[00:00:00] Speaker 01:
We'll call our final case, case number 25-4067, Ahmad versus Noam.

[00:00:09] Speaker 01:
Counsel, go ahead.

[00:00:11] Speaker 02:
Yes, your honor.

[00:00:12] Speaker 02:
May it please the court.

[00:00:13] Speaker 02:
My name is Aaron Pantheni, counsel for Appellants Khalid Ahmad and Marin Kurgay.

[00:00:18] Speaker 02:
We would like to reserve three minutes of rebuttal time.

[00:00:22] Speaker 02:
This appeal involves the question of whether a federal agency, USCIS, can insulate from review the persecution determination under 8 USC section 1182E or whether it falls under the bar of 8 USC section 1252A2B2 or section two.

[00:00:43] Speaker 02:
The district court aired when it misapplied the Supreme Court's decision in Patel versus Garland, a section one case to section two.

[00:00:53] Speaker 02:
which is now firmly not the law under this court's decision in Mukantagara versus Nome of last week.

[00:00:59] Speaker 02:
We also note that the district court erred in not applying the reasoning and holding of the Supreme Court's Kukana versus Holder decision or to consider its persuasive authority in Wilkinson versus Garland.

[00:01:12] Speaker 04:
So what is left of this case after Mukantagara?

[00:01:15] Speaker 02:
Yes, Your Honor.

[00:01:16] Speaker 02:
So to apply the plain language of Section 2 and to comply with Kukana versus Holder, and now this Court's recent holding in Mukantagar versus Noem, this is a statute by statute issue.

[00:01:27] Speaker 02:
So today, the issue is whether Section 1182e, the first step, persecution determination, is a non-discretionary threshold eligibility step, which would be reviewable despite Section 2.

[00:01:39] Speaker 04:
And so is it your view that we need to decide that question?

[00:01:44] Speaker 04:
That's the question here, whether that is, in fact, a non-discretionary determination, that first step determination.

[00:01:52] Speaker 02:
Correct, Your Honor.

[00:01:53] Speaker 02:
And additionally, even though, as we'll get to, the court did comment in Mukantagara on the word determined in that statute, but we'll have to compare and apply it to Section 1182E.

[00:02:05] Speaker 04:
So if I understand your position, Mukantagara is our circuit's precedent about what we do with Patel in light of Section 2?

[00:02:15] Speaker 02:
Yes, Your Honor.

[00:02:17] Speaker 04:
But now, going statute by statute, we still need to determine if the statute at issue has steps and if the threshold step is a non-discretionary step, correct?

[00:02:32] Speaker 04:
Correct, Your Honor.

[00:02:33] Speaker 04:
Is it your view that non-discretionary means mandatory?

[00:02:38] Speaker 04:
That in other words, an eligibility determination has to be made, therefore it is non-discretionary?

[00:02:45] Speaker 02:
Yes, Your Honor, that is the position we take.

[00:02:48] Speaker 04:
And what support is there for that position?

[00:02:52] Speaker 04:
Did Mukantagara say that?

[00:02:55] Speaker 02:
Mukantagara did say that, Your Honor.

[00:02:57] Speaker 02:
It said that a predicate threshold eligibility decision is categorically non-discretionary, and therefore a district court would be able to review it.

[00:03:08] Speaker 02:
In that case, they then analyze the statute issue 1157C4 to determine whether it was a threshold eligibility determination.

[00:03:16] Speaker 04:
But what I'm struggling with is 1157C4, the statute that was at issue there, has this sort of binary quality to it.

[00:03:25] Speaker 04:
You either satisfy the definition or you don't, and it's by reference to statutory criteria.

[00:03:32] Speaker 04:
Here, we have none of that.

[00:03:35] Speaker 04:
We have a persecution determination that in the text of the statute is totally unconnected to any determination.

[00:03:46] Speaker 04:
We have the manual.

[00:03:47] Speaker 04:
We have the USCIS policy manual.

[00:03:50] Speaker 04:
But in the text of the statute itself, it seems

[00:03:53] Speaker 04:
more discretionary in terms of what it requires than the statute at issue in Mukantigara.

[00:04:01] Speaker 04:
And I guess I want to get your reaction to something.

[00:04:03] Speaker 04:
None of what I said just matters at all if Mukantigara is correctly read to say any predicate eligibility determination that is mandatory is inherently non-discretionary.

[00:04:17] Speaker 02:
I see where you're coming from, Your Honor.

[00:04:19] Speaker 02:
And let me take a step back.

[00:04:21] Speaker 02:
That is what I believe that Mukantagara does say.

[00:04:24] Speaker 02:
However, as we argued in briefing, Kukana versus Holder and the plain reading of Section 2 requires that every statute must be analyzed for specified discretion.

[00:04:36] Speaker 02:
And we argue that we should apply Wilkinson versus Garland to analyze each specific step of a statute, whether that be two or whether that be three or more.

[00:04:45] Speaker 02:
In our case, we have a fairly unique statute in that Section 1182E creates this three-step process injecting a second agency in the process as well.

[00:04:55] Speaker 02:
So that is definitely why we benefit or the court would benefit from oral argument today.

[00:05:00] Speaker 02:
So we would say that we still have to look at the specified discretionary language within the statute itself.

[00:05:07] Speaker 02:
So tell us your three-step process here.

[00:05:11] Speaker 03:
But even if it's discretionary,

[00:05:15] Speaker 03:
we have to determine whether, as Judge Rossman is saying, that there's a standard we can measure.

[00:05:23] Speaker 03:
I mean, even if it's mandatory, I'm sorry, there's a standard that we can measure the decision again for purposes of review.

[00:05:32] Speaker 03:
And now, I'm sorry, you can tell us our three-step process.

[00:05:37] Speaker 02:
Yes, Your Honor.

[00:05:37] Speaker 02:
And to answer Judge Carson's question, the three-step process, as dictated by the statute itself, is first, this mandatory determination after he has determined referring to the Secretary of Homeland Security in our instance.

[00:05:52] Speaker 02:
And once it makes that determination, it then must pass the waiver application over to the State Department for its recommendation.

[00:05:59] Speaker 02:
And under regulation, the State Department is required to review program policy and foreign relations aspects of the case.

[00:06:05] Speaker 02:
Once that has been completed, and if the State Department has made a favorable recommendation, it will then be passed back to USCIS, where it must make a finding of whether it is in the US public interest to grant a waiver.

[00:06:19] Speaker 02:
And once it does that, then and only then can it exercise its ultimate discretionary authority to grant or to deny the waiver.

[00:06:27] Speaker 01:
So the way this works, if this was passed on, I mean, there's been a step one determination, right?

[00:06:32] Speaker 01:
And your complaint is, oh, this had to go up to this, I'll call it an appellate body for them to make a decision.

[00:06:41] Speaker 01:
And if they recommend against your client, then there's no discretion.

[00:06:47] Speaker 01:
He loses, right?

[00:06:49] Speaker 02:
Your Honor, that is not, so to answer your question, yes.

[00:06:54] Speaker 02:
Under the statute, if there is a not favorable recommendation, then the authority is stripped from USCIS ultimately to grant the application.

[00:07:02] Speaker 02:
That is not the procedural posture that our case is in.

[00:07:04] Speaker 02:
Our case is from a non-finding of persecution.

[00:07:06] Speaker 02:
So then the application was denied on those grounds.

[00:07:09] Speaker 02:
So today we are here to discuss whether that decision itself is reviewable by the district court.

[00:07:15] Speaker 02:
So hold on a second.

[00:07:18] Speaker 01:
Yes, I'm just I'm just thinking this through so you have you have an administrative remedy that has not been taken advantage of yet.

[00:07:26] Speaker 02:
So if you're asking about exhaustive right, you could have asked for for for the next step review.

[00:07:31] Speaker 02:
Your honor.

[00:07:33] Speaker 02:
So that was an optional appeal and under Darby versus says narrow Supreme Court case.

[00:07:39] Speaker 02:
It either requires that the statute itself mandates an appeal or if there's a regulation on point that regulation has to stay the decision while it is an appeal and that is not the case with the regulations of bar here.

[00:07:52] Speaker 02:
It is an optional appeal, as noted in the denial decision itself by the agency, and we do not therefore have to exhaust that.

[00:08:00] Speaker 01:
Okay, fair enough.

[00:08:01] Speaker 01:
I guess what I'm getting at is we're not going to hear at some later date that there still can't be anything done because you get to appeal to the next level.

[00:08:16] Speaker 02:
That is an interesting point, Your Honor.

[00:08:18] Speaker 02:
That is something that maybe procedurally could be taken advantage of.

[00:08:21] Speaker 02:
So let's say that this does go back down to the district court on remand.

[00:08:25] Speaker 02:
It then also decides that it's going to remand the decision to the agency for further reconsideration.

[00:08:30] Speaker 02:
And if at that time it then decides that it is going to still issue a denial, and then we would be able to potentially take advantage of the optional administrative appeal at that point.

[00:08:43] Speaker 02:
Or we could, you know,

[00:08:46] Speaker 02:
potentially exhaust other options.

[00:08:47] Speaker 01:
OK, so it's so your position is it's optional to you, but mandatory to the government.

[00:08:52] Speaker 01:
If you want to take it up to the next level, they have to hear it.

[00:08:56] Speaker 01:
But you don't have to take it up and you can go back to the district court if you wanted to.

[00:09:01] Speaker 02:
I would disagree with that statement, Your Honor.

[00:09:03] Speaker 02:
They don't necessarily have to take up.

[00:09:04] Speaker 02:
It's not a mandatory acceptance of the appeal.

[00:09:06] Speaker 02:
They have the discretionary authority.

[00:09:08] Speaker 02:
The Administrative Appeals Office under USCIS can decide not to hear the appeal.

[00:09:12] Speaker 01:
OK, fair enough.

[00:09:14] Speaker 02:
Go ahead.

[00:09:15] Speaker 02:
OK, so the analysis was absent in the district court.

[00:09:19] Speaker 02:
The district court did not look with fine detail at Section 1128 itself, which is why we're discussing it here today.

[00:09:27] Speaker 02:
And I would like to reiterate that under Kukana versus Holder, there must be a clear and convincing evidence standard that Congress applied discretion at this step.

[00:09:37] Speaker 02:
And as we've discussed already, there is a textual dichotomy here.

[00:09:41] Speaker 02:
and that there is a phraseology that we'll talk about.

[00:09:44] Speaker 02:
This has determined that has a mandatory connotation.

[00:09:47] Speaker 02:
And then step three, the discretionary grant, the phrase may waive.

[00:09:51] Speaker 02:
And then the placement of the State Department at the second step really also kind of further limits this ultimate discretionary grant, as Judge Carson was pointing out.

[00:10:01] Speaker 04:
So can you back up to the, at issue before us is the first step eligibility determination, right?

[00:10:07] Speaker 02:
Yes, Your Honor.

[00:10:08] Speaker 04:
Mukantagara has cleared the way where we don't have to interrogate the Patel Section 2 question.

[00:10:14] Speaker 04:
Agree?

[00:10:15] Speaker 04:
So does the fact that in your case the first step is mandatory, meaning you can't go to Step 2 and 3 unless you have an eligibility determination, in that sense it is mandatory, does that mean it is non-discretionary for purposes of judicial review?

[00:10:33] Speaker 02:
That is one of the pieces that we would argue.

[00:10:35] Speaker 02:
Yes, the fact that it is a mandatory determination is one piece that points towards it being non discretionary.

[00:10:41] Speaker 04:
Okay, so, so, but Matt so mandatory, you're saying is co extensive with non discretionary, or are you saying mandatory is one.

[00:10:50] Speaker 04:
data point in determining whether the first step eligibility determination is non-discretionary.

[00:10:55] Speaker 02:
Yes, Your Honor.

[00:10:56] Speaker 02:
So it is one data point.

[00:10:57] Speaker 02:
It is not the end-all and be-all question, at least the way that we are positioned.

[00:11:03] Speaker 02:
You'd also have to look for the language of the statute itself.

[00:11:07] Speaker 04:
Okay, so this is very helpful.

[00:11:09] Speaker 04:
So if you can walk me through why the first step of your statute, contra the first step of perhaps Mukantagara's statute, why is the first step of this statute non-discretionary when the persecution determination that it compels to be made at the first step

[00:11:34] Speaker 04:
is not guided by any criteria at all.

[00:11:39] Speaker 02:
Oh, so your honor, just to clarify, you're asking why is there no statutory criteria for what is persecution in this statute?

[00:11:46] Speaker 04:
The eligibility determination at the first step requires a finding of persecution on account of, right?

[00:11:56] Speaker 04:
And my question is that determination, there's no reference to any statutory criteria for determining when an applicant demonstrates persecution.

[00:12:08] Speaker 04:
And how can we say that in the absence of that statutory criteria, you have

[00:12:14] Speaker 04:
Anything but a discretionary determination as opposed to a non discretionary determination.

[00:12:21] Speaker 02:
As you're going without your honor.

[00:12:25] Speaker 02:
So I'm so sorry, can you rephrase briefly.

[00:12:28] Speaker 04:
My concern is that if you agree.

[00:12:32] Speaker 04:
that just because it's a mandatory first step, that doesn't mean it's non-discretionary.

[00:12:35] Speaker 04:
That might be one data point along the way.

[00:12:37] Speaker 04:
We really have to look at what the heck is going on at the first step.

[00:12:41] Speaker 04:
And here at the first step, the mandatory eligibility determination, DHS is deciding whether your client would be subject to persecution.

[00:12:52] Speaker 04:
That determination is not guided by reference to any statutory criteria.

[00:12:56] Speaker 04:
When I see that, I'm thinking that's a pretty discretionary determination.

[00:13:02] Speaker 02:
Your Honor, let me compare this to the statute issue in Mukantagar.

[00:13:05] Speaker 02:
So 1157C4, right?

[00:13:07] Speaker 02:
There is a cross citation in that statute.

[00:13:09] Speaker 02:
It says, go look at USC 1101A42 for the definition of refugee.

[00:13:14] Speaker 02:
If you look at that statute, that also has a requirement that the agency should review whether the person would face persecution in their home country.

[00:13:22] Speaker 02:
And there is no further cross citation to that.

[00:13:25] Speaker 02:
It's because persecution is defined mainly by administrative and federal case law.

[00:13:29] Speaker 02:
So it's going to be a case-by-case analysis.

[00:13:33] Speaker 02:
But it's still a legal determination in a way.

[00:13:38] Speaker 02:
There are facts, and there's also the law.

[00:13:40] Speaker 02:
So if you're asking whether a district court would be able to evaluate what is persecution in this J-1 waiver context, that is something that a district court is well-equipped to do.

[00:13:50] Speaker 02:
And it would be able to review the agency's action to determine whether it was arbitrary and capricious.

[00:13:57] Speaker 04:
By reference to what standard?

[00:14:00] Speaker 02:
Your Honor, this would be, again, up to the district court to decide what the standard is.

[00:14:04] Speaker 02:
We argue that is the well-founded fear standard, because this was originally adopted in the 1970 amendment.

[00:14:11] Speaker 02:
And then later, there was the 1980 amendment that brought asylum law into US immigration, the INA.

[00:14:16] Speaker 02:
And we argue that that is then adapted.

[00:14:20] Speaker 02:
This waiver, this prescription waiver as well, is it encapsulated into the well-founded fear standard.

[00:14:26] Speaker 02:
That's something we would argue before the district court.

[00:14:28] Speaker 02:
It's not necessary to decide in this appeal today.

[00:14:31] Speaker 02:
It's purely based on whether Section 2 strips jurisdiction or not.

[00:14:35] Speaker 02:
And I see that my time is elapsing.

[00:14:38] Speaker 02:
And could I briefly conclude and reserve some time for rebuttal still?

[00:14:42] Speaker 02:
Go ahead and we'll let you know on the rebuttal.

[00:14:44] Speaker 02:
Go ahead and finish that.

[00:14:45] Speaker 02:
Okay, thank you, Your Honor.

[00:14:47] Speaker 02:
So to briefly conclude, the court failed to apply the Kukanan Green Standard.

[00:14:53] Speaker 02:
Mukantagar now applies, which provides a clear jurisdictional pathway potentially for Mr. Ahmad to seek review of his waiver application, the threshold eligibility requirement.

[00:15:04] Speaker 02:
Determination is a nondiscretionary act, as we defined with various dictionary definitions.

[00:15:09] Speaker 02:
We can compare it to Mukantagar, as we did in our 28-J letter.

[00:15:11] Speaker 02:
And then, as well, this injury is redressable, as the remedy of APA, vacater and remand from the district court, would provide an opportunity to resolve the discrete injury of this non-finding of persecution at the agency.

[00:15:24] Speaker 02:
And we request that this court vacate and remand to the district court for further reconsideration.

[00:15:28] Speaker 01:
OK, just so I'm clear, the ultimate remand you're asking for is send it back

[00:15:33] Speaker 01:
Make them make a determination.

[00:15:36] Speaker 02:
Ultimately, yes.

[00:15:38] Speaker 02:
Would the interviewing step of the district court have to agree on the arbitrary and capricious standard?

[00:15:44] Speaker 01:
Got it.

[00:15:44] Speaker 01:
Fair enough.

[00:15:45] Speaker 01:
Thank you, Your Honor.

[00:15:50] Speaker 01:
Thanks.

[00:15:50] Speaker 01:
Go ahead.

[00:15:51] Speaker 00:
Good afternoon, Your Honors.

[00:15:52] Speaker 00:
David Boerle on behalf of the government.

[00:15:54] Speaker 00:
It's a pleasure to be in this court today.

[00:15:56] Speaker 00:
It's my first time, and I'm wishing Judge McHugh a speed of recovery.

[00:15:59] Speaker 00:
So I think Judge Rossman correctly identified what the issue is here, which is whether there is anything left for the court to do after Mukandagara.

[00:16:07] Speaker 00:
So we're looking at whether Mukandagara necessarily dictates the outcome of this appeal, whether the district court can still be affirmed, even if the reasoning that was issued in the district court can still probably would be difficult to reconcile with what Mukandagara said.

[00:16:21] Speaker 00:
And I think the discussion that Your Honor was having with the opposing counsel is a really good one, and it's the point that the government was going to raise today.

[00:16:28] Speaker 00:
which is that we don't read Mukantigara to blow the doors off of what 1252A2B2 is supposed to do.

[00:16:34] Speaker 00:
So what Mukantigara was looking at in the context of that case is whether a revocation because the plaintiffs did not meet the definition of a refugee was reviewable for that first part of it, whether they met the definition of refugee.

[00:16:49] Speaker 00:
And if Mukantigara, if I understand that record correctly,

[00:16:53] Speaker 00:
was looking at whether Mukendigara was disqualified under the persecutor bar for refugee status.

[00:16:58] Speaker 00:
And that's more or less consistent with what Mejia, which the Mukendigara court found persuasive.

[00:17:05] Speaker 00:
It's a backward looking determination at a course of conduct.

[00:17:09] Speaker 00:
When instead the decision about whether somebody would be subject to persecution or whether somebody cannot return to the country because they would be subject to persecution.

[00:17:18] Speaker 00:
I think that's analogous to a lot of what this court has said in the withholding of removal context under 1229B and 1252A2B1, which generally the trend that the court's cases have followed is that whenever there's sort of a predictive reasoning, whenever there's a predictive guess at whether somebody would be subject to persecution or whether somebody's removal would cause exceptional

[00:17:41] Speaker 00:
That's the kind of decision that the court has still found discretionary, even if it's not phrased in purely and explicitly discretionary language.

[00:17:51] Speaker 00:
And I think that comports with what this court has held in Hamilton, Vanden,

[00:17:57] Speaker 00:
And green.

[00:17:59] Speaker 00:
So, yes, the government's position is that even if the first step decision here is phrased in non discretionary terms, it still provides the agency discretion to evaluate the evidence and exercises discretionary guesswork for whether.

[00:18:15] Speaker 04:
So mandatory doesn't mean non-discretionary in the government's view.

[00:18:18] Speaker 00:
So not in terms of the way Mukhandagara was decided.

[00:18:22] Speaker 00:
So I think what Mukhandagara requires is that the first step be mandatory one and also non-discretionary at the same time.

[00:18:29] Speaker 00:
So I think there might be a little bit of confusion in the way that Mukhandagara is parsed because it uses the word non-discretionary to refer to both a non-discretionary determination that happens at a mandatory step one and then also the step one happening at all being non-discretionary.

[00:18:44] Speaker 04:
Because it would be, is it the government's?

[00:18:46] Speaker 04:
Well, I'll tell you what I think.

[00:18:47] Speaker 04:
You tell me your reaction.

[00:18:49] Speaker 04:
I mean, it seems that it would be the most consistent reading of subsection two, the most consistent textual reading of subsection two, which requires us to look at the action or decision to interrogate that, right?

[00:19:00] Speaker 04:
So in other words, if Mukantagar says, if it's an eligibility determination that's mandatory, that's not a complete sentence.

[00:19:07] Speaker 04:
We have to continue to look at what actually is happening.

[00:19:10] Speaker 04:
What is the decision maker doing?

[00:19:12] Speaker 04:
in making that initial determination that is mandatory, the eligibility determination, and if discretion inheres in that, in the way that you're describing, that that still could potentially be non-reviewable.

[00:19:24] Speaker 04:
Is that the government's position?

[00:19:26] Speaker 00:
So the government's position is that we agree with the ultimate point, that if there's some part of the first step, the mandatory first step, if that is still discretionary, at least in some part, that Mukandagara doesn't require that decision to be reviewable.

[00:19:39] Speaker 00:
I think the government's primary position would be that Zia and Fofana

[00:19:42] Speaker 00:
We agree, I think, with the ultimate conclusion that if the first step is taking Mukhandigara as it is and assuming that there's no further review of Mukhandigara, that we don't think that Mukhandigara

[00:19:58] Speaker 00:
necessarily opens the door to courts sort of salami slicing each sort of level of decision making and then to if there's if the first step is mandatory but still discretionary, I don't think Mukhandagara still opens the door to review of that decision because 1252A2B2 forbids review.

[00:20:17] Speaker 00:
It doesn't sort of it doesn't narrow the remedy

[00:20:21] Speaker 00:
… to only not setting aside discretionary outcomes, if the court tracks sort of my reasoning here.

[00:20:28] Speaker 03:
Well, and I'm trying to understand what you're saying.

[00:20:30] Speaker 03:
Are you saying that because here I know that Judge Rossman focused on that in McContaggara there was a statutory definition of refugee…

[00:20:42] Speaker 03:
Whereas here we're relying on law of persecution that's developed by the Supreme Court and thousands of cases.

[00:20:55] Speaker 03:
Are you saying that has to be a statutory law or not to have a mandatory requirement that's somehow discretionary?

[00:21:07] Speaker 00:
Well, I think if we take Mukantagara as it's written, there is a statutory definition in place in the circumstances that Mukantagara was decided under.

[00:21:17] Speaker 00:
I don't know if Mukantagara can necessarily be extended to a circumstance where there is no such equivalent.

[00:21:23] Speaker 00:
Well, there's not.

[00:21:24] Speaker 03:
Mukantagara doesn't speak to that.

[00:21:28] Speaker 03:
You know, you look at the definition of a refugee and incorporates persecution.

[00:21:34] Speaker 03:
And so in the refugee statute, you'd still be looking at the case law of what is persecution.

[00:21:43] Speaker 03:
So I guess the question, you know, if we look at before and and the Supreme Court's talking about where, you know, there's no it's, you know, in your discretion or what you deem to be good cause, all of that.

[00:22:01] Speaker 03:
Clearly, there's no defined legal standard to apply the facts to.

[00:22:07] Speaker 03:
Right.

[00:22:08] Speaker 03:
But here we do have thousands of cases that set up a legal standard for persecution, which I think it's the Wealth and Founded Fear standard.

[00:22:23] Speaker 03:
Why isn't that enough to say that we could review this?

[00:22:28] Speaker 03:
They have to make a decision at the first step, and we've got a legal standard

[00:22:34] Speaker 03:
Isn't this what we do all the time when we review a decision applying the facts to the law?

[00:22:44] Speaker 00:
So, Your Honor, I think that there's a couple points there that I'd like to respond to.

[00:22:48] Speaker 00:
One, the asylum standard is not the same standard as somebody who would be subject to persecution under 1182E.

[00:22:55] Speaker 00:
So when we're looking at asylum, what the standard is for asylum is that somebody is unwilling to return because of a well-founded fear of persecution, whereas the statute here says that the person cannot return because they would be subject to persecution on account of race, religion, or political position.

[00:23:13] Speaker 00:
So we don't have the standards here are not congruent.

[00:23:17] Speaker 00:
What this statute requires is not to assess whether somebody has a credible fear at the present time.

[00:23:21] Speaker 00:
It requires us to gauge a predictive guesswork as to whether somebody cannot return, meaning no internal relocation, etc, etc.

[00:23:29] Speaker 00:
or that they would be subject to persecution on the grounds of race, religion, or nationality.

[00:23:35] Speaker 00:
It's not assessing somebody's credible fear at this point in time.

[00:23:39] Speaker 00:
So the standards are different.

[00:23:41] Speaker 03:
It's a different standard, I agree.

[00:23:44] Speaker 03:
But it's still something we do all the time, which is we determine whether there was an application of the facts to the law that was correct.

[00:23:58] Speaker 03:
So I mean, I don't get that there's no standard here to review what is a mandatory decision at the first step.

[00:24:09] Speaker 00:
So the government doesn't agree that even though it's phrased in sort of language that could seem nondiscretionary, that it still excludes the possibility that there's still discretion involved in the decision.

[00:24:23] Speaker 00:
And I'll point to a couple of cases that this court has decided, which is Perales.

[00:24:26] Speaker 00:
That looks at whether somebody's level of cruelty extended from regular cruelty to extreme cruelty.

[00:24:34] Speaker 00:
There's also there's also Morales Ventura versus Ashcroft from the 10th Circuit in 2003, whether somebody's removal result in exceptional and extremely unusual hardship to the aliens.

[00:24:47] Speaker 00:
US citizen or LPR spouse, citizen or parent.

[00:24:51] Speaker 00:
Those are, even though that they're not phrased in terms of, hey, this is in the government's discretion, it still requires some predictive guesswork on the part of USCIS that looks at the evidence as submitted and then the USCIS exercises some level of discretion in determining whether the evidence is sufficient to demonstrate that the hardship that it would cause on the spouse, citizen,

[00:25:14] Speaker 00:
that the citizen spouse child or parent left behind would be exceptional and extremely extremely hard and Sorry, I'm butchering that the exact phraseology, but it's

[00:25:28] Speaker 00:
exceptional hardship, essentially.

[00:25:30] Speaker 00:
Hardships that, the line drawing between what is a hardship and what is an exceptional hardship still involves some line drawing by the agency.

[00:25:38] Speaker 00:
And so we would say that the, that Mukant Agar doesn't allow for review for first step, even though the first step may be mandatory, decisions that are made within the context of that mandatory first step that still involve some level of discretion.

[00:25:51] Speaker 00:
I think that's the way that,

[00:25:53] Speaker 00:
that reading Mukantagara consistent with the court's prior precedents in Green, Hamilton, and Van Dinn, how that is properly read.

[00:26:01] Speaker 00:
We don't read Mukantagara, at least at this point, to blow the doors off of 1252A2B2 and allow for review whenever somebody claims that, hey, I don't like the outcome.

[00:26:11] Speaker 00:
This must mean, necessarily, that there was some error in procedure, some error in legal applicability, or some abuse of discretion in evaluating and applying

[00:26:21] Speaker 00:
the evidence to the to the legal standard.

[00:26:25] Speaker 01:
So what if we give it to you that it's discretionary that the determination of whether he would be subject to persecution in the future if he was required to stay for two years of his home country was discretionary and not reviewable is is is a non finding at where there's no finding at all.

[00:26:45] Speaker 01:
I mean, does that make any difference?

[00:26:47] Speaker 01:
Can the government just decide not to decide it and deny it?

[00:26:52] Speaker 00:
So if somebody is denied in the end an 1182e waiver, that could be for any number of reasons.

[00:26:58] Speaker 00:
I'm specifically thinking of four.

[00:26:59] Speaker 00:
One, that there was no finding of persecution.

[00:27:01] Speaker 00:
Two, that there was a finding of persecution, but the State Department ultimately decided not to end up recommending it favorably.

[00:27:08] Speaker 00:
Or three, ultimately, at the end of the day, USCIS decides to deny it as a matter of discretion.

[00:27:13] Speaker 00:
So those are really the main three possibilities.

[00:27:17] Speaker 03:
But the second two aren't before us.

[00:27:19] Speaker 03:
We're not looking at that.

[00:27:20] Speaker 03:
We're just looking at step one, right?

[00:27:24] Speaker 03:
I mean, he could be entitled to review of the decision on step one and still lose under step two or three.

[00:27:36] Speaker 00:
So first, I'll point out that, again, the step one determination here does involve some level of discretion, because if we look at this court's cases, whenever it involves sort of predictive guesswork, that still entails some level of discretion on behalf of the agency.

[00:27:50] Speaker 00:
Two, I would say that the decision, I would point out that the decision in this case says that the USA has also decided not to recommend favorably this case, and that they also,

[00:28:01] Speaker 00:
found that that that persecution had not been established.

[00:28:06] Speaker 00:
And that's they never went to step two.

[00:28:09] Speaker 03:
Did they?

[00:28:09] Speaker 03:
They never went to step two here.

[00:28:12] Speaker 03:
So there was a decision that there was no no risk of persecution.

[00:28:17] Speaker 03:
No.

[00:28:19] Speaker 03:
Right.

[00:28:20] Speaker 03:
So we never got a step two or three here.

[00:28:24] Speaker 00:
And also, you assess would not recommend favorably the application.

[00:28:28] Speaker 03:
So we don't know what they would do.

[00:28:31] Speaker 00:
Well, your honor, respectfully, I'll point to page 10 of appendix volume two in that second last paragraph where it says that us as that the I'll I do have the exact language here so I'll just go ahead and quote it.

[00:28:46] Speaker 00:
At appendix volume two at page 10, you have not met your burden in demonstrating that a favorable recommendation of this application by USCIS on the basis of exceptional hardship or persecution should be forwarded to the U.S.

[00:28:58] Speaker 00:
Department of State.

[00:28:59] Speaker 00:
So I do think that there's still some level of discretion in there in that first step, sort of eligibility determination.

[00:29:08] Speaker 00:
If we want to call it an eligibility determination, there's still some discretion in there.

[00:29:12] Speaker 00:
And I don't think you said step one, you didn't show

[00:29:16] Speaker 03:
the persecution prong, and so as a result, we're not passing it on.

[00:29:22] Speaker 03:
I mean, it never got to step two.

[00:29:27] Speaker 00:
So I think it's correct to say that this case, I don't think there's any dispute that the application was not forward to the US Department of State for a recommendation up or down either way on their side.

[00:29:38] Speaker 00:
But USAs did exercise some discretion here in deciding not to recommend it favorably.

[00:29:44] Speaker 03:
So they made a determination that he, uh, they determined that the alien can return, um, without fear of prosecution, right?

[00:29:56] Speaker 03:
Without being persecuted.

[00:29:58] Speaker 03:
Um, and thus you don't pass it on.

[00:30:04] Speaker 03:
So I have a favorable decision at step one to even get it to step two, right?

[00:30:12] Speaker 00:
Yes, I think that's correct, Your Honor.

[00:30:13] Speaker 00:
But I'll also point out that this is a good kind of segue into why that new kindergarten needs to be read consistently with Hamilton and Green.

[00:30:21] Speaker 00:
Because in those cases, what you had underlying the good and sufficient cause for visa revocation was not necessarily purely discretionary either.

[00:30:28] Speaker 00:
Those turned on legal questions.

[00:30:29] Speaker 00:
And the courts decided that it couldn't review good and sufficient cause, even if that good and sufficient cause was based on a legal determination.

[00:30:37] Speaker 00:
So I see I'm going to run out of time here.

[00:30:41] Speaker 04:
Actually, I have one more question, if that's all right.

[00:30:43] Speaker 04:
Go ahead.

[00:30:44] Speaker 04:
Can you say a little bit more about this predictive guesswork standard that you were describing?

[00:30:49] Speaker 04:
Where I'm really struggling is it seems all agree that just because eligibility determination is mandatory, that alone doesn't mean that it is non-discretionary, at least today.

[00:31:00] Speaker 04:
That is sort of my take on the common understanding.

[00:31:04] Speaker 04:
So then we have to determine whether that eligibility determination is nondiscretionary or requires the exercise of discretion.

[00:31:13] Speaker 04:
In Mukantigara, we had some statutory criteria guiding the exercise of discretion, which ultimately then incorporated, as Judge McHugh explained, the persecution standard that is also relevant.

[00:31:25] Speaker 04:
So if there's statutory criteria guiding the determination, maybe that's over here as more non-discretionary.

[00:31:34] Speaker 04:
If there's no statutory criteria guiding, I don't know, maybe it's over here.

[00:31:38] Speaker 04:
But you're saying if predictive guesswork is required, that means that it's more discretionary than non-discretionary.

[00:31:46] Speaker 00:
I think that's a pattern of the court's cases that has been followed generally.

[00:31:50] Speaker 00:
So if you look at Morales Ventura and if you look at Perales, both of those looked at whether somebody's, well, Perales was backward looking, but if you look at Morales Ventura, whether somebody's removal would cause extreme and exceptional hardship to somebody left behind, that is a predictive guesswork sort of thing that the court has found discretionary.

[00:32:13] Speaker 00:
And when the court has found sort of,

[00:32:16] Speaker 00:
sort of not clearly discretionary language non discretionary is when it's looking backwards.

[00:32:22] Speaker 00:
So if we're looking at whether um an alien had had not established continuous residence, whether they were outside the country for 90 days, those are sort of the algorithmic decisions that this court granted in the in the uh it's usually in the withholding of removal under 1229 b

[00:32:38] Speaker 00:
and you're looking at the 1252A2B1 rather than B2, I think those still provide a good framework from which this court can work and sort of resolve this case.

[00:32:48] Speaker 00:
If the agency has to exercise some sort of judgment or discretion in terms of deciding whether something will be true in the future, I think that still entails some level of discretion, whereas if it's backwards-looking,

[00:32:59] Speaker 00:
For Mejia Rodriguez in the 11th Circuit, that was whether somebody had committed a felony or two misdemeanors.

[00:33:08] Speaker 00:
For Hosseini, cited by the Mukanti Guard Court, that was whether somebody had provided material support to a terrorist organization.

[00:33:16] Speaker 00:
And then for the other decisions that I mentioned earlier, Valdivia, 10th Circuit 2005, whether somebody's absence from the United States exceeded 90 days such that it disrupted continuous

[00:33:29] Speaker 00:
And then the other sort of exception in addition to extreme cruelty is whether somebody's departure that disrupted continuous residents for continuous residents was voluntary.

[00:33:43] Speaker 00:
That was also a decision found to be discretionary because it involves just too much, hey, it could be this, it could be that, depending on the circumstances of the case.

[00:33:49] Speaker 00:
And granted, I don't think it was important to that court that voluntariness is decided in a whole bunch of other legal contexts.

[00:33:56] Speaker 00:
And courts review voluntariness all the time, whether it's contracts

[00:33:59] Speaker 00:
sexual assault claims or whatever it may be, voluntariness really depends on the circumstances and involves some sort of evidence weighing and discretion on behalf of the agency.

[00:34:08] Speaker 00:
So I think generally when it involves predictive guesswork and looking at what's been submitted, will this person, can this person not return to their country, not just an unwillingness, can they not return to their country because they would be subject to persecution at the end of their term?

[00:34:23] Speaker 00:
I do think that involves guesswork about what things are going to be like in Jordan however many months from now or however many years from now.

[00:34:29] Speaker 00:
And I think it also looks at whether, you know, they would be subject to persecution rather as opposed to being possible or whether there's just a fear of it.

[00:34:38] Speaker 00:
So I do think that the sort of decision where it involves more, you know, could go either way is more discretionary than whether somebody did something that disqualified them from the definition of a refugee.

[00:34:49] Speaker 00:
I think that's backward looking.

[00:34:50] Speaker 00:
That's clearly discretion.

[00:34:53] Speaker 00:
Thank you, counsel.

[00:34:54] Speaker 00:
Your time's up.

[00:34:56] Speaker 01:
Let's let's give

[00:34:58] Speaker 01:
About three minutes of rebuttal here.

[00:35:07] Speaker 02:
Thank you.

[00:35:08] Speaker 02:
Thank you, Your Honors.

[00:35:10] Speaker 02:
So the task at hand is to look for whether there is clear and convincing evidence of discretionary language in the statute.

[00:35:17] Speaker 02:
As this Court remarked in Mukantagara, the word determined does not by itself reveal discretion.

[00:35:23] Speaker 02:
So we have to look a little bit further.

[00:35:25] Speaker 02:
So if we look at the dictionary definitions that we defined in our briefing, those amount to an investigation to discover the truth of a matter.

[00:35:36] Speaker 02:
whether the person, whether Mr. Maude be subject to persecution.

[00:35:39] Speaker 02:
And we can compare the statute issue in ContaGuard to the statute issue here.

[00:35:44] Speaker 02:
These are both structured as conditions precedent, right?

[00:35:47] Speaker 02:
So if we read in relevant part section 1157C4, refugee status may be terminated if the attorney general determines that the alien was not in fact a refugee.

[00:35:57] Speaker 02:
And if we look at section 1182 in relevant part,

[00:36:00] Speaker 02:
upon the favorable recommendation of DOS pursuant to the request of USCIS after it has determined that the alien would be subject to persecution, USCIS may waive.

[00:36:10] Speaker 02:
So we have a clear distinction between what is it that they must do, and not necessarily they must do, but that they have a nondiscretionary duty to do, and then they are able to exercise authority after that by the words of the statute as required by Kukana and the plain meaning of section two.

[00:36:28] Speaker 02:
Additionally, the government has intimated, my front across the aisle has intimated, that there is no requirement for the USCIS to pass even a recommendation or even a case where they have found persecution over the State Department.

[00:36:45] Speaker 02:
That is not true.

[00:36:48] Speaker 02:
There is no requirement under DHS regulations

[00:36:52] Speaker 02:
under 212.7, but under State Department regulations, there is a mandatory duty, as we've cited in our briefs, in 22 CFR 41.63.

[00:37:03] Speaker 02:
And it says that USC shall pass for the recommendation, and it says that the State Department shall

[00:37:10] Speaker 02:
evaluate program policy and foreign relations aspects of the case.

[00:37:14] Speaker 02:
So there is no clear discretion that has been granted to USCIS at this first step, not in their policy manual, not in regulation, and not in the statute itself.

[00:37:25] Speaker 02:
if they argue that USCIS is not bound by the State Department's regulations, because this unique statute involves two different agencies, this is a whole-of-government approach.

[00:37:35] Speaker 02:
Because one agency understands the same statute to make a mandatory duty that is nondiscretionary and to pass it over for a recommendation, that is what counts.

[00:37:47] Speaker 02:
So there is regulation that requires that action to be done.

[00:37:52] Speaker 02:
At this time, I'll briefly conclude again.

[00:37:54] Speaker 02:
We ask that this court vacate and remand the district court's decision and that the district court consider whether the USCIS made an arbitrary and capricious decision under the APA and whether to remand for reconsideration.

[00:38:09] Speaker 02:
Thank you.

[00:38:10] Speaker 01:
Thank you, counsel.

[00:38:12] Speaker 01:
The case will be submitted and counsel are excused.