[00:00:00] Speaker 04: So we'll turn to 24-1451, Mukhtar versus Lambrecht. [00:00:08] Speaker 04: Ms. [00:00:08] Speaker 04: Chan, you may proceed. [00:00:10] Speaker 00: Thank you. [00:00:11] Speaker 00: Good morning, Your Honors. [00:00:12] Speaker 00: May it please the court? [00:00:14] Speaker 00: Catherine Chan on behalf of Mrs. Isa Mukhtar, the appellant. [00:00:17] Speaker 00: This case asks whether the government can moot out the civil action in the federal court by its sui sponte reopening of the underlying immigration case. [00:00:26] Speaker 00: At least eight federal courts in the second, third, seventh, eighth, ninth, eleventh, and the D.C. [00:00:34] Speaker 00: Circuit have weighed in on this question, and none have found blanket authority for the government to move out to moot out a civil case on its Suez-Sponte action. [00:00:43] Speaker 04: Was it Suez-Sponte in this case? [00:00:46] Speaker 04: Isn't that what he sought in court was to start over again? [00:00:52] Speaker 04: So what was it? [00:00:54] Speaker 04: Wasn't [00:00:55] Speaker 04: Wasn't the agency just responding to the complaint? [00:00:58] Speaker 04: Said, okay, that's what she wants. [00:01:02] Speaker 04: We'll give it to her. [00:01:04] Speaker 04: Explain why this was so respondent. [00:01:07] Speaker 00: Thank you, Your Honor. [00:01:09] Speaker 00: Ms. [00:01:09] Speaker 00: Mukhtar asked whether the government had any authority to require of her a physical medical exam. [00:01:15] Speaker 00: The regulations provide that she does not. [00:01:18] Speaker 00: The statute provides that she does not. [00:01:20] Speaker 00: So her question to the district court was whether the government's decision denying her residency despite four approved medical exams that she submitted was in fact legal error. [00:01:32] Speaker 00: So the Sue Espante action by the government to reopen her case was not [00:01:37] Speaker 00: what she was looking for. [00:01:38] Speaker 00: She was looking for the decision to be set aside because the government's requirements in and of themselves were all treverous. [00:01:45] Speaker 04: Did she not? [00:01:46] Speaker 04: I thought her complaint actually sought that relief to have a new hearing, new proceeding. [00:01:53] Speaker 04: No? [00:01:54] Speaker 00: No, Your Honor, she specifically asked for the government's decision to be set aside and each of our arguments pointed to the statutes and regulations that cited that the government had no authority to request the medical exam in the first place. [00:02:07] Speaker 00: The government's authority for refugees [00:02:09] Speaker 00: is only to seek vaccination proof. [00:02:13] Speaker 00: Refugees are pre-vetted when they enter the United States, so both the regulations and the statutes clarify that their only additional requirement for the medical exam is to prove the vaccination records. [00:02:26] Speaker 00: She in fact submitted four full medical exams [00:02:30] Speaker 00: in addition to the vaccination records, each of which qualified her for a residency. [00:02:35] Speaker 00: And yet the government requested additional upon additional medical exam, expecting her to prove that she was inadmissible when the government's own medical doctors did not find that inadmissibility. [00:02:47] Speaker 02: Counsel, does it matter? [00:02:49] Speaker 02: OK, so I'll accept your premise that she was only required to have one [00:02:57] Speaker 02: exam to be admitted to the country as a refugee. [00:03:02] Speaker 02: Does it matter that she wasn't seeking to continue her refugee status here? [00:03:09] Speaker 02: She was asking for legal permanent residence, which is a different category. [00:03:14] Speaker 02: Does that matter that she's seeking a different status? [00:03:20] Speaker 00: Thank you, Your Honor. [00:03:20] Speaker 00: That does not matter because refugees, when they adjust their status, that date relates back to the date that they entered as a refugee. [00:03:29] Speaker 00: So they do not fit the same admission question that other permanent residents seeking admission as a permanent resident are. [00:03:38] Speaker 00: She's admitted already as a refugee and the residency portion relates back to the admission date when she first entered the country. [00:03:50] Speaker 02: Tell me where would I look to find that authority? [00:03:54] Speaker 00: Yes, your honor. [00:03:55] Speaker 00: I will look that up. [00:03:58] Speaker 00: Go ahead. [00:04:01] Speaker 00: There's a regulation and a statute that relates for adjustment of status for refugees. [00:04:08] Speaker 00: The regulation is found at 8 CFR 209.1 parentheses, small c close parentheses, and the statute is 8 USC 1159. [00:04:19] Speaker 02: Okay, thank you. [00:04:22] Speaker 00: Thank you. [00:04:26] Speaker 04: May I return to my original question because your response surprised me. [00:04:30] Speaker 04: I'm not saying it's wrong, but it surprised me because apparently in her request for relief, she asked the court to quote, set aside the defendant's decision on her form I-485 and direct the defendants to issue a new decision on the application for residency. [00:04:52] Speaker 00: Yes, Your Honor. [00:04:53] Speaker 00: The court is not allowed to make the decision on residency. [00:04:57] Speaker 00: That decision is reserved to the agency. [00:05:00] Speaker 00: Therefore, the court's power in this case would have been to tell the agency that their decision on residency was mistaken and to instruct the agency to issue a new decision. [00:05:10] Speaker 00: And that was what Ms. [00:05:10] Speaker 00: Mukhtar was seeking. [00:05:11] Speaker 00: That's what all of the briefing explains in excruciating detail. [00:05:16] Speaker 00: that the agency had no right to ask her for a medical exam, which they did multiple times. [00:05:23] Speaker 00: And once they denied her on approved medical exams, it was then doubly outside of its grounds for denying her residency. [00:05:32] Speaker 04: But would you still consider it a suicide action? [00:05:37] Speaker 04: by the agency to say okay we'll reopen and proceed and make a new decision on her application and they apparently that was not an insincere thing they asked her again for records and she refused to comply with [00:05:57] Speaker 04: refused to provide more records. [00:06:01] Speaker 04: And then the BIA ruled against her. [00:06:04] Speaker 04: She could have appealed at that point and said, well, you reopened, but you made this, you repeated your mistake. [00:06:11] Speaker 04: So now I'm entitled to relieve. [00:06:13] Speaker 04: Why would that not have been the way to proceed at this point? [00:06:17] Speaker 04: What was so terrible about the agency saying, okay, we'll try it again. [00:06:26] Speaker 00: A couple of things, Your Honor. [00:06:27] Speaker 00: The first is that the agency never asked the court if it could reopen the case. [00:06:32] Speaker 00: None of the federal circuits that have reviewed this have found any sua sponte authority for the government to divest the federal court of its original jurisdiction under the APA to hear the matter. [00:06:45] Speaker 00: In this case, that is exactly what happened. [00:06:47] Speaker 00: The agency acted on its own in a sua sponte manner [00:06:51] Speaker 00: including requesting the very same things that form the basis of the complaint, whether the agency had any right or authority to even seek that information. [00:07:01] Speaker 00: Therefore, the concern here, just to clarify, the case never went to the BIA. [00:07:07] Speaker 00: There was a previous administrative appeal, but it was not a BIA. [00:07:10] Speaker 04: I'm sorry. [00:07:10] Speaker 04: Yes, I apologize. [00:07:11] Speaker 00: No worries. [00:07:12] Speaker 00: I just wanted to make sure the record was clear. [00:07:14] Speaker 00: We don't have a BIA decision. [00:07:16] Speaker 00: But in any case, when the district court failed to review whether or not the government had any authority to request even one medical exam from Ms. [00:07:27] Speaker 00: Mukhtar, much less five as it was seeking in the newly reopened request for evidence, that brought up the question of what was the government's authority on its Sue Espante motion to divest the federal court. [00:07:39] Speaker 00: the regulation that the agency relies upon allows a service officer to reopen a case on its own motion. [00:07:48] Speaker 00: And the actions of this case essentially demonstrate that the service officer's decision has mooted out the district court's APA jurisdiction. [00:07:57] Speaker 00: There is simply no authority for that, Your Honor. [00:08:00] Speaker 00: The district court did not include any argument to state that it would have been in agreement with the motion to reopen, that [00:08:09] Speaker 00: It allowed the motion to reopen. [00:08:11] Speaker 00: It, in fact, never even addressed any of those questions. [00:08:16] Speaker 00: And simply to state, the government never even cited the authority allowing it to reopen cases in its new request for evidence for the fifth time, seeking things that Ms. [00:08:27] Speaker 00: Mukhtar had already produced, that she was not required by law to produce, and that in our argument to the district court, the government's actions were prima facie outside the bounds of the law. [00:08:39] Speaker 00: Let me ask you. [00:08:39] Speaker 04: So what are you seeking? [00:08:41] Speaker 04: Let me ask one question, first judge question. [00:08:44] Speaker 04: So what are you seeking? [00:08:45] Speaker 04: If all this was incorrect, what do you want from this court? [00:08:49] Speaker 04: A ruling on whether they could reject her on the basis of the medical records she had provided? [00:08:59] Speaker 04: Is that what you're seeking or what else? [00:09:02] Speaker 04: What is it? [00:09:03] Speaker 00: That would be very welcome by Ms. [00:09:05] Speaker 00: Mukhtar since the facts are already established by both parties. [00:09:10] Speaker 00: What we think would be more important moving forward in this circuit is for the court to speak directly to the government's authority or lack thereof to sue Esponti divest the federal court of valid APA jurisdiction, for which we have cited Rolex V. Baran, which has been followed by all this. [00:09:27] Speaker 04: Say we do that. [00:09:29] Speaker 04: Say we do that, okay? [00:09:30] Speaker 04: You were wrong to do this. [00:09:32] Speaker 04: Now how do we dispose of the appeal? [00:09:34] Speaker 00: Since the district court never weighed in on any of these legal questions, one manner would be to remand for the district court to weigh the legal questions. [00:09:44] Speaker 00: And if the court is willing to decide the case on its merits, again, Ms. [00:09:49] Speaker 00: Mukhtar would welcome that because both the statute and regulations make absolutely clear that she was not even required to give a medical exam, only vaccination requirements. [00:09:59] Speaker 00: And for a medical exam she gave, [00:10:01] Speaker 00: each was approved by a panel physician of the government. [00:10:07] Speaker 04: The one thing you definitely want, at least as a minimum, is to send back to the district court [00:10:16] Speaker 04: to have proceedings. [00:10:17] Speaker 04: But you would welcome, I gather, a decision by this court on the merits of the issue. [00:10:24] Speaker 04: Is that right? [00:10:25] Speaker 04: Yes, Your Honor. [00:10:25] Speaker 04: OK. [00:10:26] Speaker 04: Sorry, Judge Carson. [00:10:28] Speaker 02: OK. [00:10:29] Speaker 02: I have a couple of questions. [00:10:30] Speaker 02: And there are some underlying premises to your argument. [00:10:34] Speaker 02: And one of them is the idea that once she had the initial examination to be admitted as a refugee into this country, [00:10:43] Speaker 02: that at that point, there's no authority for the government to ever require her to have another one. [00:10:51] Speaker 00: Yes, Your Honor, that is in the statute and the regulation. [00:10:54] Speaker 02: OK, and I will give you that the regulation seems to say something like that. [00:11:00] Speaker 02: My second question is, what if she's admitted and there are some notations in their medical report and the government finds out once she gets to the country that she has some alarming behavior and maybe her medical conditions have worsened or that they were worse than originally noted? [00:11:24] Speaker 02: Would the government be without authority to exclude her on that basis? [00:11:30] Speaker 00: Your Honor, specifically to the facts of this case where she was found incompetent to proceed in the state court below, the state court below also released her from supervision from the state's mental health care institute. [00:11:45] Speaker 00: So in other words, the state has found her not to be a danger to society by releasing her from the obligations for inpatient care. [00:11:54] Speaker 02: I'll accept that. [00:11:57] Speaker 02: I know that that's one of the facts in the case. [00:12:00] Speaker 02: I'm just asking as a general matter, is it your position that the government wouldn't be able to look at that and say, whoa, this is concerning. [00:12:10] Speaker 02: Look what's happened. [00:12:11] Speaker 02: It looks like her conditions worsen. [00:12:14] Speaker 02: We either want another examination or we're just going to exclude her outright. [00:12:20] Speaker 00: Your Honor, because both the statute and the regulation speak directly to that, it is our argument that the government cannot override the statute or the regulation on its own hunch, if you will, or premise. [00:12:32] Speaker 02: And even if the government doesn't... It's not a hunch or a premise. [00:12:36] Speaker 02: I mean, they have actual evidence in this case that there are problems. [00:12:42] Speaker 02: I mean, maybe they've been dealt with, but the government, I mean, they're not proceeding in bad faith. [00:12:49] Speaker 02: I mean, there are things that happen. [00:12:54] Speaker 00: The things that happened, Your Honor, again, the exclusionary grounds for adjustment of status, she hasn't triggered any on criminal grounds. [00:13:03] Speaker 00: She hasn't triggered any on medical grounds. [00:13:06] Speaker 00: Both the statute and regulations say that for refugees who have very specific rules outside of the general population when it comes to adjustment of status, her residency are not required to repeat a medical exam. [00:13:19] Speaker 00: Most refugees do come to the United States with certain pre-existing significant mental health trauma. [00:13:26] Speaker 00: And that may explain why the statute and the regulation foreclose the second guessing of that because of the significant vetting that happens before they're admitted as refugees by the United States government, including medical providers for the government. [00:13:43] Speaker 02: Okay, I have one more question about about the government's ability to require further exams and that is, I mean, if she provides the government with an exam where the doctor didn't fully fill out a form or there's something that's clearly erroneous on it. [00:13:57] Speaker 02: It's internally contradictory or something like that. [00:13:59] Speaker 02: I mean, is the government required to accept that form just because she got it from their provider? [00:14:05] Speaker 00: Your Honor, we cited this fully in the briefing. [00:14:08] Speaker 00: The government has an internal process where it, not Ms. [00:14:12] Speaker 00: Mukhtar, is supposed to reach out to its own medical provider and ask for clarification. [00:14:17] Speaker 00: The government has never once requested that from any of its own providers. [00:14:21] Speaker 00: and instead attempted to shift the burden to Ms. [00:14:24] Speaker 00: Mukhtar to provide what the government is seeking, which the government's doctors are not stating. [00:14:30] Speaker 00: So yes, there is a process for the government to check with their own doctors, which they have failed to do in every instance in this case. [00:14:39] Speaker 01: Can I ask one question about an issue that we haven't talked about? [00:14:45] Speaker 01: The government argues in the alternative that there was not a jurisdiction because there was not a final agency action. [00:14:52] Speaker 01: And I don't recall seeing anything in your reply brief addressing that. [00:14:58] Speaker 01: Am I incorrect about that? [00:15:01] Speaker 01: And in any event, is there a response to the government's argument [00:15:09] Speaker 01: for lack of jurisdiction, irrespective of mootness. [00:15:15] Speaker 00: I request the court's permission to go over my time to respond. [00:15:17] Speaker 00: Yes, please. [00:15:18] Speaker 00: Thank you. [00:15:20] Speaker 00: The finality question is what is baked in into the Rolex argument as to when and if the government can sue Espante reopen a case. [00:15:29] Speaker 00: So our argument is that, number one, the government does not have regulatory authority to override the court's jurisdiction. [00:15:37] Speaker 00: Second, that the first decision marked was final because the court never allowed the government to reopen it. [00:15:44] Speaker 00: The court simply accepted that the government had reopened it without any addressing of Ms. [00:15:49] Speaker 00: Mukhtar's claims as far as the case in chief. [00:15:52] Speaker 00: So we would count the first decision in July of 2020 as marking the final decision. [00:15:58] Speaker 00: And the government's subsequent reopening was the exact same matter that we had been litigating with them. [00:16:05] Speaker 00: Today marks actually 10 years of litigation on the same question. [00:16:11] Speaker 04: Thank you, Council. [00:16:12] Speaker 00: Thank you. [00:16:15] Speaker 04: Mr. Tucker? [00:16:22] Speaker 04: You may proceed, Mr. Tucker. [00:16:25] Speaker 03: Your Honor, I think I'm proceeding now. [00:16:28] Speaker 03: If I may, Michael Johnson for the government. [00:16:30] Speaker 04: Oh, I'm sorry. [00:16:31] Speaker 04: What's the? [00:16:36] Speaker 04: OK, you're the right person from the picture, but you're labeled as Mr. Tucker on my screen. [00:16:42] Speaker 04: Maybe I'm misreading something. [00:16:47] Speaker 04: Yes, Michael Johnson is supposed to be the attorney representative. [00:16:49] Speaker 04: Can we start again at 15 minutes? [00:16:54] Speaker 04: I apologize. [00:16:57] Speaker 03: Thank you, Your Honor. [00:16:58] Speaker 03: Good morning, Your Honors. [00:17:00] Speaker 03: Michael Johnson for the government. [00:17:02] Speaker 03: This Court should affirm because the District Court correctly ruled that this matter is moot. [00:17:07] Speaker 03: This Court should also affirm because there's no final agency action in this case, and Ms. [00:17:13] Speaker 03: Mukhtar has not responded to the government's argument that there is no final agency action, and therefore that issue is waived. [00:17:22] Speaker 03: This case, as to mootness, Your Honors, this case is really a pleading case. [00:17:27] Speaker 03: Ms. [00:17:28] Speaker 03: Mukhtar asked for very specific relief in her complaint. [00:17:32] Speaker 03: Judge Hartz, you quoted the exact language in the prayer for relief in the petition. [00:17:39] Speaker 03: This is the only specific relief that Ms. [00:17:41] Speaker 03: Mukhtar asked for other than attorney's fees. [00:17:44] Speaker 03: The agency gave her what she asked for. [00:17:46] Speaker 03: It set aside the July 2020 decision, and it issued a new decision in May of 2024. [00:17:51] Speaker 03: The purpose of the pleading rules is to give the court and the parties fair notice of the claims, the defenses, and the relief sought. [00:18:02] Speaker 03: Here the prayer for relief sought specific detailed relief. [00:18:06] Speaker 03: Ms. [00:18:07] Speaker 03: Mukhtar does not contend that the district court incorrectly construed the prayer for relief. [00:18:13] Speaker 03: If she had asked for something else or something more or something different, perhaps this would be a different case, but she didn't ask for anything else. [00:18:22] Speaker 04: Go ahead, Judge Carson. [00:18:23] Speaker 02: I think she does. [00:18:25] Speaker 02: I think her position today is that [00:18:28] Speaker 02: The prayer for relief may seem simple, but when it's read as a whole, the petition makes clear that she was seeking more than just a new decision. [00:18:39] Speaker 02: She had grounds that were alleged in the petition to keep the government from just reopening the case or going back and doing the same thing for an impermissible reason. [00:18:55] Speaker 03: She did not ask for that in her prayer for relief. [00:18:57] Speaker 03: She is the master of her petition for relief, and this is a counseled case. [00:19:03] Speaker 03: She could have amended her prayer for relief to ask for this specifically when the government notified her that it was reopening the case in October 2023, but she didn't seek to amend the case, amend her petition for relief. [00:19:18] Speaker 03: Uh, and also, um, uh, she didn't, she never asked for amendment to the district court and on appeal. [00:19:23] Speaker 03: She hasn't asked that in our briefing that the matter be remanded so that she may have the opportunity to amend her petition. [00:19:32] Speaker 04: So, what does the district court does the district court have any. [00:19:37] Speaker 04: How did the district court respond when the government said, we'll reopen? [00:19:43] Speaker 04: Did the district court bless that in any way, or did it just wait until the government said this should be dismissed as moot? [00:19:53] Speaker 03: How did the district court respond? [00:19:55] Speaker 03: The government filed two motions to dismiss. [00:19:58] Speaker 03: The matter was reopened in October of 2023, and then the government filed its first motion to dismiss [00:20:07] Speaker 03: After the after the initial reopening. [00:20:11] Speaker 03: And then, and then it was a motion to dismiss has moved. [00:20:18] Speaker 04: Is that right? [00:20:19] Speaker 03: Well, the first motion to dismiss that the government was filed as soon as the matter was reopened was a motion to dismiss on the grounds that there was no longer a final agency action. [00:20:29] Speaker 03: And this was in November of 2023. [00:20:31] Speaker 03: It's the appendix at pages 73 to 89. [00:20:35] Speaker 03: The district court did not rule on that motion. [00:20:37] Speaker 03: And then in May of 2024, the agency issued its [00:20:42] Speaker 03: its new final decision on Ms. [00:20:44] Speaker 03: Mukhtar's adjustment application and denied the application. [00:20:48] Speaker 03: The government then filed its second motion to dismiss arguing mootness. [00:20:52] Speaker 03: And that is the motion that the district court ruled on. [00:20:56] Speaker 03: The district court did not, there's nothing indicating the district court's view regarding the reopening other than what is presented in the court order. [00:21:06] Speaker 03: And this is the appendix at pages 190 to 196 where the district court explains its views regarding the reopening and it determined that the matter was moot. [00:21:19] Speaker 04: So there's no order by the district court blessing the reopening. [00:21:26] Speaker 03: The court, by granting the government's motion to dismiss, did bless the reopening. [00:21:32] Speaker 04: Yeah, until then though. [00:21:35] Speaker 04: So anytime something's before an agency, [00:21:40] Speaker 04: Your view, I gather, is that the agency could say, okay, this is in court. [00:21:45] Speaker 04: We'd like to reconsider this. [00:21:48] Speaker 04: And by doing so, they destroy the finality, their prior decision. [00:21:55] Speaker 04: And that's something the agency can do without any leave of court. [00:21:59] Speaker 04: Is that your position? [00:22:01] Speaker 03: I'm sorry, without any legal, I didn't hear your last word. [00:22:04] Speaker 04: Any leave of court, any leave of court. [00:22:06] Speaker 03: Oh, yeah. [00:22:08] Speaker 03: Leave of court was not required here for the government to reopen. [00:22:13] Speaker 04: She's saying there's lots of authority from other circuits saying that you do need leave of court to reopen. [00:22:23] Speaker 03: That is not true, Your Honor. [00:22:26] Speaker 03: We cite the Second Circuit's decision [00:22:31] Speaker 03: 6801 Realty in our answer brief. [00:22:36] Speaker 03: And in that case, the Second Circuit indicated that the agency USCIS may on its own reopen a matter and it did not find any issue with that. [00:22:52] Speaker 03: There are several other cases that we also can present to the court, Balakirev versus Jadow. [00:23:00] Speaker 04: Well, rather than your cases, she said she cited cases. [00:23:03] Speaker 04: Do you distinguish the cases? [00:23:06] Speaker 04: Maybe they're not in a brief, but she mentioned it in her argument at least. [00:23:09] Speaker 04: Are you familiar with the cases she's referring to? [00:23:11] Speaker 03: Those cases are distinguishable. [00:23:14] Speaker 03: In those cases, the courts found that the government had failed to follow the process for reopening. [00:23:23] Speaker 03: The RELAX case, R-E-L-X, sets forth a three-part test for reopening. [00:23:28] Speaker 03: And if that if that test is met, then then the courts have found that reopening is not in name only. [00:23:36] Speaker 03: But the court, the cases that Ms. [00:23:39] Speaker 03: Muhtar was relying on are cases where the courts have found that reopening was in name only. [00:23:45] Speaker 03: And as we argued in our answer brief, this was not a case where reopening was in name only. [00:23:52] Speaker 03: First, the agency did follow the applicable regulations in reopening. [00:23:58] Speaker 03: It served notice of reopening. [00:23:59] Speaker 03: It gave a period of time to file a response. [00:24:02] Speaker 03: Secondly, the agency requested new information. [00:24:05] Speaker 03: And particularly, third, it offered a reason for reopening. [00:24:12] Speaker 03: And this is clear from the July 2020 decision that the agency issued where it explained in great detail the deficiencies with Dr. Shah's I-693 medical examination report. [00:24:26] Speaker 03: And the agency identified in the October 2023 reopening, [00:24:31] Speaker 03: what Ms. [00:24:33] Speaker 03: Mutard should do to address those deficiencies so that her application could be considered and if proper would be granted. [00:24:43] Speaker 02: Let me stop for a second. [00:24:46] Speaker 02: Two things with this. [00:24:49] Speaker 02: First off is, do you agree that the regs provide a mechanism for the agency to reach out to the doctor to clarify something or to supplement something if their report is insufficient? [00:25:05] Speaker 03: Yes, here Dr. Shah's report was inconsistent. [00:25:11] Speaker 03: His report from January 2020 was inconsistent. [00:25:16] Speaker 03: There were significant inconsistencies. [00:25:19] Speaker 03: In one sense, the report indicated that Ms. [00:25:23] Speaker 03: Mukhtar had no Class A or Class B conditions. [00:25:26] Speaker 03: And then on the very next page of the report, he indicated that she did have, Dr. Shah did indicated that she did have Class B conditions. [00:25:34] Speaker 02: OK, let me stop you for a minute. [00:25:36] Speaker 02: That wasn't my question exactly. [00:25:39] Speaker 02: My question was, do you have the authority, does the government have the authority to reach out to the doctor directly and not kick it back to the applicants? [00:25:51] Speaker 02: You see what I'm talking about? [00:25:53] Speaker 02: Could the government have just reached out to the doctor and said, hey, there's a lot of problems with this report. [00:25:58] Speaker 02: We need you to clarify X, Y, and Z and send us a new report. [00:26:02] Speaker 02: Could the government have done that? [00:26:05] Speaker 03: I don't have an answer for that right now, Your Honor. [00:26:07] Speaker 03: I would be happy to submit a 28-J letter to the court as soon as possible and give you an answer. [00:26:12] Speaker 03: I would need to consult with agency counsel on this particular issue. [00:26:16] Speaker 03: I don't have an answer right now. [00:26:18] Speaker 02: Okay, my second question has to do with this HCFR 209.1. [00:26:27] Speaker 02: Council pointed this out to us, and it is cited in her brief, and it states in Section C, a refugee seeking adjustment of status under Section 209A of the Act. [00:26:41] Speaker 02: is not required to repeat the medical examination performed under 207.2c unless there were medical grounds of inadmissibility applicable at the time of admission. [00:26:54] Speaker 02: How does that affect your case? [00:26:57] Speaker 03: We submit, Your Honor, that that issue has been waived. [00:27:01] Speaker 03: It was not preserved in the district court. [00:27:05] Speaker 03: It's not part of Ms. [00:27:06] Speaker 03: Mukhtar's prayer for relief in her petition. [00:27:09] Speaker 03: It is not discussed at all in her opposition to the government's first motion to dismiss filed in the district court. [00:27:15] Speaker 03: She mentions 201 [00:27:17] Speaker 03: 209.1C only in her conclusion of her opposition to the government's second motion to dismiss. [00:27:27] Speaker 03: And she didn't properly raise it on appeal here. [00:27:29] Speaker 03: As for her opening brief, 209.1C is not raised in her argument section. [00:27:35] Speaker 03: It's referred to in the factual background, but there's no developed argument about section 209.1C in her opening brief. [00:27:42] Speaker 03: And she cannot raise it for the first time substantively in the argument section of her reply. [00:27:47] Speaker 03: This court has held numerous times that a party does not preserve an issue merely by presenting it to the district court in a vague and ambiguous manner, or by making a fleeting contention before the district court. [00:27:58] Speaker 03: That's this court's decision, Geo-Metwatch Corp versus Hooneman, 38F41183. [00:28:07] Speaker 03: At 1206 10 circuit 2022 similarly this court in. [00:28:12] Speaker 03: In Ray runs the land company state stated that a party cannot preserve an argument for appeal by raising it in the district court in a perfunctory and underdeveloped manner. [00:28:23] Speaker 03: The site for runs is 944 F 3rd 1259. [00:28:26] Speaker 03: At page 1271 and that's 10 circuit 2019. [00:28:30] Speaker 03: Here, Ms. [00:28:32] Speaker 03: Mukhtar has raised the issue of Section 209.1C in only a fleeting or perfunctory manner. [00:28:40] Speaker 03: She did not preserve this issue, and therefore this court need not address it. [00:28:47] Speaker 01: Mr. Johnson, let me ask you a question. [00:28:51] Speaker 01: Do you rely heavily, I think, on paragraph 90 of the petition where she asked for the decision [00:28:58] Speaker 01: to be set aside. [00:29:00] Speaker 01: And you say, well, it was set aside. [00:29:04] Speaker 01: But you're arguing apples and oranges between the two sides. [00:29:09] Speaker 01: She, of course, is arguing that, well, it needed to be set aside because the government was asking for improper information. [00:29:18] Speaker 01: They had no right [00:29:20] Speaker 01: to ask for, to submit additional questionnaires that that issue had been determined and needed to issue a new decision without asking for additional medical information. [00:29:37] Speaker 01: And you argue obviously that there was ambiguity in the medical information that was provided. [00:29:43] Speaker 01: And so then the decision is set aside [00:29:46] Speaker 01: Well, why is it moot if it was set aside for reasons that were unrelated to the substance of her argument, that ordinarily your argument would have a lot of appeal, that there's a due decision, that she has a right to challenge that. [00:30:05] Speaker 01: But in effect, that's the same argument that she had presented all along in this particular case. [00:30:13] Speaker 01: Why is it moot if the agency never addressed the substance of her argument, and she has to simply re-urge the same argument with regard to the new decision? [00:30:25] Speaker 03: It's not moot, Your Honor, because the inconsistencies in Dr. Shah's I-693 from January of 2020 [00:30:37] Speaker 03: were such that the agency was of the view that if the matter was reopened and those inconsistencies could be addressed, that then the agency could take a fair shot at the application and adjudicate it. [00:30:55] Speaker 03: But in submitting, in reopening, the agency asked for a new I-693, but Ms. [00:31:04] Speaker 03: Mukhtar did not provide one. [00:31:06] Speaker 03: And so then in May of 2024, the agency denied the application after reopening based on the failure to respond to the I-693. [00:31:16] Speaker 03: Ms. [00:31:16] Speaker 03: Mukhtar was given 87 days to respond to the I-693 [00:31:22] Speaker 03: to provide an I-693, I apologize, but never provided one. [00:31:27] Speaker 01: But if we were to credit her argument that she didn't do anything wrong by not submitting a new report, her whole argument was that she was never obligated to submit that medical information, right? [00:31:44] Speaker 03: She had an obligation to [00:31:49] Speaker 03: Demonstrate admissibility to the United States under 8 USC. [00:31:56] Speaker 03: Section 1159 a 2 in the agency in adjudicating an application for adjustment of status of a refugee. [00:32:08] Speaker 03: states that the alien, the immigrant must show admissibility at the time of her request for adjustment of status. [00:32:17] Speaker 03: So the agency was simply following the statute at USC 1159A2. [00:32:23] Speaker 03: And I note that my time is over, Your Honor. [00:32:28] Speaker 04: Go ahead and answer. [00:32:30] Speaker 04: Just don't wander. [00:32:31] Speaker 03: Thank you. [00:32:34] Speaker 03: If this if this is if this issue had been properly before the district court, the issue of 8 CFR 209.1 C. And if the and and Miss Muktar had presented it to the district court and the district court could have addressed it. [00:32:48] Speaker 03: This this would be a different story, but it wasn't. [00:32:51] Speaker 03: It was not addressed and so we submit the issue. [00:32:54] Speaker 03: It's been has been waived and this court should affirm the decision of the district court and. [00:33:00] Speaker 03: And. [00:33:03] Speaker 03: Unless the court has any other questions, I would ask for affirmance. [00:33:07] Speaker 04: Thank you counsel. [00:33:08] Speaker 04: Thank you both counsel. [00:33:10] Speaker 04: Thank you. [00:33:11] Speaker 04: Case is submitted and counselor excused.