[00:00:02] Speaker 00:
Case number 19-5231, Ban Rao Thai Restaurant et al, a balance, versus Michael R. Pompeo, Secretary of the US Department of State and United States of America.

[00:00:14] Speaker 00:
Mr. Pollock for the balance, Mr. Glover for the appellees.

[00:00:19] Speaker 04:
Morning, counsel.

[00:00:20] Speaker 04:
Mr. Pollock, please proceed when you're ready.

[00:00:23] Speaker 01:
Thank you.

[00:00:23] Speaker 01:
Good morning, your honors, and may it please the court.

[00:00:26] Speaker 01:
My name is Scott Pollock.

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I'm representing the petitioners Ban Rao Thai Restaurant

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and the individual petitioners, Mr. Thompson and Ms.

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Sukhsai.

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What has happened to the petitioners in this case sort of shows the lack of any effective mechanism for them to pursue their rights under the Treaty of Amity and economic relations between Thailand and the United States.

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I want to take just a very short

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time to sort of go over the fact that the Thai restaurant has been in operation for some 12 years.

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Both of the individual petitioners have worked for it successfully for a number of years.

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Mr. Thompson had several, in addition to being granted an E2 visa to come to the US to work for Ban Rao Thai restaurant,

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He was successful in extending his status a couple of times.

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The third time the restaurant sought to extend his status, they were denied.

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They went to court to challenge that denial.

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And that didn't come to a decision by the court, but the agency, the USCIS, reopened its decision and granted his extension one more time.

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until the third quarter of 2018, having not visited his- Why was that in California, Mr. Pollack?

[00:02:07] Speaker 01:
Because the decision denying the extension came from the USCIS's California Service Center.

[00:02:15] Speaker 05:
And is that, the restaurant is in North Dakota?

[00:02:17] Speaker 01:
Correct.

[00:02:18] Speaker 05:
Why California, I'm just not familiar with the work allocation issues.

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There was venue.

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Venue was appropriate in the district court, central district of California.

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And that's where the restaurant chose to bring suit.

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Why was Mr. Thompson applying in California?

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Because all of the, all E2 extensions,

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Go to a service center and it was assigned to the California service center.

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So after he was granted the extension when the service reopened on its own motion.

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He reasonably wanted to travel, take a trip back to Thailand to visit his family.

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It had been a number of years and He had every intention of returning to the same work same

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work conditions that he had been serving the restaurant for a number of years.

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And when he went to apply for his new visa, he had no reason to believe that he would be denied there.

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But of course he was.

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And the restaurant scrambling for other chefs to take over necessary functions in the restaurant, they also

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had their former employee, Ms.

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Suksai, apply, and she too was denied.

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The reasons that the consulate gave for denying these visas was that they did not meet the test for essentiality in the State Department's regulations, and they were told to leave the consulate, and that was the end of it.

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So having litigated the question of Mr. Thompson's eligibility for an E-2 visa, the restaurant was unsuccessful in getting the consulate to reconsider.

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There is no formal mechanism for reconsideration.

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And so they brought suit

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in the District Court in the District of Columbia.

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Can I ask you, Mr. Pollack, is it in the record whether either one of these plaintiffs was eligible for a different status, green card or some of the other status, some other status that would allow them to stay?

[00:04:53] Speaker 01:
It's not in the record, but there would be no other status for them to work for Ban Rao Thai Restaurant.

[00:05:01] Speaker 01:
Okay.

[00:05:03] Speaker 01:
So when we look at the treaty between Thailand and the United States, we have to look at its purpose, its intent, the terms of the treaty, how they operate, and what they say.

[00:05:20] Speaker 04:
So can I ask you a question just as a framing matter?

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Sorry.

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Judge Pillar, I'm sorry.

[00:05:25] Speaker 04:
You can ask your question.

[00:05:28] Speaker 05:
No, no, no, go ahead.

[00:05:29] Speaker 04:
Okay, thanks.

[00:05:30] Speaker 04:
So just as a framing matter, so you don't dispute the existence of the doctrine of consular non-reviewability.

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It is a doctrine that exists and it has been applied to deny judicial review of matters that are at least in this space.

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And so it seems to me the question is, if that doctrine exists and it has existed for a while, there's a Supreme Court decision back in 1950 or somewhere thereabouts that at least manifests that principle.

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then would we not read the treaty against the backdrop of that doctrine?

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And if we do, what is it specifically in this treaty that would give us a sense that that doctrine shouldn't apply, particular to this treaty, in a way that it wouldn't sweep in all treaties that have this kind of free access provision?

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Yes.

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Well, we do not dispute that the doctrine exists and that it has been applied in this area.

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What is different about this treaty and this case is that the treaty was enacted and ratified by the Senate specifically for the purpose of protecting American citizens and their interests abroad and providing reciprocal rights to Thai citizens who are seeking to establish businesses in the United States as well as their employees, their responsible employees.

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The other cases that have recognized the doctrine of consular non-reviewability have not addressed a treaty where the person was seeking a visa in the category that the treaty protections covered.

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So you would have cases, for example, in this court's Saavedra Bruno decision where the person was seeking

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a visa for a family member, other cases like in the Supreme Court, the Cline Deans v. Mandel case, where the person was seeking to come in as a visitor and was not specifically protected by any treaty provisions.

[00:07:42] Speaker 05:
So- So Mr. Pollack, when you say that your clients were protected by treaty provisions, you're referring to the treaty

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Article 1, Section 1 saying that nationals of either party shall be permitted to enter the territories of the other party, and that that includes employees.

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So shall be permitted.

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That's the language.

[00:08:16] Speaker 01:
That's the treaty language, Your Honor, but we don't stop there.

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In addition,

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Congress has specifically recognized a right to enter the United States in its definitional section for the E-2 visa, where they say they describe the person who's entitled to enter the United States under the treaty.

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So entitlement is by definition a right

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to partake in a particular benefit.

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Isn't it part of your claim that you're taking issue with the E2 visa requirement that the person be an essential employee and you're reverting to the responsible employee terminology in the treaty?

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I mean, it does seem like, I'm not sure that I follow the logic of that claim because

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Any two visa is restricted to somebody who's an essential employee.

[00:09:21] Speaker 05:
Well, not by the terms of the treaty itself, but by the terms of the very visa that you're seeking for your clients.

[00:09:28] Speaker 01:
But there is no outside of the State Department's interpretation of the treaty, which says that it should apply to persons holding responsible positions with the employer.

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Essentiality is a

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construction of the State Department, we have two different claims.

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They're separate, but they are related.

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The second one is an ultra virus claim that would impact future applications for E2 visas under this treaty.

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So we're challenging the policy interpretation of the State Department, as well as the application of that policy to these visas that were denied.

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Can I ask you an interpretive question about the free access provision, so Article 2, Section 2?

[00:10:20] Speaker 04:
Yes.

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It speaks in terms of the nationalities and companies of either party having free access to courts in all degrees of jurisdiction, both in defense and in the pursuit of their rights.

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And I'm just wondering, are the rights that we're talking about, they're rights under this treaty?

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Or is it just a more generic provision that just speaks of rights generally?

[00:10:40] Speaker 01:
Well, the way that I read the treaty, Your Honor, is it starts with Article 1 that specifically sets out certain expectations or rights, in our view.

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Then Article 2 talks about a mechanism for a hearing into those rights.

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Now, there are- You think it says their rights.

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It's only talking about the rights that are set out in the treaty.

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It's not just a generic statement about

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rights.

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That's correct.

[00:11:11] Speaker 01:
Correct.

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Although there may be situations in which companies are litigating other types of rights.

[00:11:19] Speaker 01:
For example, in Article 3 of the treaty, it talks about protections for contractual rights, employment, things of that nature.

[00:11:29] Speaker 01:
Right.

[00:11:29] Speaker 05:
In fact, isn't it most naturally read?

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It's in Article 3, Section 1,

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that the treaty recognizes a right to fair and equitable treatment regarding property and enterprises and any action that would impair legally acquired rights and interests and shall ensure that their contract rights are a good effective means of enforcement.

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And it just strikes me that a natural reading of the treaty

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talking about property and contract rights in Article 3, and then in Article 1, it doesn't use the term right, a right to enter the territory.

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It just says, nationals of either party shall be permitted to enter.

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And given the backdrop of consular non-reviewability and given the backdrop of national sovereignty, why shouldn't we read this as an undertaking between nation states

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qua nation states to say, I undertake to let your people in, you undertake to let my people in, pursuant to visa categories and executive visa processing that is otherwise available, CEG E2 visa.

[00:12:47] Speaker 01:
The reason, Your Honor, starts with the first word of the treaty, which is nationals of either party.

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So it recognizes the importance that this is creating

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a type of focus on the individual, not on the nation.

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The Article II right to access to courts also starts with the word nationals and companies of either party.

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So the treaty itself focuses on individual rights.

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And then in Article III, it shifts to obligations of the states.

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to provide particular treatment, of which we would say that doesn't take away the access to courts in Article II, and it doesn't take away what we consider to be the right to enter the United States, the treaty language supplemented by the Immigration and Nationality Act.

[00:13:58] Speaker 05:
Do we know Mr. Pollack why

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why these applications were denied.

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The embassy in Bangkok didn't say in what respect that they didn't meet, quote, all the requirements of an E2 essential employee, but the consular official so determined that they didn't meet all the requirements of an E2 essential employee.

[00:14:19] Speaker 01:
So one of the problems that all visa applicants have who are denied a visa is that they are not given a

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reasoned explanation of the reasons why they're denied.

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And we would hope that this court would hold that because the doctrine of consular non-reviewability does not reach to this particular case, that we would have a sort of regular review process by which the consulate would have to explain itself.

[00:15:00] Speaker 01:
This is not the same area as these other cases that are cited throughout the briefs and the district court's decision, where there

[00:15:15] Speaker 01:
Sorry, I'm losing my train of thought.

[00:15:18] Speaker 05:
Well, let me just ask you, and hopefully that'll come back to you.

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I think it's in your complaint that you allege that a consular officer told these applicants that new rules prevent the embassy from issuing E-2 visas to chefs.

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Correct.

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As essential employees.

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So it sounds like there was just a policy determination that they were going to restrict

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people in this category.

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But in your view, that would not be an adequate reason?

[00:15:50] Speaker 01:
No, because it would really make no sense.

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I mean, chefs are essential to a restaurant's operation.

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And I think that one thing that happens is that occasionally, consular officers will say just about anything so that the person will leave after a decision has been made.

[00:16:13] Speaker 01:
And so I don't take this as a statement of State Department policy or a change that no Thai chefs anywhere will qualify for an E2 visa.

[00:16:26] Speaker 01:
We really don't know why these particular applicants were denied after so many times of already being issued visas and being able to extend their status in the United States.

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And we would hope that the same process

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of review would apply to this case that would apply when Mr. Thompson and Ban Rao Thai Restaurant applied to the court to review a negative decision.

[00:16:55] Speaker 01:
I don't see a reason to have a different court access, whether the person is initiating it from the US or whether the company, which is still here,

[00:17:10] Speaker 01:
initiates it with them outside of the US.

[00:17:13] Speaker 05:
And in your ultra virus claim, your assumption is that a responsible employee is a broader category than an essential employee?

[00:17:21] Speaker 01:
Yeah, I think that essential is a more vague term.

[00:17:26] Speaker 01:
I think it's more general.

[00:17:29] Speaker 01:
It's harder to understand who is essential.

[00:17:34] Speaker 01:
It's more restrictive for sure.

[00:17:36] Speaker 05:
I don't know.

[00:17:37] Speaker 05:
I mean, one way of reading responsible employees, somebody who's actually in charge of the enterprise, a manager, you know, someone who's really running the show, you know, employee employed by an investor in a responsible capacity, responsible for the success of the investments, perhaps, but you don't have any, you don't have any authorities that really go to how we should understand that.

[00:18:02] Speaker 01:
I'm unaware in the absence of

[00:18:04] Speaker 01:
definitions or court interpretations, we just don't know what these terms should mean.

[00:18:11] Speaker 01:
But I do think that essentiality is a more exacting standard than responsible.

[00:18:17] Speaker 01:
Responsible could be a manager, but a chef can certainly be managing the kitchen and the food.

[00:18:25] Speaker 01:
So I think that, in my view, responsible is a broader category than essential.

[00:18:35] Speaker 04:
Thank you.

[00:18:36] Speaker 04:
Let me just make sure my colleagues don't have further questions for you before we give the government a chance.

[00:18:42] Speaker 04:
Thank you, Mr. Pollack.

[00:18:43] Speaker 04:
We'll give you some rebuttal time.

[00:18:44] Speaker 04:
Mr. Glover.

[00:18:46] Speaker 04:
Good morning.

[00:18:47] Speaker 02:
May it please the court, I'm Matthew Glover and I represent the government.

[00:18:51] Speaker 02:
As the District Court found, the doctrine of consular non-reviewability bars review of both the plaintiff's claims.

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And as the questioning this morning goes to, I think, Chief Judge Srinivasan, you narrowed it to, they agree that the doctrine of consular non-reviewability would normally apply, but they read the treaty as abrogating that.

[00:19:09] Speaker 02:
And we do not.

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We believe the treaty is one in a long line of treaties.

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This is a shortened version of this long line of treaties of friendship,

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commerce and navigation that allow, among other things, access to courts.

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And these access provisions, as described in our brief and as explained by Judge Friendly for the Fifth Circuit in Blanco versus United States, pertain to procedural rights, rights like the availability of a lawyer, not having to pay filing fees, etc.

[00:19:36] Speaker 02:
And so reading the treaty against the backdrop of our law, including consular and reviewability,

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It does not create a new substantive right to come into court and challenge your exclusion under an E-1 or E-2 visa category.

[00:19:49] Speaker 05:
Mr. Glover, is the Consular Non-Reviewability a jurisdictional doctrine in the sense that it's necessary to decide it even if it's not raised in the narrow Arbaugh sense?

[00:20:04] Speaker 02:
That's a difficult question.

[00:20:05] Speaker 02:
I think after Trump versus Hawaii, in which the Supreme Court pointed to a concession by the Solicitor General at page 13 of the oral argument transcript, that it was not jurisdictional in the subject matter jurisdiction sense.

[00:20:17] Speaker 02:
The Supreme Court there thus went on to the INA and constitutional questions dealing with whether the president's exercise of 8 USC, 1182 F, and 1185 A authority was lawful.

[00:20:30] Speaker 05:
I mean, I appreciate the candor of your brief on this point.

[00:20:34] Speaker 05:
It seems like that's right.

[00:20:38] Speaker 05:
Now, if we agree with you, do we have to get permission from our colleagues en banc in view of Saavedra?

[00:20:44] Speaker 05:
Or do you think that Saavedra is not clear in viewing it as subject matter jurisdictional in that particular way?

[00:20:52] Speaker 02:
I would make a couple of points to this, Your Honor, and I would, before I do that, note that the screen paused for a second, so I want to make sure everyone is hearing me and make sure I haven't cut out.

[00:21:01] Speaker 04:
Yeah, we can, at least I can.

[00:21:03] Speaker 05:
Thank you.

[00:21:03] Speaker 05:
Sorry if my Wi-Fi is not strong.

[00:21:08] Speaker 02:
It may be my Wi-Fi, Your Honor.

[00:21:09] Speaker 02:
I just wanted to make sure.

[00:21:11] Speaker 02:
But a couple of points to that.

[00:21:13] Speaker 02:
I think the Seventh Circuit describing Saavedra pointed out that Saavedra was issued, you know, around the time of Steel Co.

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and at a time in which jurisdictional was maybe used more broadly.

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And this Court has said and was repeated in Steel Co.

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and been repeated by the Supreme Court a number of times that

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Jurisdiction is a word of many, too many meanings.

[00:21:32] Speaker 02:
The analysis in surveillance is still appropriately applying Mandel, appropriately applying Fiala, appropriately applying all of these doctrines, appropriately looking at the INA provisions giving consular officers authority to make denials that's not reviewable even by the Secretary of State.

[00:21:49] Speaker 02:
And so we think consular non-reviewability supplies a rule of decision, sort of a non-subject matter jurisdiction, but just disability doctrine.

[00:21:58] Speaker 05:
Right, and the end that Saavedra is appropriately treated, appropriately read as so treating it, that's the key point for my question about what we would have to do as a panel bound by prior panels, iron's footnote, not iron's footnote.

[00:22:16] Speaker 02:
I would think you don't need an iron's footnote to treat Saavedra's use of jurisdictional as sort of this more vague non-subject matter jurisdictional sense.

[00:22:24] Speaker 02:
And again, I would think Hawaii, the Supreme Court relied on a concession there, but I think you're likely bound by the Supreme Court's reasoning relying on that concession, even in light of that here.

[00:22:40] Speaker 02:
I would also note, and I know we cover this in our brief, so I don't mean to bore the court,

[00:22:44] Speaker 02:
The district court did treat it as a 12B1 ruling, but as we cite claimant versus Department of Energy, which is the 1992 opinion of this court where the court said, you can affirm a 12B1 ruling on the basis of 12B6 if the legal reasoning is correct.

[00:22:58] Speaker 02:
And so again, we think the legal rule and the reasoning both in Saavedra and as applied here in the district court are correct.

[00:23:05] Speaker 02:
The district court just framed it as 12B1 when it should have been framed as a rule of decision.

[00:23:09] Speaker 04:
And just to be clear, so as I'm on the typology of how we do the steel company jurisdictional

[00:23:14] Speaker 04:
framework, the government's position is that consular non-reviability not only is not subject matter jurisdiction, but it's not a threshold issue in the vein of foreign non-convenience or personal jurisdiction or other things.

[00:23:27] Speaker 04:
It's a merits question.

[00:23:29] Speaker 04:
But even though it's a merits question, we still have authority, putting aside our precedent, what Judge Pilter was talking about, but we still have authority to affirm a jurisdictional dismissal on merits grounds.

[00:23:43] Speaker 02:
So I would think that it is a threshold question that establishes a rule of decision.

[00:23:48] Speaker 02:
I don't mean to be imprecise.

[00:23:54] Speaker 02:
Sort of stepping back because it stems from the separation of powers and from as explained by the court and savager Bruno and sort of relying on Fiala and Heresades I believe is the pronunciation of Mandel that it's an issue of it's a separation of powers question because there's no right of a foreign national to enter this country and to sue and because the plenary authority.

[00:24:15] Speaker 02:
of the political branches exercising that sovereignty is what's being exercised, that it is something that should be decided sort of as a threshold rule of decision, but the Supreme Court clearly, you know, felt that it could go past it in Hawaii.

[00:24:32] Speaker 04:
Now, I guess what I mean by threshold is just in the nomenclature that like

[00:24:36] Speaker 04:
There's like rural gas, there's opinions that say that there's a catch of threshold determinations that steel company still allows for deciding at the beginning, like forum non-convenience.

[00:24:50] Speaker 04:
But forum non-convenience is still something that you would decide before you get to the merits.

[00:24:54] Speaker 04:
And as I understand Trump v. Hawaii, the way it treated consular non-reviewability

[00:25:02] Speaker 04:
is not as one of those threshold things like subject matter jurisdiction that you have to do at the outset before you get to the merits, but as a merits question.

[00:25:10] Speaker 04:
It may be one of the first merits questions you reach, but it seems like it's in the catch of merits questions rather than threshold jurisdictional ones.

[00:25:17] Speaker 02:
I think that's probably the right interpretation because the court did say in Trump versus Hawaii, because now they use jurisdictional I think in the subject matter jurisdiction sense if you look at the Solicitor General's statements around page 12 and 13 of the oral argument transcript.

[00:25:34] Speaker 02:
As I read it, he was conceding that it's not subject matter jurisdiction, but the Supreme Court did say it could proceed to the merits.

[00:25:40] Speaker 02:
If this, I don't think you need to address that here because the district court did rule on constant arguably and we believe its ruling was correct.

[00:25:48] Speaker 02:
But if that's something that court would like further briefing on, we could certainly provide additional briefing on that issue.

[00:25:55] Speaker 04:
My question is,

[00:25:58] Speaker 04:
The free access provision in the treaty, you said that this is kind of one shortened version of a standard everyday fare in this landscape.

[00:26:05] Speaker 04:
Is that true of all the relevant provisions, not just the free access provision, but also Article 1?

[00:26:11] Speaker 04:
Is that kind of, is that standard fare too?

[00:26:14] Speaker 02:
Your Honor, I want to apologize.

[00:26:16] Speaker 02:
I may have introduced some confusion in my language.

[00:26:19] Speaker 02:
The Treaty of Amity, and this is also discussed in the Secretary of State Dean Rusk's private like message to the Senate when he handed this over and Senator Mansfield's discussion when they introduced it, the Treaty of Amity.

[00:26:31] Speaker 02:
which is the treaty between the United States and Thailand, treaties of amity are shortened versions of the traditional treaty of friendship, commerce, and navigation.

[00:26:39] Speaker 02:
And they cite three.

[00:26:40] Speaker 02:
We had one that's no longer enforced with Iran.

[00:26:42] Speaker 02:
We have one with Ethiopia.

[00:26:44] Speaker 02:
And we have this one with Thailand.

[00:26:45] Speaker 02:
That's to say that the overall treaty is a shortened version of these friendship, commerce, and navigation treaties.

[00:26:52] Speaker 02:
The actual access provision here is, as we point in our brief to a number of other access provisions, nearly identical.

[00:26:58] Speaker 02:
And I think my recollection is that Article I on the entry

[00:27:01] Speaker 02:
is nearly identical to a lot of these treaties.

[00:27:03] Speaker 02:
So I didn't mean to say either of those provisions are shortened versions.

[00:27:07] Speaker 02:
I meant to say that the treaty as a whole is a shortened version.

[00:27:11] Speaker 04:
In terms of both the free access provision and Article One, those are not unique to this treaty.

[00:27:18] Speaker 02:
No, absolutely not, Your Honor.

[00:27:20] Speaker 02:
The free access provisions language is identical to a number of other treaties or close to identical.

[00:27:24] Speaker 02:
I think we drop a footnote in our brief saying some of them say freedom of access and some of them say free access.

[00:27:30] Speaker 02:
And so

[00:27:31] Speaker 02:
We use them interchangeably because, I apologize, it looked like you were asking a question.

[00:27:35] Speaker 05:
No, I was just going to say not to belabor the point, but the question being not just the free access being a standard kind of wording, but the beginning of this Treaty of Amity that talks about the nationals of either party shall be permitted to enter.

[00:27:55] Speaker 05:
Is that also a standard kind of word

[00:28:00] Speaker 05:
you know, terminology and provision in either a treaty of amity or the longer friendship treaties.

[00:28:08] Speaker 02:
Yes, absolutely, your honor.

[00:28:09] Speaker 02:
That is a common provision.

[00:28:10] Speaker 02:
I think it goes towards sort of the concept of the two nations are friends, and so they are allowing the nationals of the other country to enter or subject to other provisions.

[00:28:20] Speaker 02:
We do point out in our brief, and I know I'm short on time, that this treaty, similar to the Treaty of Amity with Iran, which this court in McKesson Corp in 2008 interpreted not to create a private cause of action and merely to provide for issues that the parties would need to

[00:28:38] Speaker 02:
The contracting countries of the treaty signatory countries would need to contract.

[00:28:42] Speaker 02:
I think the court in McKesson framed it at 539 F third at 491 that the Treaty of Amity with Iran.

[00:28:50] Speaker 02:
I apologize.

[00:28:51] Speaker 02:
I'm over into the red light, but

[00:28:53] Speaker 05:
You can finish the thought.

[00:28:54] Speaker 05:
You can answer.

[00:28:54] Speaker 02:
Yeah.

[00:28:55] Speaker 02:
There was an absence of a textual invitation to judicial participation in that Treaty of Amity.

[00:29:01] Speaker 02:
That's how this court framed it there.

[00:29:03] Speaker 02:
We think this treaty, which is identical in the important respect, similarly has an absence of any indication of judicial participation, and that this treaty should be read against the backdrop that, as the court said in Saavedra Bruno, foreign nationals don't have a right to enter the country for which they can sue in our courts.

[00:29:21] Speaker 02:
And that's why the court and the

[00:29:22] Speaker 02:
addressing the Treaty of Amity with Iran said, you know, it didn't create private rights.

[00:29:28] Speaker 02:
Again, I know I'm over time and I don't want to ramble, but we cite the second restatement, which was published a year before this treaty was signed and I guess then three years before it went into force.

[00:29:37] Speaker 02:
The second restatement, I believe it's section 115 comment E specifically says that these treaties of friendship, commerce and navigation often speak in terms of rights, but they're not actually creating individual rights.

[00:29:48] Speaker 02:
It's meant to be engaged in at the level of the parties,

[00:29:55] Speaker 04:
Thank you, Mr. Glover.

[00:29:57] Speaker 04:
If my colleagues don't have any further questions, then we'll give Mr. Pollack his rebuttal time.

[00:30:03] Speaker 01:
Thank you.

[00:30:04] Speaker 04:
I mean, Mr. Pollack, sorry, we'll give you two minutes of rebuttal.

[00:30:07] Speaker 01:
Thank you.

[00:30:08] Speaker 01:
So I don't think that this court should accept the limitation that the government is putting on the free access provision to the extent that Blanco stands for that.

[00:30:21] Speaker 01:
The facts of Blanco are much different than here

[00:30:24] Speaker 01:
Rather than judging this case by the backdrop of consular non-reviewability, I think I would ask the court to look to the actual language of the treaty.

[00:30:35] Speaker 01:
The free access provision does not include any such limitation itself.

[00:30:41] Speaker 01:
And to the extent that an exception to consular non-reviewability is recognized, that was certainly something that the court in Saavedra Bruno as well as in Knopf

[00:30:54] Speaker 01:
v. Shaughnessy anticipated that there could be another source of law that would allow for court review of consular decisions in particular cases.

[00:31:05] Speaker 01:
This is one of those cases we would argue.

[00:31:08] Speaker 05:
And so just to pin it down, when you say that notwithstanding the doctrine of consular reviewability, review here is expressly authorized by law

[00:31:21] Speaker 05:
to use the phrase that the court uses in now versus Shaughnessy, the express authorization to which you point is Article 1, Section 1 of the treaty, together with Article 3, Section 1, equitable, fair and equitable treatment.

[00:31:39] Speaker 01:
Right, as well as the Article 3 guarantees of non-discrimination and reasonable behavior on the part of the state.

[00:31:46] Speaker 01:
and supplemented by the definitional section in the Immigration and Nationality Act, by which Congress understood the treaty language to mean an entitlement to enter the United States.

[00:32:03] Speaker 01:
So I just want to spend my last point, if I may, on our ultra virus argument, which we covered previously a bit.

[00:32:16] Speaker 01:
I would just point out that this court had an opportunity in the Alma Crami decision, which had an opportunity to decide that consular non-reviewability applied to a challenge to a State Department policy, the same policy that was described in the P.K.

[00:32:40] Speaker 01:
Tillerson, P.K.

[00:32:42] Speaker 01:
V. Tillerson decision, and it did not

[00:32:46] Speaker 01:
specifically address it, but it also did not disturb the PK Tillerson language that we rely on in part in our reply brief.

[00:32:55] Speaker 01:
So with that, unless there are further questions, we will rest.

[00:33:01] Speaker 04:
Thank you, counsel.

[00:33:02] Speaker 04:
Thank you to both counsel.

[00:33:03] Speaker 04:
We'll take this case under submission.