[00:00:00] Speaker 00: Case number 20-5235, ITEC U.S. [00:00:02] Speaker 00: Inc. [00:00:04] Speaker 00: Appellant versus Tracy Renaud, Acting Director, United States Citizenship and Immigration Services. [00:00:10] Speaker 00: Mr. Forney for the appellant, Mr. Goldsmith for the appellant. [00:00:14] Speaker 01: Good morning, counsel. [00:00:16] Speaker 01: Mr. Forney, please proceed when you're ready. [00:00:18] Speaker 02: Thank you, Your Honor. [00:00:19] Speaker 02: May it please the court, Jeffrey Forney for Appellant, ITEC U.S. [00:00:23] Speaker 02: Inc. [00:00:25] Speaker 02: The court must start from the presumption that [00:00:27] Speaker 02: Congress intended judicial review of agency action. [00:00:31] Speaker 02: It's a long-standing presumption it's embedded in the Administrative Procedure Act and has been long recognized by the Supreme Court. [00:00:38] Speaker 02: At St. [00:00:39] Speaker 02: Clair in convincing evidence to the contrary based on the text and structure of the statute of issue, the court has jurisdiction to review the agency's action. [00:00:48] Speaker 02: That guideline defeats the government's claim that petition revocations under section 1155 are not subject to judicial review. [00:01:00] Speaker 02: The overarching statute in question, which potentially, at least in the government's view, triggers the lack of judicial review, starts with section 1252A2B2. [00:01:13] Speaker 02: That provision removes the court's jurisdiction to review [00:01:16] Speaker 02: any decision or action specified to be in the discretion of the Secretary of Homeland Security. [00:01:23] Speaker 02: But revocation decisions under Section 1155 did not come within the ambit of that provision because Section 1155 does not specify that revocation decisions are within the discretion of the Secretary of Homeland Security or his delegate, in this case, USCIS. [00:01:46] Speaker 04: Notably, your theory has to be that specify imposes a magic words requirement. [00:01:56] Speaker 04: No, 1155 is as discretionary as discretionary can be. [00:02:02] Speaker 04: You have a may, you have an at any time, and you have for what he deems that exudes discretion. [00:02:13] Speaker 04: The only thing you don't have is [00:02:16] Speaker 04: the D word. [00:02:18] Speaker 04: So what, what, what are you arguing? [00:02:20] Speaker 04: What, what could you be arguing for other than magic words? [00:02:24] Speaker 02: Well, you don't need magic words. [00:02:27] Speaker 02: That's correct. [00:02:27] Speaker 02: But if you look at the statutory history and the structure of the statute, which is one of the guidelines that the Supreme court says you need to do in cases like this, where the government is arguing no judicial review, a companion provision [00:02:44] Speaker 02: regarding visa revocations under section 1201 I, which was enacted at the same time as the petition revocation provision. [00:02:53] Speaker 02: 1201 I uses the word discretion and has always used that word. [00:03:01] Speaker 02: Those two provisions have been amended at the same time over the years and Congress specifically buttressed [00:03:12] Speaker 02: the lack of judicial review in visa revocation cases, but never touched 1155 to indicate that petition revocations are discretionary. [00:03:25] Speaker 02: That absence of the word, I believe in this context is very notable. [00:03:29] Speaker 02: And although your honor is right, magic words are not required. [00:03:33] Speaker 02: That statutory history and the structure is very indicative of congressional intent. [00:03:38] Speaker 02: They certainly know how to say when they want [00:03:42] Speaker 02: an agency decision to be immune from judicial review. [00:03:44] Speaker 02: And they just haven't done that specifically in the context of 1155. [00:03:51] Speaker 02: Now, regarding the other words that your honor pointed out that are in 1155, let's take them each in turn. [00:03:59] Speaker 02: For example, the phrase at any time doesn't in itself indicate discretion. [00:04:05] Speaker 02: It simply indicates that at least within [00:04:09] Speaker 02: notable range that there's no statute of limitations. [00:04:12] Speaker 02: Other provisions in the statute have statute of limitations like revocations or a rescission of adjustment of status under a later provision. [00:04:26] Speaker 02: For example, section 1256 has a five-year statute of limitations. [00:04:31] Speaker 02: So Congress just simply indicated there wouldn't be in the ordinary course of statute of limitations on revoke. [00:04:38] Speaker 01: With the other two pieces of it, that's at any time, but with May and with Deem, those are both aspects of the statute that we pointed to in our decision in Zhu. [00:04:49] Speaker 02: Yeah, that's correct. [00:04:51] Speaker 02: Zoo is not controlling because of course, unlike what the government wants the court to do and what they've asked other courts to do is to parse words. [00:05:03] Speaker 02: The appellant's position is that you can take all these terms together, it still doesn't impute discretion. [00:05:09] Speaker 02: For example, in zoo, the court read all of those terms together, deems to be in the national interest. [00:05:16] Speaker 02: So that word deems was significant in that context because [00:05:20] Speaker 02: Of course, national interest presents a spectrum of options that are not amenable to judicial review. [00:05:27] Speaker 02: In that case in Sioux involved, of course, the second preference petition that was denied, but there were no judicially manageable standards, because again, in order to obtain a waiver in that context, the Secretary of Homeland Security has to find it's in the national interest. [00:05:44] Speaker 02: That's just not amenable to any judicial standard. [00:05:47] Speaker 02: There's nothing for the court to evaluate. [00:05:49] Speaker 02: And that followed as the court indicated from Webster v. Doe, which involved a similar type of situation where the head of the CIA could determine the dismissal of employees for what he deemed to be in the national interest. [00:06:07] Speaker 02: And interestingly in that case in Webster v Doe, that statute also said in the discretion of the director of the CIA, I think with both Webster v Doe and this court's decision in zoo council is that statutory terms have to be taken together as a whole. [00:06:25] Speaker 02: You can't parse words and count them up and then say in the end, we think there's discretion here. [00:06:30] Speaker 02: You have to be taken together. [00:06:32] Speaker 02: And the critical terms to be taken together with [00:06:35] Speaker 02: deems at any time in May is good and sufficient cause. [00:06:40] Speaker 02: That good and sufficient cause standard is specifically referencing as the statute indicates in 1155, the standards under 1154 have to do with petition adjudications. [00:06:54] Speaker 02: And that statute actually provides manageable standards. [00:06:58] Speaker 02: There has to be fact finding and facts have to fall within the particular [00:07:04] Speaker 02: visa classification that's at issue. [00:07:07] Speaker 02: Those standards are defined by 1153. [00:07:11] Speaker 02: So in order to find discretion in this case, without that term specifically being used, which it's not, the court would really have to ignore the import of good and sufficient cause. [00:07:23] Speaker 01: And I believe the nights, but it seems like the word deems is doing some work here because in zoo. [00:07:28] Speaker 01: I understand your point that you involved a statute that referred specifically to the national interest. [00:07:34] Speaker 01: Sure. [00:07:34] Speaker 01: Now, I mean, we could have a debate about whether national interest is more indicative of deference than good and sufficient cause I don't know that there's a clear answer to that but what do. [00:07:45] Speaker 01: emphasized was that the word deems preceded it. [00:07:47] Speaker 01: And that's why the parenthetical of Webster versus Doe highlights and italicizes the word deems. [00:07:52] Speaker 01: And that's what makes this seem awfully discretionary is that it is what he deems to be good and sufficient cause. [00:08:01] Speaker 01: And that seems to give the person that's making the determination of good and sufficient cause a wide berth of discretion to make that determination because it's whatever he deems. [00:08:15] Speaker 02: Well, deems means judgment, a decision. [00:08:20] Speaker 02: If the statute just simply said he can revoke if he deems so, without any other reference to other statutory provisions or good and sufficient cause, I have to agree with you. [00:08:33] Speaker 02: It would be completely open-ended. [00:08:34] Speaker 02: There'd be no judicially manageable standards or discernible standards at all. [00:08:39] Speaker 02: But the fact that it's this good and sufficient cause means the judgment can't just be free-floating, disconnected. [00:08:46] Speaker 03: But counsel, the statute could just say the secretary for good and sufficient cause may so-and-so, may revoke. [00:08:58] Speaker 03: And then perhaps your argument would be well taken. [00:09:04] Speaker 03: But I think the point of the prior question is that it doesn't say the secretary may for good and sufficient cause. [00:09:14] Speaker 03: It says deems what he deems or she deems to be good and sufficient cause. [00:09:22] Speaker 03: And I think the point of the prior question is that in that context, deems has to do some work. [00:09:28] Speaker 03: Why isn't that the case? [00:09:31] Speaker 02: Well, Deems certainly does some work. [00:09:34] Speaker 02: The statute indicates that, of course, it's the Secretary of Homeland Security's decision. [00:09:39] Speaker 02: It's his or her judgment, as Deems indicates. [00:09:43] Speaker 02: But again, that judgment can't be disconnected from any standards because [00:09:51] Speaker 02: there has to be some baseline. [00:09:52] Speaker 02: What is good and sufficient cause? [00:09:54] Speaker 02: And then if deems is a free floating term that controls everything else, it would apparently negate the reference to 1154 that's specifically noted in section 1155. [00:10:11] Speaker 02: So those standards just disappear because there's the word deems. [00:10:15] Speaker 02: The conclusion that the government wants the court to come to, and that unfortunately other courts have come to, except for the Ninth Circuit, is that you basically have to ignore any kind of import of good and sufficient cause. [00:10:28] Speaker 02: But at minimum, the fact that good and sufficient cause is there in the statute, and there's a reference to 1154, at minimum creates an ambiguity. [00:10:37] Speaker 02: And without ambiguity, there's no clear and convincing evidence that the court is stripped of jurisdiction. [00:10:44] Speaker 01: Let me make sure my colleagues don't have further questions for you at this time. [00:10:46] Speaker 01: We'll give you a bit of time for rebuttal, Mr. Forney. [00:10:49] Speaker 01: Thank you. [00:10:49] Speaker 01: Why don't we hear from the government, Mr. Goldsmith? [00:10:52] Speaker 05: Your honor, may it please the court, Aaron Goldsmith on behalf of the government. [00:10:56] Speaker 05: I'd like to begin by talking about the zoo decision that was just referenced a few minutes ago, because I want to clarify a point. [00:11:03] Speaker 05: There were two different statutes that were interpreted in that case, and there were, in effect, two different holdings. [00:11:10] Speaker 05: One of them is controlling here, and that is its interpretation [00:11:14] Speaker 05: this court's interpretation of 1252A2B2. [00:11:18] Speaker 05: It specifically addressed the question of whether or not a provision needs to use the word discretion in order to fall within the scope of 1252A2B2. [00:11:29] Speaker 05: And this court said it does not need to use that word. [00:11:34] Speaker 05: Now, it then went on to interpret another provision involving the waiver, nationalist waiver of labor, [00:11:43] Speaker 05: But that's a different provision that may not be controlling, although I think it does provide some guidance since it uses two of the same words that 1155 uses here. [00:11:56] Speaker 05: And not only was that this court's reading of 1252A2B2 in Zoom, but the Supreme Court in Kupanen, footnote 13, read 1252A2B2 [00:12:10] Speaker 05: in the exact same way for the same reason. [00:12:12] Speaker 05: Now I know that wasn't central to the Krekanen decision, but the clear import is that 1252A2B2 does not require the use of the word discretion in order for a provision to fall within its scope. [00:12:29] Speaker 01: Can I ask on 1252A2B2, if I said that right, yeah, 1252A2B2, can I ask the following question, which is, [00:12:38] Speaker 01: If the secretary denies a petition, that's reviewable. [00:12:49] Speaker 01: But then if the secretary revokes a petition, the approval of a petition, it's not reviewable. [00:12:56] Speaker 01: And it just lends itself to the following situation potentially, which is that the secretary denies [00:13:03] Speaker 01: And then there's judicial review and the court sends it back and says the grounds for denial is erroneous. [00:13:09] Speaker 01: And the secretary says, okay, well then I'm granting and then I'm turning around and revoking it for exactly the same reason. [00:13:15] Speaker 05: I want to address that concern. [00:13:17] Speaker 05: Of course, the presumption of regularity cuts against that, but let's just assume your scenario. [00:13:25] Speaker 05: There is a distinction between denials and revocations. [00:13:30] Speaker 05: And presumably when, [00:13:32] Speaker 05: an agency says it's revoking something, it actually is revoking it. [00:13:36] Speaker 05: But under your scenario, I'm not sure that's true. [00:13:39] Speaker 05: If an agency were foolish enough to approve something and then immediately revoke it, it seems that that would be in substance basically a denial, not a revocation, that the law deals in substance and not in formalities and labels. [00:13:57] Speaker 05: It would be akin to an agency trying to [00:14:02] Speaker 05: let's say deny a petition, and then writing at the top of the page, it's a revocation and claiming it falls within 1155. [00:14:12] Speaker 05: That wouldn't pass muster. [00:14:13] Speaker 05: The courts still look to see, is this in fact a revocation? [00:14:18] Speaker 05: You can't just get out of that by labeling it a different way. [00:14:22] Speaker 04: I'm sorry, what's the difference between the two in this line of reasoning, between a revocation and a denial? [00:14:32] Speaker 05: that, well, just the plain name of the words, if in the first instance it's a denial, it's made a decision, if it has in substance initially approved something, it's found that they meet the standards set forward by statute or regulation or AO decision, [00:14:54] Speaker 05: And then subsequently, as in here, they revoke it. [00:14:59] Speaker 05: This was not like the hypothetical that was just posed to me in that it was over two and a half years later. [00:15:08] Speaker 04: But your answer to the hypothetical suggests that the revocation power [00:15:18] Speaker 04: which on its face seems to be purely discretionary, might for structural reasons have limitations built into it, right? [00:15:33] Speaker 04: You're saying something that looks like a revocation might actually be an improper denial. [00:15:40] Speaker 05: I'm saying that the scenario that was outlined would never come up in practice. [00:15:45] Speaker 05: So it's a difficult hypothetical to address, given the presumption of regularity. [00:15:50] Speaker 05: And the question was, well, but if it did come up, how would it be handled? [00:15:55] Speaker 05: And I think that's how a court would look at it, would look at the substance of what it is. [00:16:05] Speaker 05: you know, I'm not sure that's necessarily the right answer, but I think that's how, as a practice, that courts would look at it, if that situation ever came up. [00:16:15] Speaker 01: I mean, I guess one way to conceive of that kind of hypothetical is, correct me if I'm wrong, that whatever work that hypothetical would do on behalf of Appellant's position, it would be equally true for even the granting of release that are specified in Roman at one, in that if the, [00:16:35] Speaker 01: Second, you could have the same dynamic play out under Roman at one. [00:16:38] Speaker 01: If I'm thinking about it right, maybe I'm not. [00:16:40] Speaker 01: But if I'm thinking about it right, you could have the same dynamic play out under Roman at one because there could be a judgment regarding the granting relief under one of the specified provisions, i.e. [00:16:50] Speaker 01: a denial of relief. [00:16:52] Speaker 01: A court would have judicial review of that. [00:16:55] Speaker 01: Oh no, the court wouldn't have judicial review to begin with. [00:16:57] Speaker 01: I see. [00:16:59] Speaker 05: Right. [00:17:00] Speaker 05: Subsection one and two should be read in harmony. [00:17:03] Speaker 05: There is a difference that opposing counsel brought up or was sort of alluded to, which is that for subsection one, it uses the word judgment, whereas subsection two uses a decisional action, which is presumably broader. [00:17:21] Speaker 05: So there is that a little bit of a difference there. [00:17:26] Speaker 05: Congress didn't define what judgment means, but it is presumably narrower than any other decision or action. [00:17:35] Speaker 05: So I'm not sure how that would exactly play out in your situation, but I'm sorry. [00:17:43] Speaker 01: So you still have that potential dynamic at play then with respect to this provision, because you could have the denial of a petition [00:17:53] Speaker 01: followed by judicial review that said the grounds for denial is wrong, followed by a revocation that is on the same ground on which the denial was deemed to be wrong. [00:18:07] Speaker 01: You could have that. [00:18:08] Speaker 01: And I'm not saying that necessarily means that your reading is wrong. [00:18:13] Speaker 01: At the end of the day, it just seems like a feature of the [00:18:18] Speaker 01: Judicial review provisions as you outline them is that you could have that dynamic play out and the result at the end of the day would be no judicial review, unless, as you say. [00:18:26] Speaker 01: A court would say well effectively, even though you're saying you the Secretary saying it's a revocation. [00:18:32] Speaker 01: We are deeming it to use a word we're deeming it to be a denial in this context and substance and therefore we're going to say it is reviewable as if it were a denial all along. [00:18:43] Speaker 05: Your honor, it is a difficult hypothetical to address, but I think how courts would address if it ever came up as they would say it is in substance, a denial. [00:18:54] Speaker 05: And, and, and just to just to move on about the. [00:18:59] Speaker 05: who can in opinion, just because it's been referred to a couple of times. [00:19:05] Speaker 05: In footnote 13, it reads 1252 A2B2 the same way that this court did in zoo. [00:19:13] Speaker 05: And there have been four circuit courts that have addressed this precisely. [00:19:23] Speaker 05: 1252, A2B2 borrows judicial review of revocation decisions that it is just the plain text. [00:19:30] Speaker 05: As the seventh circuit has said, it's hard to imagine a clearer grant of discretion than the language of 1155. [00:19:37] Speaker 05: And that this case is at heart a case about statutory construction, about what the words mean. [00:19:46] Speaker 05: And when you read these two provisions together, [00:19:51] Speaker 05: There is only one outcome, and that is that there is no judicial review of revocation decisions. [00:20:00] Speaker 05: And as a result, the decision of the district court. [00:20:05] Speaker 01: Can I ask you one last question, at least for my purposes, I think, which is, are you aware of any other decision or action of the attorney general that's specified to be within the discretion of the attorney general or secretary? [00:20:21] Speaker 01: that would not be considered a judgment regarding granting of discretionary relief. [00:20:29] Speaker 05: I'm sorry. [00:20:29] Speaker 05: I don't understand. [00:20:30] Speaker 01: Okay. [00:20:30] Speaker 01: So, so let me, let me like the groundwork for this. [00:20:33] Speaker 01: So Roman at one deals with judgments regarding the granting of relief, right? [00:20:38] Speaker 01: Roman at two, what you've argued is it speaks more broadly than that because it talks about any other decision or action that's specified to be within the discretion. [00:20:47] Speaker 01: And then at the end of Roman at two, [00:20:49] Speaker 01: It carves out the granting of relief under the asylum provision, which is also the granting of discretionary relief. [00:20:54] Speaker 01: Now what the other side says is this whole thing, especially if you take into the title, is about denials of discretionary relief. [00:21:02] Speaker 01: But yet this decision, the one that's particularly at issue in this case, doesn't have to do with discretionary relief. [00:21:09] Speaker 01: And so you shouldn't read any other decision or action to go beyond discretionary relief. [00:21:14] Speaker 01: Your position is, well, if you look at the plain text of those terms, they're not limited to discretionary relief. [00:21:18] Speaker 01: They extend beyond that. [00:21:20] Speaker 01: And I guess my question is, is there any other provision that you're aware of in which this same dynamic comes into play, which is that it's true that it doesn't involve discretionary relief, but it's still a decision or action that's subject to discretion and therefore outside the bounds of judicial review. [00:21:39] Speaker 05: A two-part answer, just quickly, 1252 also has this word authority. [00:21:46] Speaker 05: So it's not just discretionary decisions or actions. [00:21:49] Speaker 05: It's the authority to take that decision or action is specified to be in the discretion of the agency, just to clarify that point. [00:21:56] Speaker 05: In terms of the point of the title, we've already addressed why we don't think the title is controlling, but we also note that [00:22:03] Speaker 05: 1252, the overall title of it speaks of review of orders of removal. [00:22:09] Speaker 05: And yet, if you look at the text of 1252, it includes a number of types of situations that are not bound, that don't arise in the context of orders of removal. [00:22:22] Speaker 05: The overall title is Judicial Review of Orders of Removal. [00:22:26] Speaker 05: But the text expands that in other contexts. [00:22:31] Speaker 05: And that's why, [00:22:33] Speaker 05: This is particularly not a persuasive clue as to the meaning of what Congress intended in this particular context. [00:22:43] Speaker 05: And I would also note that immigration law is different from some other areas of law in that sometimes Congress speaks to a particular [00:22:53] Speaker 05: a comprehensive reform that is either not amended or amended once to address a particular loophole. [00:23:01] Speaker 05: But that's not how immigration laws developed. [00:23:04] Speaker 05: That's not how the INA has developed. [00:23:07] Speaker 05: It was drafted and enacted in 1952. [00:23:11] Speaker 05: And then it's been amended in a piecemeal manner. [00:23:15] Speaker 05: So there are [00:23:18] Speaker 05: The titles don't necessarily match up with all the text that's underneath the matter. [00:23:24] Speaker 05: And moreover, just generally, and I see my time has expired, so I'll wrap up on this thought. [00:23:29] Speaker 05: The titles, by their nature, tend to be summaries and therefore can be under-inclusive in that they don't address every term or condition or every qualifier. [00:23:40] Speaker 01: Right. [00:23:40] Speaker 01: So let me just try one more time. [00:23:43] Speaker 01: Maybe I'm not articulating this correctly, but let's just suppose, let's just assume for present purposes, I don't doubt anything you're saying about the persuasive force of a title. [00:23:51] Speaker 01: So I take the point on that. [00:23:55] Speaker 01: My question is just a practical one. [00:24:00] Speaker 01: For this provision that deals with revocations under 1155, the government's argument that it's immune from judicial review is that it's a decision or action of the, and then go on under Roman at two. [00:24:13] Speaker 01: And the other side says, well, wait a minute. [00:24:16] Speaker 01: This whole provision is about discretionary relief. [00:24:19] Speaker 01: This particular decision or action doesn't have anything to do with discretionary relief. [00:24:23] Speaker 01: And my only question is, [00:24:25] Speaker 01: Is there any other example of a situation that you're aware of as a government in which you would say this too, like an 1155 revocation is a decision or action, the authority for which is specified to be within the secretary's discretion and therefore immune from the judicial review, even though it doesn't involve the grant or denial of discretionary relief. [00:24:49] Speaker 01: It may not be, it just may be that there isn't any other one. [00:24:52] Speaker 01: I'm just curious to know whether you're aware of any other [00:24:55] Speaker 01: decision or action that brings this issue into play? [00:24:58] Speaker 05: The one partial answer I can come up is, if you look at, and it appears in subsection one, it's 1255 is adjustment established, the granting of a green card. [00:25:09] Speaker 05: Certainly there's discretion involved, but would we describe, and I agree that a green card is a benefit, [00:25:18] Speaker 05: in everyday language, we wouldn't call that necessarily relief. [00:25:23] Speaker 05: That's not necessarily the word we can, so that's a partial example, although not, I can't think of another one at this moment, your honor. [00:25:32] Speaker 04: Okay. [00:25:33] Speaker 04: Just one more question for me, which is probably a variation on the theme of the chief judge's first question, which is, [00:25:46] Speaker 04: On your reading of the statutes, there's a very odd disconnect between the standards on the front end for the eligibility determination, which are objective and mandatory. [00:26:08] Speaker 04: And what you say is, [00:26:11] Speaker 04: the wholly open-ended unbounded discretion to revoke. [00:26:19] Speaker 04: So let's assume hypothetically the statute, the eligibility determination, instead of saying advanced degrees, let's say it said college degrees and assume the secretary [00:26:39] Speaker 04: revokes grants of visa and then revokes it. [00:26:43] Speaker 04: And he says, I'm revoking this because you have a college degree, but I don't think that's good enough. [00:26:50] Speaker 04: I want an advanced degree. [00:26:53] Speaker 04: Would that be lawful? [00:27:00] Speaker 05: Your honor, it might not be lawful, but it also might not be reviewable in this report because [00:27:06] Speaker 05: The agency has come up with an administrative remedy for that. [00:27:11] Speaker 05: That is the remedy by regulation they've come up with is an appeal to the administrative appeals office. [00:27:17] Speaker 05: I recognize your larger point. [00:27:20] Speaker 05: Sorry. [00:27:21] Speaker 04: In other words, so I guess where I'm going with this textually is another possible reading of 1155 [00:27:30] Speaker 04: is to say good and sufficient cause doesn't just mean anything the secretary thinks, which would be a plausible reading if you just had 1155 by itself. [00:27:45] Speaker 04: But if you construe 1155 together with 1153, good and sufficient cause might mean [00:27:56] Speaker 04: secretary thinks there's a changed circumstance or the original adjudication was wrong, but he still has to measure the revocation against the substantive, judicially manageable mandatory standards of 1153. [00:28:12] Speaker 05: I think addressing your larger point is [00:28:18] Speaker 05: I recognize that an agency is not always right, that agencies do make mistakes. [00:28:26] Speaker 05: I get your point on that. [00:28:28] Speaker 05: But Congress made a policy choice, whether it was a good policy choice or not, to make certain decisions not reviewable. [00:28:38] Speaker 05: 1252A2B2 applies to some set of decisions or actions. [00:28:43] Speaker 05: We can disagree as to which ones, but for the reasons we set forth, we think that 1155 falls within the scope of that. [00:28:53] Speaker 05: Obviously, there's always this argument that an agency is not correctly interpreting the statute or regulations or whatnot, but that isn't enough to overcome a bar of judicial review when Congress has spoken to it clearly. [00:29:09] Speaker 05: And this court has already found that 1252A2B2 is such a bar. [00:29:17] Speaker 01: Okay, let me make sure my colleagues don't have additional questions for you, Mr. Goldsmith. [00:29:21] Speaker 01: Thank you. [00:29:22] Speaker 01: Mr. Forney will give you two minutes for your bottle. [00:29:28] Speaker 02: Thank you. [00:29:28] Speaker 02: Let me just address the two hypotheticals that your honors put forward. [00:29:39] Speaker 02: a remand from a court or a court indicating that the initial approval denial was incorrect. [00:29:46] Speaker 02: It's just a type of absurd situation that is actually permitted by allowing complete impunity with the Secretary of Homeland Security and not allowing for judicial review in this context. [00:29:59] Speaker 02: And the response that my learning opposing counsel made, I think, [00:30:04] Speaker 02: punctuates that point because if they just simply revoke then say, okay, we'll find our denial was wrong. [00:30:11] Speaker 02: We'll prove it and now we'll immediately turn around and revoke. [00:30:15] Speaker 02: His response doesn't make much sense because the government would actually argue that no, it's a revocation. [00:30:20] Speaker 02: You can't walk beyond the face of the documents. [00:30:23] Speaker 02: Revocation falls within 1155, no review. [00:30:27] Speaker 02: This is exactly the reason why there is a presumption of judicial review to avoid this type of administrative caprice. [00:30:36] Speaker 02: And then I think a point that's been missed and I do want to emphasize this it's in our briefs, but I don't want to make sure it's lost. [00:30:45] Speaker 02: is that the Board of Immigration Appeals has historically viewed 1155 as importing substantive standards from 1154 and 1153 that govern petition adjudications. [00:31:00] Speaker 02: And some courts have dismissed that by saying, well, it doesn't matter because Congress apparently didn't know of the BIA's decision. [00:31:08] Speaker 02: I think that misses the larger point because Congress specifically said by statute that the attorney general's decisions of law are controlling [00:31:16] Speaker 02: Attorney General's delegate in this case has had a long-standing interpretation to import judicial standards, excuse me, substantive standards into 1155. [00:31:25] Speaker 02: And that point cannot be missed. [00:31:27] Speaker 02: It has to be incorporated in there. [00:31:28] Speaker 02: That's what Congress wanted. [00:31:31] Speaker 01: Thank you, counsel. [00:31:32] Speaker 01: Thank you to both counsel. [00:31:33] Speaker 01: We'll take this case under submission.