a carve out when review was expressly authorized by law?

[00:20:07] Speaker 01:
No.

[00:20:07] Speaker 01:
But those cases are significant because they are examples of dogs that did not bark.

[00:20:12] Speaker 01:
And none of those cases did the court say, OK, we need to consider

[00:20:18] Speaker 01:
and the applies to all federal law in terms of determining whether a latch is applicable.

[00:20:26] Speaker 01:
And in fact, this court's decision in Iglesia Pentecostal in the footnote, there was analysis of the waiver and forfeiture doctrine.

[00:20:35] Speaker 01:
And again, the court did not say, before we apply waiver, we have to look

[00:20:41] Speaker 01:
and determine whether it's different because it's a referral.

[00:20:44] Speaker 03:
Yeah, if they hadn't argued RFRA in district court and they came here, I don't think anybody in the room would say, well, they, you know, RFRA says that that supersedes forfeiture or waiver.

[00:20:56] Speaker 03:
So your point's well taken.

[00:20:58] Speaker 03:
But with regard to your dogs don't bark argument, how do we get around just reading two sentences?

[00:21:08] Speaker 03:
RFRA applies, as Judge Matheson said, to all federal law, whether statutory or otherwise.

[00:21:15] Speaker 03:
Consular non-reviewability can be overridden when expressly authorized by law.

[00:21:22] Speaker 03:
So what circumstances would there be in which RFRA would do what it purports to do in BB-3?

[00:21:34] Speaker 03:
In other words, to apply to other federal laws, whether statutory or otherwise.

[00:21:41] Speaker 03:
Can you give me an example?

[00:21:43] Speaker 01:
So Griffiths says a little bit more.

[00:21:44] Speaker 01:
It talks about appropriate relief, but doesn't define the appropriate relief.

[00:21:49] Speaker 01:
And what this court has said is you have to look at the context.

[00:21:52] Speaker 01:
You have to look at what was Congress intending, what were they inferring in the statute.

[00:22:02] Speaker 01:
I understand RFRA is somewhat unique.

[00:22:05] Speaker 01:
But here, there is simply no basis for inferring that in Congress, using that language that you just quoted, intended to create an exception to this long-established argument.

[00:22:18] Speaker 03:
And I thought you already made that argument when you pointed out that in a judge, we look at the background legal environment.

[00:22:24] Speaker 03:
In the background legal environment in 1993,

[00:22:27] Speaker 03:
had expressly recognized that there is an exception for consular non-reviewability when review is expressly authorized by law.

[00:22:36] Speaker 03:
And so I don't know how you fit.

[00:22:38] Speaker 03:
I know you're trying to use adjudge to your benefit.

[00:22:41] Speaker 03:
I don't know how I can credit your argument in light of adjudge because of its recognition that we look at background legal environments.

[00:22:51] Speaker 03:
And that was well settled in 1993.

[00:22:54] Speaker 01:
But express has to mean something more given the context of this important doctrine and the fundamental attribute of sovereignty involving the admission or exclusion of foreign nationalists.

[00:23:08] Speaker 03:
How do you respond to your, and I'll ask this question and I'll shut up, how do you respond to your adversary's argument that that's exactly what Mitchell versus Foster did?

[00:23:17] Speaker 01:
Well, I don't read that decision as saying that since 1972, any time

[00:23:24] Speaker 01:
You use the word express.

[00:23:26] Speaker 01:
That means express or implied.

[00:23:27] Speaker 03:
No, I think that they made the argument that under Mitchum, I just want to clarify my question.

[00:23:33] Speaker 03:
I'm going to let you answer it.

[00:23:35] Speaker 03:
But I think their argument is that, no, in Mitchum, they specifically address what expressly authorized by law means and that the statute to override the doctrine doesn't have to expressly refer to that doctrine.

[00:23:51] Speaker 03:
That's what I'm trying to hear.

[00:23:52] Speaker 01:
Right.

[00:23:53] Speaker 01:
And I understand your concern.

[00:23:55] Speaker 01:
I would say in response, that that was a particular statute that goes back to the dawn of the republic, the anti-injunction, and that there had been a long history, given the federalism concerns, of reading exceptions into the statute even where none existed, and then particularly

[00:24:17] Speaker 01:
For example, I think there was a bankruptcy law.

[00:24:18] Speaker 01:
There was an exception, even though the version of the anti-injunction statute that existed at the time didn't create that exception.

[00:24:27] Speaker 01:
And so the court there was not writing on a blank slate.

[00:24:30] Speaker 01:
They made the point in Mitcham that if we were to rule otherwise, we would have to overrule our private case law, particularly the younger doctrine that had just been decided.

[00:24:41] Speaker 01:
So I think that's a little bit different than the situation that we have here.

[00:24:46] Speaker 01:
And I would like to make a couple quick points in response to things that were said.

[00:24:53] Speaker 01:
There was a contention that the legal net opinion is irrelevant.

[00:24:57] Speaker 01:
It was attached to the complaint as Exhibit 1.

[00:25:00] Speaker 01:
It is incorporated by reference.

[00:25:02] Speaker 01:
It sets forth what the consular officer actually decided.

[00:25:07] Speaker 01:
And I think it's highly relevant.

[00:25:09] Speaker 01:
There was a specific finding that the beneficiary, Mr. Green, made a material

[00:25:15] Speaker 01:
misrepresentation under Section C-1, and it just expressly says there was a material misrepresentation.

[00:25:23] Speaker 01:
And that was the basis for the consular officer's decision.

[00:25:29] Speaker 01:
Congress committed those types of discretionary determinations to the consular officer here.

[00:25:36] Speaker 01:
The consular officer made a determination as to the mental intent of the beneficiary.

[00:25:42] Speaker 01:
And just to be clear, if under the facts even as alleged, you're talking about someone coming to the beginning of April, April 9, 2022, 14 days later, the Calvary Church is petitioning on their behalf to employ them as a worship director, and afterwards, they're put on payroll.

[00:26:02] Speaker 01:
But under those facts, a consular officer could conclude that Mr. Green misrepresented the purpose of

[00:26:12] Speaker 01:
his trip that he wasn't coming here as, for example, as a tourist.

[00:26:16] Speaker 01:
He was coming here to be employed, employed for hire.

[00:26:20] Speaker 01:
That's not permitted under 22 CFR 4131 B1, which says that... I'm sorry.

[00:26:28] Speaker 00:
Can I ask, though?

[00:26:29] Speaker 00:
Your opposing counsel, I asked the question about whether they agreed that Mr. Green violated the terms of the B1, B2 visa.

[00:26:35] Speaker 00:
Not only did they not agree and concede that, they also said

[00:26:39] Speaker 00:
that the State Department, I can't remember, some regulation from the State Department says that honoraria are able to be paid.

[00:26:46] Speaker 00:
So how do I square that with what you're just mentioning here about the consular officer's act finding?

[00:26:51] Speaker 01:
Because what's controlling is the statute and the regulations.

[00:26:55] Speaker 01:
And what the statute defines what honorarium is under 1182 subsection P and Q. And

[00:27:02] Speaker 01:
And they've said, we paid honorarium.

[00:27:05] Speaker 01:
But based on their allegations, it doesn't match up with the legal definition that Congress created.

[00:27:12] Speaker 01:
What controls is what Congress set forth in the statute.

[00:27:16] Speaker 01:
And it simply doesn't meet the legal definition.

[00:27:18] Speaker 00:
So is there a conflict or tension between the statute and the State Department regulation?

[00:27:25] Speaker 01:
No.

[00:27:26] Speaker 01:
And let me explain why.

[00:27:28] Speaker 01:
What is always controlling is the statute and regulations.

[00:27:31] Speaker 04:
Could I interject?

[00:27:34] Speaker 04:
This is the Foreign Affairs Manual that they're talking about.

[00:27:37] Speaker 04:
Correct.

[00:27:37] Speaker 04:
Is that the regulation?

[00:27:38] Speaker 01:
No, no.

[00:27:39] Speaker 04:
Is it in conflict with the regulation?

[00:27:42] Speaker 01:
No, Your Honor.

[00:27:43] Speaker 01:
What it is, it's like an owner's manual.

[00:27:45] Speaker 01:
It's an explanation for consular officers who are often not attorneys explaining what the statute and what the regulations require.

[00:27:54] Speaker 01:
And it sets forth, you know, they're required to deny a visa if they find

[00:28:00] Speaker 01:
And Congress has required this if they find there was a material misrepresentation.

[00:28:05] Speaker 01:
Since there's no device that allows you to read someone's mind, you necessarily have to determine mental intent based on the facts before it.

[00:28:15] Speaker 01:
And it has this so-called 90-day rule where it says if you've come here on a B1, B2 visa and within 90 days you do something inconsistent with that, you can find intent.

[00:28:26] Speaker 01:
That doesn't mean once you get to 91 days you can ignore

[00:28:30] Speaker 01:
the binding regulations.

[00:28:31] Speaker 01:
It doesn't mean if you violate it within 90 days, you've necessarily made a misrepresentation.

[00:28:39] Speaker 01:
But it's just an explanation to someone who's not necessarily a lawyer as to how you find intent.

[00:28:45] Speaker 01:
And here, under even their facts, there was, I see my time is about to expire, if I could just finish this thought, there was a reasonable basis for finding the intent to make a misrepresentation.

[00:28:59] Speaker 01:
That was the basis for the finding I set forward in Exhibit 1, but we don't even get there because the doctrine of constant non-reability bars judicial review, and on that basis, this Court should affirm the decision of the District Court dismissing under Rule 12b6.

[00:29:16] Speaker 04:
Thank you, Council.

[00:29:25] Speaker 02:
In 20 seconds, Number 1.

[00:29:29] Speaker 02:
First of all, the FAM, the Foreign Affairs Manual, allows both honoraria and allowances.

[00:29:36] Speaker 02:
And the definition that Mr. Goldsmith was talking about in the statute is only about honorariums and not allowances.

[00:29:42] Speaker 02:
Second, even if he engaged in unauthorized employment, so what?

[00:29:47] Speaker 02:
They still get review.

[00:29:49] Speaker 02:
Because that unauthorized employment does not translate to fraud.

[00:29:52] Speaker 02:
And it has been made clear in this case that this was a presumption of unauthorized, presumption of fraud

[00:29:59] Speaker 02:
not actual fraud.

[00:30:00] Speaker 02:
I don't see him at a time.

[00:30:01] Speaker 04:
Did you have a three?

[00:30:07] Speaker 02:
I do.

[00:30:08] Speaker 04:
Well, it sounded like you did.

[00:30:09] Speaker 04:
Why don't you do one more?

[00:30:10] Speaker 02:
All right.

[00:30:11] Speaker 02:
I will do one more.

[00:30:12] Speaker 03:
Has the judge ever told you that?

[00:30:16] Speaker 02:
No.

[00:30:17] Speaker 02:
And I appreciate the indulgence, Judge Matheson.

[00:30:21] Speaker 02:
And the last point was as to constitutional right versus a statutory right.

[00:30:27] Speaker 02:
The district court got that right.

[00:30:29] Speaker 02:
They said the district court followed 10th Circuit precedent that said RFRA equals the constitutional right in the 10th Circuit.

[00:30:35] Speaker 02:
And that's why it followed the entire analysis through the Mandel exception and the bad faith exception.

[00:30:42] Speaker 02:
And so in this case, it's not, I don't even know why that's an issue that was not raised as an error and it was not appealed by the government.

[00:30:50] Speaker 02:
So the bottom line is it comes down to the consular officer denying a visa and saying that religious work, permitted religious work, was unauthorized employment and extrapolated that to a presumption of fraud.

[00:31:06] Speaker 02:
And this substantially burdens Calvary's rights and they are entitled to review.

[00:31:11] Speaker 02:
Thank you.

[00:31:12] Speaker 02:
I thank you for your time.

[00:31:13] Speaker 02:
Thank you, counsel.

[00:31:15] Speaker 04:
It always seems there's at least three points.

[00:31:19] Speaker 04:
Thank you both for your arguments this morning.

[00:31:23] Speaker 04:
It's a very interesting case, and we will take it as submitted.

[00:31:29] Speaker 04:
And Counselor excused.