[00:00:00] Speaker 00: Case number 21-5282, CSL Plasma Ink et al, the balance, versus United States Customs and Border Protection, and Chris Magnus, Commissioner, U.S. [00:00:12] Speaker 00: Customs and Border Protection. [00:00:14] Speaker 00: Mr. Wise, for the balance, Mr. Yellen, for the appellees. [00:00:19] Speaker 00: Good morning. [00:00:20] Speaker 04: Council, you may proceed. [00:00:23] Speaker 01: Thank you, Your Honor. [00:00:25] Speaker 01: Baruch Weiss from Arnold and Porter representing the Plasma Collection Centers, CSL, Bering, and Griffles. [00:00:32] Speaker 01: These are international companies with subsidiaries in the US that have set up these collection centers throughout the United States, but especially on the Mexican border. [00:00:41] Speaker 01: The court knows we are here to appeal the decision of the district court, which dismissed our complaint on zone of interest grounds. [00:00:51] Speaker 01: The Plasma Collection Centers had filed a complaint [00:00:55] Speaker 01: challenging the plasma collection ban that had been implemented by CBP back in June, a ban which had significantly exacerbated the already pre-existing pandemic shortage of blood plasma in this country. [00:01:11] Speaker 01: And the judge below dismissed the case on zone of interest grounds. [00:01:17] Speaker 01: finding that only American workers, but not American businesses, fell within the zone of interest. [00:01:25] Speaker 01: And since we were an American business, we could not bring this complaint. [00:01:29] Speaker 01: That is not the issue before this court. [00:01:32] Speaker 01: The reason it is not the issue before this court is on appeal. [00:01:35] Speaker 01: The government has conceded what it did not concede below, which is that some American businesses do fall within the zone of interest of the B-1 statutory provision of the Immigration and Nationality Act, [00:01:48] Speaker 01: And we, of course, are a business. [00:01:49] Speaker 01: So the issue now before the court is whether we, our businesses, fall within the zone of interest or not. [00:01:59] Speaker 01: More specifically, the government's position is that not every business falls within the zone of interest, but you have to be a business with an international nexus. [00:02:10] Speaker 01: And so the issue on appeal, which is now different than the issue before the district court, is whether or not [00:02:16] Speaker 01: fall within the zone of interest such that you can bring a lawsuit challenging this ban? [00:02:20] Speaker 01: If you're a business, do you have to demonstrate an international nexus? [00:02:25] Speaker 01: Or can any business bring this kind of lawsuit to challenge this sort of plasma collection ban? [00:02:35] Speaker 05: Mr. Rice, do we have to determine that any business could challenge this type of ban? [00:02:40] Speaker 05: I mean, even if we reject the government's sort of narrow international nexus test, is the only other alternative for us to conclude that any business can challenge this? [00:02:52] Speaker 01: No, I don't think you'd have to. [00:02:54] Speaker 01: We'd have to say that any business can. [00:02:56] Speaker 01: In this case, I think it's easy if you part with the international nexus. [00:03:04] Speaker 01: And I think it's very easy to say on the facts of this case, these businesses can bring this down. [00:03:09] Speaker 01: These businesses have invested millions and millions of dollars at the border to collect plasma from Mexican donors who crossed the border and have been crossing the borders for decades to donate as part of a procedure by which they get the funding. [00:03:24] Speaker 01: And we, by the way, disagree with the factual conclusion the government draws that we lack an international nexus. [00:03:31] Speaker 01: Our view is that an international nexus is not [00:03:34] Speaker 01: that we have a very sufficient state to meet the zone of interest and the alignment of interest that Supreme Court talks about in Patch Act. [00:03:43] Speaker 01: We also say that even if the court were to disagree with it, and even if the court were to adopt the position of the government, we have the international nexus that is required. [00:03:55] Speaker 01: I don't think the court has to reach the question of whether, say, a business far away from the border in North Dakota that lost [00:04:04] Speaker 01: a sale of a candy bar because a Mexican was not allowed in would have the zone of interest that would be appropriate. [00:04:10] Speaker 01: So I don't think you have to reach that question. [00:04:13] Speaker 01: I think we're an easy case once you dispense with the international nexus, given the huge amount of money, expenditure, employment, effort that they put in to collect plasma. [00:04:25] Speaker 04: So is your argument in part that [00:04:29] Speaker 04: As to that legal question, there are no disputed facts, so there's no reason to send this back to the district court, because normally if the government has conceded something but it says there's another ground for affirming, the court might get to that. [00:04:51] Speaker 04: Understanding that issue. [00:04:53] Speaker 01: The government said that even if [00:04:56] Speaker 01: it loses on the zone of interest, you can affirm on the merits. [00:04:59] Speaker 01: That was the argument that the government made in its appellate read. [00:05:03] Speaker 01: What I'm suggesting to the court today is the issue that we're only focusing for a moment on the zone of interest, not even reaching the merits, which the court said you could reach on appeal. [00:05:14] Speaker 01: There is a pure legal issue. [00:05:16] Speaker 01: And the pure legal issue is this. [00:05:18] Speaker 01: When Congress used the word business in the relevant statute, in the B-1 statutory provision [00:05:25] Speaker 01: Nationality Act. [00:05:27] Speaker 01: When Congress said business, did it mean business? [00:05:31] Speaker 01: Or did it mean, well, business except if it has an international nexus? [00:05:37] Speaker 01: That's a purely legal question, Your Honor, which I think you could determine on appeal. [00:05:42] Speaker 01: And there's no need to remand to the district court to determine that purely legal question. [00:05:47] Speaker 01: And that is a question which we think is easily answered with the answer that [00:05:55] Speaker 01: Business means exactly what you think it means. [00:05:58] Speaker 01: It does not have this different, special, unusual meaning that is imposed on it by the government. [00:06:08] Speaker 01: And we say that. [00:06:09] Speaker 01: Yes, sir. [00:06:10] Speaker 02: You're saying that if we agreed with you that assuming such a record nexus is required, you meet that. [00:06:22] Speaker 02: that, in other words, the import of the word business does not carry along. [00:06:26] Speaker 02: And if it does, you meet the requirement. [00:06:28] Speaker 02: But that could be the predicate for deciding not just that you are within the zone of interest, but rather that merits are to be resolved. [00:06:39] Speaker 01: Well, that is a good question, Your Honor. [00:06:41] Speaker 01: Normally, the zone of interest analysis and the merits are two entirely separate analyses. [00:06:47] Speaker 01: And they were entirely separate in the district court. [00:06:49] Speaker 01: In the district court, the analysis was [00:06:52] Speaker 01: on the zone of interest, is it just American laborers or workers who can do it? [00:06:57] Speaker 01: And on the merits, the discussion didn't focus so much on the word business. [00:07:03] Speaker 01: It focused on a different word in the statute on the word labor. [00:07:06] Speaker 01: The statute says you can come in for business unless it's labor. [00:07:10] Speaker 01: The statute says we want to open our doors for business, but we want to protect at the same time our local workers. [00:07:17] Speaker 01: And so in the district court, those were two distinct arguments. [00:07:21] Speaker 01: We talked about American workers as whether they can bring in also as the zone of interest. [00:07:26] Speaker 01: And then we talked about the question of whether donating plasma is labor on the part of Mexican donors. [00:07:32] Speaker 01: We said, or possibly it's not labor. [00:07:34] Speaker 01: You sit in a chair. [00:07:35] Speaker 01: The labor is done by the employees of the collection center who take it. [00:07:40] Speaker 01: But now on appeal, I think you're right, Your Honor. [00:07:43] Speaker 01: There is a convergence of the two normally distinct principles. [00:07:48] Speaker 01: The zone of interest, which takes up the question of whether or what does business mean, is also an important question in determining, once we bring this law suit, once we're allowed to bring this law suit, whether on the merits, the government is right or wrong. [00:08:04] Speaker 01: And so there is- And that's the merits of what? [00:08:06] Speaker 01: The merits of your motion for a preliminary injunction? [00:08:11] Speaker 01: The legal merits of our interpretation of the Immigration and Nationality Act, which is a predicate for the preliminary injunction. [00:08:19] Speaker 01: You have other showings to make. [00:08:23] Speaker 01: Yes. [00:08:24] Speaker 01: If we want preliminary injunction, we have to show public interest, which we think we've shown, given the shortage that it's exacerbated in the desperate need. [00:08:32] Speaker 02: We also have to show probability of success on the merits, and that's where this would tend to overlap. [00:08:38] Speaker 01: That's exactly right. [00:08:39] Speaker 01: Yes. [00:08:40] Speaker 01: That's where it would overlap. [00:08:41] Speaker 01: So, for example, if you were to rule [00:08:44] Speaker 01: that business means what Congress said it was. [00:08:48] Speaker 01: And Congress just used the word business. [00:08:50] Speaker 01: The regulation said it means activities of a commercial or professional nature. [00:08:56] Speaker 01: We think this is of a commercial nature because the Mexican comes in to donate for the $50. [00:09:00] Speaker 01: That sounds like very much a commercial transaction. [00:09:02] Speaker 01: I don't think the government contests that. [00:09:05] Speaker 01: I'm sure the government does not contest that. [00:09:07] Speaker 01: So if you reject their effort to inject [00:09:10] Speaker 01: the international nexus element here, then you've already disposed of a significant chunk of the merits, and when I say merits, I mean the interpretation of the Immigration and Nationality Act provision that's central to this case. [00:09:27] Speaker 01: As it bears on your application. [00:09:29] Speaker 01: Correct. [00:09:30] Speaker 01: Now, there are other parts of that statute that need to be interpreted, too, when it makes an exception for labor. [00:09:36] Speaker 01: when it says business can come in, but not if you're going to engage in labor. [00:09:41] Speaker 01: When CBP announced the plasma collection ban, they didn't rely on the word business. [00:09:45] Speaker 01: They relied on the word labor. [00:09:47] Speaker 01: And they said, oh, these are laborers. [00:09:48] Speaker 01: And they're coming in to engage in employment and labor in the United States by donating their blood. [00:09:54] Speaker 01: The government on appeal does not claim that that interpretation ties into the zone of interest test. [00:10:00] Speaker 01: So that would be an analysis that would be done on the merits. [00:10:04] Speaker 01: The government claims that it's the business word that serves the operative gatekeeper in determining the zone of interest. [00:10:11] Speaker 01: And so that's why I'm addressing my argument to government, to business, but I'm happy to talk about labor too, because the statute says business yes, labor no, and we think we are business, we think we are not labor, and therefore that we fit squarely in the terms of the statute. [00:10:27] Speaker 05: I will ask this to the government as well, but I mean, are there any other places where does the government find this international nexus test? [00:10:34] Speaker 05: I mean, is it just in this litigation? [00:10:37] Speaker 05: Is it in any other regulations? [00:10:39] Speaker 01: I want to address that. [00:10:41] Speaker 01: Let me if the court for me, I want to first talk about where it's not down in order to show where it is. [00:10:46] Speaker 01: It's not found in the statute. [00:10:48] Speaker 01: The statute doesn't say it. [00:10:50] Speaker 01: It's not found in the regulation when the regulation talks about business. [00:10:55] Speaker 01: The regulation, I'll say parenthetically, does use the word local in describing the labor component. [00:11:02] Speaker 01: There's no geographical qualifier with respect to business. [00:11:06] Speaker 01: The regulation says business means an activity of a professional or commercial nature. [00:11:12] Speaker 01: Then when it says not labor, it says labor means local employment or labor for hire. [00:11:18] Speaker 01: In our view, and this is going to answer your question, your honor, in a moment. [00:11:22] Speaker 01: In our view, there is no geographical analysis or international nexus analysis needed when you're looking at business. [00:11:31] Speaker 01: Statute doesn't do it, regulation doesn't. [00:11:33] Speaker 01: In some cases, but not all, the particular business may implicate labor. [00:11:37] Speaker 01: Sometimes people come in to engage in business that's not qualified. [00:11:41] Speaker 01: Some instances, yes, labor, and some instances, you can't tell. [00:11:44] Speaker 01: If it is labor or possibly labor, then you have to determine whether it's local labor under the regulation. [00:11:52] Speaker 01: Because not all labor is prohibited, only local labor, but not internationally. [00:12:00] Speaker 01: So the international comes when the cases that deal with individuals who are coming to the United States under a B1 business visa [00:12:10] Speaker 01: are engaging in something that looks a lot or might be labor. [00:12:14] Speaker 01: And then the cases say, well, this is labor. [00:12:16] Speaker 01: Is it excluded? [00:12:17] Speaker 01: But not all types of labor are excluded. [00:12:19] Speaker 01: It has to be local labor to be excluded. [00:12:22] Speaker 01: And we see this business seems to be an international business. [00:12:25] Speaker 01: So therefore, the labor done with the business really can't be characterized as local labor. [00:12:30] Speaker 05: And those are judicial opinions? [00:12:32] Speaker 01: Those are mostly BIA cases. [00:12:34] Speaker 01: Those are mostly BIA cases. [00:12:36] Speaker 01: And so when they get caught up in talking about international is when they're grappling with the very specific instance when you have business and labor. [00:12:48] Speaker 01: And since only certain types of labor prevent a barrier to qualifying to a B1, only local labor, that launches those cases [00:12:58] Speaker 01: into an analysis of whether it's internationalized. [00:13:01] Speaker 01: So for example, they ask the question, what if you're a bus driver or train conductor going from Canada to the United States? [00:13:08] Speaker 01: You're engaged in labor, but is that local labor? [00:13:12] Speaker 01: And they say, well, it's part of an international business, so it doesn't seem like local. [00:13:17] Speaker 01: And you find that analysis time and time again. [00:13:19] Speaker 02: That's not to say that I don't suppose that the VA says that therefore, [00:13:27] Speaker 02: If it's non-local labor, it has to be internationally non-local. [00:13:42] Speaker 01: Correct. [00:13:44] Speaker 01: You're right. [00:13:44] Speaker 01: But what it does say, oh, but we're looking at the labor here, and it happens to be international, and therefore it's not local. [00:13:50] Speaker 01: Right, but that's a little bit of a gap. [00:13:52] Speaker 01: Correct. [00:13:53] Speaker 01: A differential gap. [00:13:54] Speaker 01: Correct. [00:13:55] Speaker 01: But there is a lot of language in the BI cases, oh, this is international, or this is international, and therefore the B1 is OK. [00:14:05] Speaker 01: And that is where the government's mistake comes from. [00:14:09] Speaker 01: The geographical limitation is articulated only by the word local and only in conjunction with the word labor. [00:14:19] Speaker 01: The cases, the BIA cases, therefore, look at cases as local or international, and they say it's international, therefore, there's no bar to a B1 visa. [00:14:27] Speaker 01: And then the government reads those cases as saying, ah, there has to be an international nexus. [00:14:33] Speaker 01: That's where it comes from. [00:14:35] Speaker 01: And what are the BIA cases to us? [00:14:38] Speaker 01: What are the BIA cases to you? [00:14:40] Speaker 01: Well, the government... Informative, perhaps? [00:14:43] Speaker 01: The government, at some point in time, tries to argue that they're entitled to a certain amount of deference. [00:14:48] Speaker 01: In this case, I don't think so. [00:14:52] Speaker 01: I mean, these are pure determinations of law. [00:14:55] Speaker 01: They are not like promulgating a regulation, for example. [00:14:58] Speaker 01: So the government cites them. [00:15:01] Speaker 01: I don't criticize the government for citing them. [00:15:05] Speaker 01: I might criticize the government for misinterpreting them. [00:15:08] Speaker 02: So why is the case raising a similar issue for the BIA rather than the district court? [00:15:15] Speaker 01: Why does it? [00:15:16] Speaker 01: Well, the BIA will typically get a case when it's determining a case of a particular alien who's challenging something with his visa, like an exclusion proceeding. [00:15:28] Speaker 01: But here, we are representing American subsidiaries of these international businesses. [00:15:34] Speaker 01: And our remedy is to challenge it under the APA in court. [00:15:39] Speaker 01: I might add, of course, the court needs to take in mind, which the court knows, the very pro-plaintiff [00:15:45] Speaker 01: zone of interest standard. [00:15:47] Speaker 01: In other words, we have to be arguably right. [00:15:50] Speaker 01: The Supreme Court said that. [00:15:52] Speaker 01: It's presumptively reviewable. [00:15:57] Speaker 01: This is all language from the court. [00:15:59] Speaker 01: The benefit of the doubt goes to the plaintiff here. [00:16:02] Speaker 01: It is not designed to keep cases from being reviewed. [00:16:05] Speaker 01: And I would add, [00:16:06] Speaker 01: that, by the way, an adverse ruling to, and then there's the language of the APA, which says, are you adversely aggrieved? [00:16:14] Speaker 01: Are you aggrieved or adversely affected? [00:16:16] Speaker 01: We are aggrieved and adversely affected. [00:16:19] Speaker 01: This has caused us a significant loss of business and a significant inability to live up to the requirements that we have in terms of the blood plasma supply, which it was a very serious shortage resulting from the pandemic. [00:16:34] Speaker 01: It was about a 20%. [00:16:36] Speaker 01: the client because of the pandemic. [00:16:37] Speaker 01: And this has now come and exacerbated. [00:16:39] Speaker 01: This is yet another shortage on top of the prior shortage. [00:16:44] Speaker 02: Do we know whether the employees of your clients have been laid off as a result of the ban? [00:16:51] Speaker 01: So I do know the answer to that, Your Honor. [00:16:54] Speaker 01: And the reason I know the answer to that is after Judge Chutkin dismissed our case and we appealed to this court, reading her opinion, [00:17:05] Speaker 01: We filed another complaint with plaintiffs who are individuals, which include employees of the plasma collection centers, include donors, individual donors. [00:17:17] Speaker 01: She said it was individuals, and we found individuals who were very interested in challenging plasma collection ban, and we brought a second lawsuit. [00:17:27] Speaker 02: So the consequence of the [00:17:30] Speaker 02: Plasma ban and the court's decision together is to disemploy. [00:17:37] Speaker 01: Right. [00:17:38] Speaker 01: There are there are many American workers. [00:17:40] Speaker 01: We are going to. [00:17:42] Speaker 01: This is a protection that they didn't really make. [00:17:44] Speaker 01: Correct. [00:17:46] Speaker 01: Yes. [00:17:47] Speaker 01: We leave as part of the record there to demonstrate standing and so on. [00:17:52] Speaker 01: We've explained how because the Mexicans are such a significant percentage of the donors that we are have to we may have to close down a significant number of the sites and lay off a significant number of the workers. [00:18:05] Speaker 01: And so what is this asthma ban done? [00:18:08] Speaker 01: It's heard us from a public health perspective. [00:18:10] Speaker 01: It's hurt us from an employment perspective. [00:18:13] Speaker 01: It's hurt us from an economic perspective, because the Mexicans who cross the border would get this $50, and they would, for the $50, they would make purchases on the American side of the border. [00:18:23] Speaker 01: And it has significantly hurt the economies of the border communities where we're built. [00:18:28] Speaker 01: They don't have staff. [00:18:30] Speaker 01: They're not part of this lesson. [00:18:31] Speaker 01: That's not an issue that you have to reach. [00:18:34] Speaker 01: But it is relevant, Your Honor, on the preliminary injunction when you consider [00:18:37] Speaker 01: the public interest in the issuance of a general. [00:18:40] Speaker 01: You'll have to check that just. [00:18:41] Speaker 01: Correct. [00:18:42] Speaker 01: Correct. [00:18:43] Speaker 01: But I'm saying it's not entirely relevant to the case, maybe irrelevant to the issuance to this particular. [00:18:50] Speaker 01: I see that I've run out of time. [00:18:52] Speaker 01: I was going to catalog all the other reasons why there is no international nexus. [00:18:57] Speaker 01: Are they all in your brief? [00:18:59] Speaker 01: You can rely on the brief, or I still have three minutes. [00:19:01] Speaker 01: Maybe I'll have an opportunity to address that. [00:19:03] Speaker 01: Thank you. [00:19:05] Speaker 04: All right. [00:19:05] Speaker 04: We'll hear counsel for Apple. [00:19:18] Speaker 03: Good morning, Your Honors. [00:19:19] Speaker 06: May it please the court. [00:19:20] Speaker 06: I'm Louis Yellen from the Department of Justice. [00:19:22] Speaker 06: I'm here today on behalf of U.S. [00:19:24] Speaker 06: Customs and Border Protection. [00:19:26] Speaker 02: You're welcome to remove your mask if you want. [00:19:29] Speaker 06: Thank you, Your Honor. [00:19:31] Speaker 06: If it's okay with the court, I'll retain it. [00:19:33] Speaker 02: As long as we can hear you. [00:19:34] Speaker 06: Yes, Your Honor. [00:19:34] Speaker 06: If you have trouble, please, of course, do let me know. [00:19:37] Speaker 06: There are three issues that came up in the court's colloquy with the Plasma Company's counsel that I'd like to address. [00:19:45] Speaker 06: The focus of the inquiry whose activity is at issue, the question that Judge Rao asked about the basis of the international nexus test, and the deference point that the court asked. [00:19:58] Speaker 06: To begin, the focus of the inquiry in determining whose activity is relevant [00:20:03] Speaker 06: is the non-citizen. [00:20:05] Speaker 06: The statute authorizes visas for non-citizens visiting the United States temporarily for business. [00:20:13] Speaker 06: So the question is whether or not it's the alien who is engaging in business, not whether or not a third party down the line has some international business, but whether the alien, him or herself, is engaging in business. [00:20:30] Speaker 02: If the council for the appellants is correct that there's a commercial transaction here, then both are engaged in business. [00:20:39] Speaker 02: Then both parties to a commercial transaction are engaged in business. [00:20:42] Speaker 06: We're not disputing that it's a commercial transaction, Your Honor. [00:20:44] Speaker 06: The question is whether or not that transaction has a connection to international. [00:20:49] Speaker 02: Okay, so you're saying it's business. [00:20:51] Speaker 06: It's business, but it's not international. [00:20:53] Speaker 06: Yes, Your Honor. [00:20:54] Speaker 06: Now, the reason that we know that [00:20:57] Speaker 06: It's the employee, or excuse me, the alien, the non-citizens activity that's the focus. [00:21:05] Speaker 06: The matter of G case from the Board of Immigration Appeals, which we cite at 40, I think provides a very clear example. [00:21:12] Speaker 06: Because in that case, the Canadian company, the employer, was unambiguously engaged in international commerce. [00:21:19] Speaker 06: Yet the board held that the non-citizens activity was not business for purposes of the B-1 statute. [00:21:27] Speaker 06: I can explain some of the details. [00:21:29] Speaker 02: At which page was that? [00:21:30] Speaker 02: What was the? [00:21:31] Speaker 06: The matter of G at page 40 of our book. [00:21:33] Speaker 02: So what was that person doing? [00:21:35] Speaker 06: So this was an employee of Ford Canada who lived in Canada. [00:21:39] Speaker 02: So he had a job. [00:21:41] Speaker 06: He had a job. [00:21:43] Speaker 06: But again, Your Honor, the reason that this case is important is it demonstrates that the focus is on the non-citizens activity, not the company's activity. [00:21:51] Speaker 02: That's clear. [00:21:52] Speaker 02: Okay. [00:21:52] Speaker 02: I mean, in the sense that you have to enter to qualify for the B visa, right? [00:21:58] Speaker 06: But the question I'm trying to address, Your Honor, is whether or not the non-citizens activity must be international or whether the companies is sufficient. [00:22:09] Speaker 06: Opposing counsel referred to the fact that the companies are international, engage in international problems. [00:22:14] Speaker 02: So there's a case involving the sale of vegetables. [00:22:18] Speaker 06: Yes, Your Honor. [00:22:18] Speaker 02: So the vegetables are grown across the border, brought in and sold, and the person on their proceeds go home. [00:22:26] Speaker 06: Yes, your honor. [00:22:27] Speaker 02: How is that different than coming here selling the plasma? [00:22:30] Speaker 06: The difference, your honor. [00:22:32] Speaker 06: The difference, your honor, is that there is a commercial undertaking in Mexico or in Canada. [00:22:39] Speaker 06: That is, in all of the cases in which the Board of Immigration Appeals held that that activity was incident to international commerce, the board determined that most of the employment was in Canada, that there was a commercial activity in Canada [00:22:55] Speaker 06: And that the activity in the United States was the non-citizens extension of that commercial activity across the border. [00:23:04] Speaker 06: In the case of donors of plasma, sellers of plasma, the sellers of plasma are not engaged in a commercial activity in Mexico with regard to the plasma. [00:23:13] Speaker 06: They don't have a business selling plasma. [00:23:16] Speaker 06: They just come to the United States. [00:23:18] Speaker 05: And they sell their plasma here. [00:23:20] Speaker 05: That's the only commercial. [00:23:21] Speaker 05: Is that different from growing vegetables, say, in your own personal garden, right? [00:23:26] Speaker 05: I mean, you know, your body produces plasma. [00:23:28] Speaker 05: Maybe you, you know, maybe you grow zucchinis in your garden. [00:23:31] Speaker 05: In both instances, you take them across the border and sell them. [00:23:35] Speaker 06: There is no case that's held that this example of growing vegetables in your garden would be sufficient. [00:23:40] Speaker 06: and it would be inconsistent with the board decisions to say that that would be sufficient. [00:23:45] Speaker 05: So maybe take a step away from the BIA decisions and can you tell me based on the statute and the regulations where this international nexus test comes from, where the business [00:23:56] Speaker 05: Asked to have an international nexus. [00:23:59] Speaker 06: I certainly will, Your Honor. [00:24:00] Speaker 06: Let me preface my answer by saying the Supreme Court has recognized in Aguirre Aguirre that the Board of Immigration Appeals interpretations of the statute are entitled to Chevron. [00:24:11] Speaker 06: So at least as a merits question, the board's interpretations actually do govern here. [00:24:17] Speaker 05: But responding- Well, they govern here if the statute is ambiguous. [00:24:21] Speaker 05: I mean, Chevron deference doesn't mean to just defer to the BIA. [00:24:25] Speaker 06: Since 1929 in the Carnot statute, the Supreme Court has recognized that the term business is ambiguous. [00:24:32] Speaker 06: It deferred to applicable regulations interpreting that statute. [00:24:36] Speaker 06: Similarly here- Different statute. [00:24:39] Speaker 06: I beg your pardon, Your Honor. [00:24:41] Speaker 06: Yes, exactly right. [00:24:42] Speaker 06: The predecessor to this, it had the same relevant language. [00:24:46] Speaker 06: It's the origin of the statute that is at issue in this case. [00:24:52] Speaker 06: But now directly answering Your Honor's question. [00:24:55] Speaker 06: You can tell from the context of the statute itself that the activity in B1 is not purely domestic commercial activity. [00:25:05] Speaker 06: It has to be. [00:25:06] Speaker 06: There are numerous other provisions in 1101A15 that highly regulate domestic business activity. [00:25:14] Speaker 06: And if business meant anything other than labor, as opposing counsel suggests, all of these provisions would be superfluous. [00:25:23] Speaker 06: We cite them on page 28. [00:25:25] Speaker 06: I'm happy to go through any of them. [00:25:28] Speaker 06: But if I might point out one, that's a particular salience. [00:25:32] Speaker 04: Can I just ask you a preliminary question? [00:25:34] Speaker 04: The way you describe the BAIA cases in Canada and Mexico, as I understood your explanation, you said most of the company's activity is not international, suggesting to me that, well, that isn't a disqualifying requirement. [00:26:01] Speaker 06: Your Honor, if I said that, I misspoke. [00:26:04] Speaker 06: What did they say? [00:26:05] Speaker 04: It has to be. [00:26:06] Speaker 06: They said that the non-citizens activity had to be international. [00:26:13] Speaker 06: That is, the focus was on the status of the non-citizens activity. [00:26:16] Speaker 04: I know, but what I'm trying to understand is we have this statute and somebody who otherwise lives in Mexico has an opportunity [00:26:31] Speaker 04: only to come to this country to give us blood and then gets paid for it and goes home. [00:26:40] Speaker 04: So you're saying even the association with a commercial activity in this country is not enough because the farmer or the Mexican citizen is not bringing his own vegetables in. [00:26:56] Speaker 04: He's latching on to [00:27:01] Speaker 04: a company's activity in this country that also has international aspects. [00:27:09] Speaker 04: Has the BIA ever dealt with that kind of situation? [00:27:14] Speaker 06: Yes, Your Honor, the matter of G case I previously referenced. [00:27:17] Speaker 04: I know that's a Canadian case, all right? [00:27:20] Speaker 04: And I understand the distinction, but I'm not sure. [00:27:25] Speaker 04: I mean, you likely read it more carefully than I, but I didn't understand them to say, absent that, you know, it wasn't as hard and fast a rule. [00:27:37] Speaker 04: Maybe I misunderstood. [00:27:39] Speaker 06: I'm sorry, you're right. [00:27:41] Speaker 06: There is not a board of immigration appeals case which holds that the alien non-citizens conduct in the United States is the one conduct in virtue solely of the company's international activities. [00:27:57] Speaker 04: So the BIA has not decided that question? [00:28:00] Speaker 06: No, the BIA quite the reverse has held that it must be the non-citizens conduct in the United States. [00:28:08] Speaker 06: That must be a necessary incident of international commerce. [00:28:11] Speaker 06: That this is the G case. [00:28:13] Speaker 04: No, but I understand that. [00:28:14] Speaker 04: But another way of looking at the facts here would be that, and I'm not saying this is the way the BIA would do it, but I just want to be clear about it, is the only reason a Mexican person is coming [00:28:31] Speaker 03: for this short period of time is to engage in a commercial activity of a US business. [00:28:48] Speaker 06: That's right, Your Honor. [00:28:49] Speaker 06: It's to get paid by a U.S. [00:28:51] Speaker 06: business. [00:28:52] Speaker 06: And the relevant question under B-1 is whether getting paid for the activity that the Mexican national is undertaking in the United States is business within the meaning of the statute at issue here. [00:29:06] Speaker 04: Now, I understand that, but I'm just trying to be clear that when Congress was talking about all of these other interests it was protecting, [00:29:18] Speaker 04: I mean, arguably, any US citizen could contribute plasma too. [00:29:24] Speaker 04: But they're not interested in doing so, apparently, for the amount of money this company is willing to pay. [00:29:30] Speaker 04: But there are other people who are. [00:29:34] Speaker 04: So the only way for this company to avoid a problem is to set up a center in Mexico. [00:29:44] Speaker 06: Your honor, there might be other avenues that are available. [00:29:47] Speaker 04: Well, for example, if it's set up centers in Mexico. [00:29:52] Speaker 06: I think there might be legal impediments to that in Mexico. [00:29:56] Speaker 06: I believe that selling plasma in Mexico is not permitted. [00:30:00] Speaker 06: That is selling, commercially selling plasma. [00:30:03] Speaker 04: So this company simply can't deal in North America. [00:30:09] Speaker 06: No, Your Honor, the only question is whether the current visa permits this sort of activity. [00:30:16] Speaker 06: We're not taking a position on whether there are other mechanisms by which Mexican nationals could come into the United States. [00:30:22] Speaker 06: The only question that we're addressing is whether this particular visa provision authorizes that. [00:30:28] Speaker 04: No, I understand that. [00:30:29] Speaker 04: But I'm just trying to understand how, I mean, this is such an odd situation. [00:30:37] Speaker 04: And that's what I'm trying to understand the agency's position, much less the government's position on appeal as opposed to where it was in the district court. [00:30:49] Speaker 04: And that almost makes me say, well, let's send it back to the district court and let it sort all of this out. [00:30:56] Speaker 06: Respectfully, Your Honor, and I could address this in a moment, the government's position did not radically change in the way that Plasma Company Councils suggested. [00:31:04] Speaker 04: Well, I think you haven't contested the fact that you have taken a different position, at least in part. [00:31:12] Speaker 04: I didn't think that was a dispute. [00:31:15] Speaker 04: Your Honor, we only had one filing in the district court, and that filing addressed- I don't care how many filings, but the point is you made one representation in the district court. [00:31:26] Speaker 04: And your brief before us has qualified that somewhat. [00:31:32] Speaker 04: I didn't think that was in dispute. [00:31:35] Speaker 06: I think it's not critical, Your Honor. [00:31:37] Speaker 06: Respectfully, that's not how we view our filing below. [00:31:40] Speaker 06: But I don't think since we're at the police. [00:31:42] Speaker 04: Well, let me put it this way. [00:31:43] Speaker 04: Reading the district court's opinion, I didn't see any indication that she thought that argument was before her. [00:31:49] Speaker 04: Now, maybe I'm wrong. [00:31:51] Speaker 06: That may well be true, Your Honor. [00:31:54] Speaker 06: If I might get back to the subsection that I thought was helpful. [00:31:58] Speaker 04: Right, yes. [00:32:00] Speaker 06: I do have a, I have a question. [00:32:02] Speaker 06: Um, Mr. Allen, I mean, do you agree? [00:32:03] Speaker 04: Did I just have him finished? [00:32:05] Speaker 06: I'm sorry. [00:32:05] Speaker 06: I'm sorry, I didn't. [00:32:07] Speaker 04: Or was he finished? [00:32:08] Speaker 06: I was finished, Judge Rogers, unless you had further question for me. [00:32:12] Speaker 04: I apologize. [00:32:12] Speaker 04: No, I thought you wanted to get back to the subsection. [00:32:14] Speaker 04: Did you have something else to argue? [00:32:16] Speaker 04: Oh, I did. [00:32:16] Speaker 04: This was in response to Judge Rouse earlier. [00:32:20] Speaker 06: Thank you, Your Honor. [00:32:21] Speaker 06: Would you like me to refer to that, or do you want me to take your question now, Judge Rao? [00:32:25] Speaker 05: I guess I'm wondering if you disagree with Mr. Weiss's characterizations of the BIA decisions. [00:32:33] Speaker 05: He suggests that the international component has been discussed in the BIA opinions [00:32:40] Speaker 05: with respect to labor, not with respect to business. [00:32:43] Speaker 05: And so I'm wondering, I am not an expert in BIA decisions in this area. [00:32:47] Speaker 05: Maybe I will have to become one, but I'm wondering how you would characterize that. [00:32:51] Speaker 06: I think that is plainly incorrect, Your Honor. [00:32:53] Speaker 06: I would suggest the court look at the [00:32:56] Speaker 06: excuse me, one GERA decision. [00:32:59] Speaker 06: It was a Third Circuit decision analyzing a BIA decision, which involved a company that was created by a Kenyan national who was selling goods in the United States. [00:33:11] Speaker 06: The Neil decision involved a engineer providing engineering services in the United States. [00:33:18] Speaker 06: These are all things that could be classified as business in a broad sense. [00:33:23] Speaker 06: Getting back to the statutory question, though, that Judge Rao asked earlier, if the court looked at A15E, A15E is a provision that authorizes a visa for someone to come, a non-citizen to come to the United States to develop or direct the operations of an enterprise in which the non-citizen has substantially invested. [00:33:44] Speaker 06: But there's a qualification. [00:33:46] Speaker 06: That activity is permitted only if there is a reciprocal treaty between the United States and the foreign state of that non-citizens nationality permitting that business activity. [00:33:59] Speaker 06: If business meant what the plasma company council says it meant, then that same non-citizen could come in under a B visa and engage in that very activity without the qualification. [00:34:13] Speaker 06: Now, this is true of all of the provisions that we cite at page 28 of our brief. [00:34:20] Speaker 06: All of those provisions would be rendered entirely superfluous if business meant any sort of business whatsoever. [00:34:27] Speaker 06: Those are all activities involving domestic commercial conduct, which Congress has heavily regulated and provided prerequisites [00:34:37] Speaker 06: And for that reason, because Congress has heavily regulated and identified the types of domestic commercial activity in which non-citizens may engage in the United States, business in the B1 provision refers to business activity, commercial activity having some international connection. [00:35:00] Speaker 06: Now, on the merits, the board decisions are absolutely clear on this point. [00:35:06] Speaker 06: They talk about the need for the non-citizens activity to be a necessary, have a necessary incident to international commercial activity. [00:35:17] Speaker 06: The Hira case, which is a canon, a canonical case identifying this, [00:35:22] Speaker 06: interprets the State Department's regulation and the statute and says that the activity must be a necessary incident. [00:35:31] Speaker 06: The Neil case does the same. [00:35:33] Speaker 06: The G case, every single one of the cases that we have cited and that opposing counsel has cited refer to the need for the activity that is the non-citizens activity to have a necessary connection to international costs. [00:35:51] Speaker 06: Did I understand? [00:35:52] Speaker 02: Your answer to Judge Rao earlier about the vegetable garden and the owner bringing the vegetables for sale in the US. [00:36:04] Speaker 02: But that didn't qualify because that wasn't the vegetable gardener's business? [00:36:11] Speaker 06: Correct. [00:36:12] Speaker 06: Because the vegetable gardener was doing that as I'm assuming in this is built into the hypothetical. [00:36:19] Speaker 06: was doing it either as a hobby in Mexico or doing it purposely to raise crops and sell them only in the United States. [00:36:28] Speaker 06: In the farmer cases. [00:36:29] Speaker 02: Let's just assume not that. [00:36:31] Speaker 02: That it's a family plot and they sell locally in Mexico and then they also sell in the US at a better price perhaps. [00:36:41] Speaker 02: That would likely be permissible, Judge. [00:36:44] Speaker 06: If you look at the K and B case, which [00:36:48] Speaker 06: the plasma company site in their reply brief. [00:36:51] Speaker 06: That would be permissible if the predominant commercial activity occurs in Mexico. [00:36:56] Speaker 06: Where'd the predominance requirement come from? [00:36:59] Speaker 06: This is how the board has interpreted the term business. [00:37:03] Speaker 06: The board has said that for it to be international commerce, the majority of the work, the majority of the commercial activity has to be in the foreign state. [00:37:13] Speaker 06: And the activity in the United States has to relate to that foreign commercial activity. [00:37:19] Speaker 06: But it cannot be the predominant activity, that is, the commercial activity in the US. [00:37:23] Speaker 06: This is exactly why the Third Circuit case, the BIA held that the non-citizen was not engaged in international commerce, because there was not the international component. [00:37:35] Speaker 06: That is, there was not a Kenyan business anymore to which the commercial activity in the United States related. [00:37:42] Speaker 06: In all of the farmer cases, there are also cases involving the collection of scrap paper, cases involving the collection of firewood. [00:37:51] Speaker 06: In each of these cases, the board has determined that the predominant commercial activity was in Canada or Mexico and that the U.S. [00:38:00] Speaker 06: activity was incident to that foreign commercial activity. [00:38:04] Speaker 02: I think earlier you said necessarily [00:38:07] Speaker 06: The board has determined that the conduct, the phrase the board uses is a necessary incident to international commerce. [00:38:18] Speaker 02: Why is it necessary? [00:38:20] Speaker 02: If you couldn't sell them here, you'd have to sell them at a lower price abroad. [00:38:27] Speaker 06: You're right, Your Honor. [00:38:28] Speaker 06: I think that focuses on the wrong question with respect. [00:38:32] Speaker 06: The question is whether the activity here [00:38:35] Speaker 06: is related in a necessary way to some form of international commerce. [00:38:40] Speaker 06: So just to give one example. [00:38:41] Speaker 02: It's related. [00:38:42] Speaker 02: I don't understand how it's necessary. [00:38:44] Speaker 06: If I might give just one example. [00:38:47] Speaker 06: There are cases involving transportation of automobiles from Canada to the United States. [00:38:53] Speaker 06: The board held that unloading those automobiles [00:38:56] Speaker 06: is a necessary incident to the commercial activity of transporting them across the United States, sorry, across the international balance. [00:39:03] Speaker 06: Isn't that a question about labor, however, whether that person was performing labor? [00:39:07] Speaker 06: So labor, first I should say the regulatory term is local employment or labor for hire. [00:39:16] Speaker 06: That's a term of art. [00:39:18] Speaker 06: There's business on the one hand and local employment or labor for hire on the other hand. [00:39:24] Speaker 06: And if activity is permissible under B1, it qualifies as business, regardless of a colloquial use of the term. [00:39:34] Speaker 06: That is, it could involve labor. [00:39:35] Speaker 06: In fact, many of the cases do involve what we would commonly call labor, like truck transportation, loading and unloading, and so forth. [00:39:45] Speaker 06: Conversely, local employment [00:39:47] Speaker 06: or labor for hire is all of the impermissible activity, but that could include things that we do not look really call labor. [00:39:54] Speaker 06: For example, engineering, providing engineering services. [00:39:58] Speaker 06: It's a form to use the statutory term of skilled labor. [00:40:04] Speaker 06: But to be clear, these are terms of art. [00:40:06] Speaker 06: And I think it's quite important that the court not just consider the colloquial uses, but focus on the way in which the Board of Immigration Appeals has interpreted those terms in light of the history of the statute and the regulations. [00:40:22] Speaker 05: So if Mr. Allen, if we rejected the government's international nexus test, then [00:40:30] Speaker 05: Do the appellants win? [00:40:32] Speaker 05: Because you've conceded, the government's conceded that business can be within the zone of interest. [00:40:38] Speaker 05: So with respect to this question before us, I mean, if we reject your test, do they, I guess what is the government's say fact specific reason why they are not within the zone of interest? [00:40:50] Speaker 06: So I think it's quite critical at this juncture to distinguish between the zone of interest and the merits question. [00:40:56] Speaker 06: If the court determined that there isn't an international connection requirement for the zone of interest, nevertheless, it's quite clear that the plaintiffs lose all the merits in light of the BIA's interpretations, which are entitled to this court's deference under Aguirre Aguirre, that the activity of the non-citizen does have to have [00:41:19] Speaker 06: and be a necessary incident to international commerce. [00:41:23] Speaker 05: Do you think we can split those things that there could be a different test for what's like within the zone of interest test and on the merits? [00:41:31] Speaker 05: Absolutely, Your Honor. [00:41:32] Speaker 05: With respect to the meaning of a statutory term business? [00:41:35] Speaker 06: Absolutely, Your Honor. [00:41:36] Speaker 06: The zone of interest test is a more general test than the merits test. [00:41:40] Speaker 06: The zone of interest tests asks whether or not a particular plaintiff has a cause of action under a statute. [00:41:47] Speaker 06: That is, whether Congress intended for that plaintiff to be able to sue. [00:41:51] Speaker 06: But that's a different question from whether or not the plaintiff wins. [00:41:54] Speaker 06: on the merits. [00:41:56] Speaker 06: The answer to that merits question is going to be more detailed of necessity. [00:42:00] Speaker 06: They're related. [00:42:00] Speaker 06: They're both merits questions involving an interpretation of the action under the statute. [00:42:05] Speaker 06: But the actual standard that applies is going to be more detailed. [00:42:09] Speaker 06: So it's quite [00:42:12] Speaker 06: uh, possible that if a court determined that there isn't an international connection requirement for the zone of interest. [00:42:20] Speaker 06: Nevertheless, in light of the board's long 50 year plus interpretation of the term, the non citizen has to have engaged in activity that has a necessary that is a necessary incident to international Mr. Yellen. [00:42:34] Speaker 02: My memory may be failing me here, but I'm trying to recall of a case in which we [00:42:41] Speaker 02: in which Chevron deference was invoked on behalf of an agency not involved in the case. [00:42:49] Speaker 06: Your honor may be thinking of the Rappaport case in which there were multiple agencies that administered a decision. [00:42:56] Speaker 02: Well, if there's multiple agencies, I don't think there's any Chevron deference, correct? [00:43:00] Speaker 06: Well, in that case, the court so held. [00:43:05] Speaker 02: But here you're asking us to defer to a position that [00:43:09] Speaker 02: the BIA has taken in other cases that are factually analogous, but not the same as this case. [00:43:17] Speaker 02: And we don't know out of their own mouths what they would say about this case. [00:43:22] Speaker 02: And you're asking us to defer to a sort of general principle of it. [00:43:26] Speaker 06: With respect, your honor, it's not a general principle. [00:43:28] Speaker 06: It's a principle that is directly derived from each of the BIA cases. [00:43:32] Speaker 06: If it's the case that the board has held, that you come within- I'll take that point and still ask. [00:43:40] Speaker 02: Are you familiar with any case in which the court has deferred to an agency's position when the agency isn't before the court? [00:43:48] Speaker 06: I'm not off the top of my head. [00:43:50] Speaker 06: I can certainly look to see if there are any and inform the court. [00:43:53] Speaker 02: However, in the same spot there. [00:43:55] Speaker 02: Well, it comes either. [00:43:56] Speaker 06: But with respect, your honor, the the board's interpretation of a statute is a binding interpretation of the statute, regardless of its context. [00:44:05] Speaker 06: It doesn't have to be a party before the court for its interpretation to be afforded Chevron. [00:44:12] Speaker 02: That's the question. [00:44:13] Speaker 02: That's the question. [00:44:14] Speaker 06: I'm aware of no legal requirement that would say that a court should not abide by an agency interpretation that's entitled to Chevron deference when the agency is not a party before the court, but should when the agency is a party before the court. [00:44:29] Speaker 02: The closest thing I can recall was a case involving primary jurisdiction, a doctrine that's no longer taught in the schools, in which the question involved whether the employer [00:44:43] Speaker 02: responded in the case was covered by the railroad retirement system or the social security system, which depended upon the interpretation of interstate carrier in the interstate commerce act. [00:44:59] Speaker 02: And the surface transportation board was not here. [00:45:05] Speaker 02: It was only the railroad retirement board. [00:45:09] Speaker 02: And we held up the case for the [00:45:13] Speaker 02: company to seek an opinion from the relevant agency. [00:45:17] Speaker 02: Is that where we are here? [00:45:20] Speaker 06: I don't think so, Your Honor, because again, the principles that are quite explicit in the board cases apply in this case. [00:45:28] Speaker 06: If it is the case, let me just, if I might try to connect the dots explicitly. [00:45:33] Speaker 06: If it is the case, as the government says, [00:45:36] Speaker 06: that the board has held that to be business within B1, the non-citizen must engage in activity that is a necessary incident to international commerce. [00:45:48] Speaker 06: And that principle applies of its own force and unambiguously to this case because- Here's my question. [00:45:57] Speaker 04: I understand the government's emphasis in terms of deference to the board. [00:46:05] Speaker 04: But it's the government. [00:46:07] Speaker 04: I don't understand the government to be arguing that the board could not change its view. [00:46:13] Speaker 04: In these circumstances, involving, you know, public health emergency us citizens are dying. [00:46:29] Speaker 04: I don't know, maybe the board would stick with it and say it's up to Congress. [00:46:33] Speaker 04: But as I understand it, your argument is simply, you know, these other, what I'll call more typical activities with people who come into the United States and deal with a company that's here [00:46:57] Speaker 04: But this is not exactly different. [00:47:01] Speaker 04: And I mean, it is different. [00:47:03] Speaker 04: And you're asking us to apply, I think, a general principle. [00:47:08] Speaker 04: But who knows what the board might do in this case? [00:47:11] Speaker 04: And maybe it would stick where it is. [00:47:15] Speaker 04: But clearly, this sort of [00:47:20] Speaker 04: public health emergency has caused all kinds of changes, and maybe you have to go back to Congress to get them, but I'm just, I wanna be clear how far the government's argument is taking it. [00:47:31] Speaker 04: I think Judge Routh's questions keep going to show me something in a statute, at least some of her questions, and your response is, well, you owe deference to the BIA, even though [00:47:47] Speaker 04: It hasn't dealt precisely with this fact situation, but there's a principle that applies and that's the end of it. [00:47:59] Speaker 04: And so even if we were to adopt your position, is it your position that we could necessarily not hold that the BIA could not reach another [00:48:13] Speaker 04: decision, and that sort of hold an abeyance notion that was just floated. [00:48:21] Speaker 06: A few thoughts in response, Your Honor. [00:48:23] Speaker 06: First, there's not a mechanism to send this [00:48:27] Speaker 06: question to the BIA. [00:48:29] Speaker 04: Well, that's for the court to decide, isn't it? [00:48:31] Speaker 04: At this point, I just want to know what the government's position is. [00:48:35] Speaker 04: Is it that the BIA, even if the company were to go before it tomorrow, could not reach a different conclusion in the facts situation? [00:48:46] Speaker 04: Or, you know, it might just stick to its guns, and that's it. [00:48:52] Speaker 04: But we don't know. [00:48:53] Speaker 06: So [00:48:55] Speaker 06: What I would say, Your Honor, is it would be inconsistent with 50 years of BIA jurisprudence. [00:49:00] Speaker 04: Well, so is this pandemic. [00:49:02] Speaker 04: I mean, when was the last pandemic that we had? [00:49:05] Speaker 03: It's more than 50 years ago. [00:49:12] Speaker 06: Your Honor, respectfully, the reason why this case is so different than others is because these particular individuals are not engaged in what's recognized as international commercial activity. [00:49:23] Speaker 04: I understand that, counsel. [00:49:25] Speaker 04: But you won't give me a yes or no answer, I gather. [00:49:31] Speaker 04: So I'm not going to pursue this. [00:49:34] Speaker 06: Well, I can't give you a yes or no answer, because there's not a mechanism for getting a question like this before the BIA. [00:49:41] Speaker 06: So the court is. [00:49:43] Speaker 04: Well, that's a legal conclusion, isn't it, counsel? [00:49:47] Speaker 06: Yes, Your Honor, but respectfully. [00:49:49] Speaker 04: It's not briefed. [00:49:50] Speaker 06: It's not briefed. [00:49:51] Speaker 06: No party has addressed it. [00:49:53] Speaker 04: No one has cited anything. [00:49:55] Speaker 04: So moving on from that, if we can't hold it in abeyance to give the company or maybe some of its employees and the patients who have filed another case before the district court could pursue it before the BIA, we don't know. [00:50:20] Speaker 06: Your Honor, the BIA hears cases involving the exclusion or inadmissibility of non-citizens. [00:50:29] Speaker 04: I get that, counsel, believe me. [00:50:31] Speaker 04: All right, I get your point. [00:50:33] Speaker 04: But let's move on. [00:50:37] Speaker 05: I just had one other, one other question. [00:50:38] Speaker 05: I mean, since the BIA, as you mentioned, and we know does do these individual adjudications, are BIA decisions binding and this type of litigation where a party has challenged a general policy of a federal agency? [00:50:55] Speaker 06: I think the questions of law are, Your Honor. [00:50:57] Speaker 06: I think they do deserve deference. [00:50:59] Speaker 05: And I would say... You think they do, but are there cases that suggest that the BIA determinations deserve deference in this type of context, not in the context of another determination of a non... [00:51:12] Speaker 05: you know, of an alien challenging some admissions decision. [00:51:16] Speaker 06: I think this is related to Judge Ginsburg's question, and I'm not aware of cases addressing this one way or the other. [00:51:21] Speaker 06: What I would say as a matter of first principles is it would lead to somewhat potentially contradictory results if the BIA received deference on an interpretation of law in one context, but not in another context. [00:51:35] Speaker 05: The contexts are very different. [00:51:36] Speaker 05: I mean, does the BIA have rulemaking authority? [00:51:40] Speaker 05: No, Your Honor, the Supreme Court has held a bigger part of it. [00:51:44] Speaker 05: It doesn't have rulemaking authority. [00:51:46] Speaker 06: No, but it has adjudicative authority, and the Supreme Court has held in Aguirre Aguirre that the BIA's interpretations of the INA receive severon deference in its resolution, in its articulation of the law, in its adjudications. [00:52:01] Speaker 04: Council, the Supreme Court has clearly recognized that an agency can change its interpretation and it can explain why and give reasons. [00:52:09] Speaker 04: So that's just not an answer. [00:52:11] Speaker 04: And that's what I think Judge Rao's question is trying to get you to understand and address. [00:52:18] Speaker 04: Just assume, you know, but you want to fight this battle that no one's fighting right now. [00:52:26] Speaker 06: I beg your honor, pardon, I don't mean to be fighting any battle. [00:52:30] Speaker 06: I'm only suggesting that the court has the law that's before it. [00:52:33] Speaker 06: No party has sought an opinion from the BIA, nor is there a mechanism for doing so. [00:52:39] Speaker 04: And I think that's repetitious. [00:52:41] Speaker 04: I think each judge has heard your answer. [00:52:44] Speaker 04: And I thought Judge Rao's question was trying to see if you were open to giving other than a repetitious response. [00:52:55] Speaker 06: I beg your pardon, your honor. [00:52:58] Speaker 04: Anything further? [00:53:01] Speaker 06: No, Your Honor. [00:53:02] Speaker 06: I would just encourage the court to look closely at the board's decisions and consider the principles there. [00:53:06] Speaker 06: And we think that it leads to a fairly clear decision in this case. [00:53:11] Speaker 04: Thank you. [00:53:12] Speaker 04: Thank you, Your Honor. [00:53:13] Speaker 04: We'll take the case under advisement. [00:53:15] Speaker 04: So counsel for appellate. [00:53:29] Speaker 01: I would like to address a number of points that were raised by the government, one that stressed with some force that a non-citizen's activity must be international or at least predominantly international. [00:53:44] Speaker 01: He said that is something, a requirement that comes from the BIA and needs to be imported into the statute and the regulation. [00:53:51] Speaker 01: I'd like to address [00:53:54] Speaker 01: And in addressing that, I think I'm also going to be able to address some of the deference questions that seem to be a different issue, but converge with this. [00:54:02] Speaker 01: The best way to understand that that position is incorrect is to look at the very specific examples that the government gives in its regulations and in the foreign affairs [00:54:16] Speaker 01: of B1 qualifying cases. [00:54:19] Speaker 01: They give examples. [00:54:21] Speaker 01: Now, the government has said there has to be an international nexus, or at least a predominantly international nexus. [00:54:27] Speaker 01: If you look at the regs, 22 CFR 4131, the term business, it says, defines it as used in the B1 statutory provision, refers to conventions. [00:54:42] Speaker 01: I don't see a convention necessarily having an international [00:54:46] Speaker 01: conferences, consultation. [00:54:49] Speaker 01: So somebody comes into this country for a consult, a business consult. [00:54:54] Speaker 01: There is no requirement here in the definition section in the examples that are given here to indicate that there has to be an international nexus. [00:55:04] Speaker 01: Another example that the same regulation gives, the regulation gives an example of somebody who cannot come under a B1, a construction work. [00:55:13] Speaker 01: That's the paradigmatic example of somebody who does not qualify B1. [00:55:17] Speaker 01: Why? [00:55:17] Speaker 01: Because although he's coming in for business, you're engaged in labor. [00:55:22] Speaker 01: But then the regulation says, but the supervisor of a construction worker can come in under a B1. [00:55:29] Speaker 01: Now, how does the supervisor of a construction site come in? [00:55:33] Speaker 01: It could be any construction site. [00:55:36] Speaker 01: It could be the tree house in my backyard. [00:55:39] Speaker 01: If you're the supervisor and not the laborer, you can come in under the B1. [00:55:44] Speaker 01: What international nexus is that? [00:55:46] Speaker 01: And that's the regulation. [00:55:48] Speaker 01: Then you look at the Foreign Affairs Manual, the FAM, which is essentially the equivalent of a regulation. [00:55:53] Speaker 01: And this is what instructs the State Department. [00:55:56] Speaker 01: Here are some examples of B1 business visas. [00:55:58] Speaker 01: It says, if you're coming in to consult with business associates, if you're coming in to play golf for prize money, [00:56:09] Speaker 01: Where's the international nexus there? [00:56:12] Speaker 01: If you come in, professional athletes such as golfers and auto racers, if they're getting prize money, can come in, even though they're getting the prize money, under B1. [00:56:24] Speaker 01: If you're coming in to litigate, that's an example that the fam gives. [00:56:29] Speaker 01: I don't see an international nexus there. [00:56:32] Speaker 01: If you're coming in to undertake independent research, [00:56:35] Speaker 01: You get a B1. [00:56:36] Speaker 01: These are not my examples. [00:56:37] Speaker 01: These are the government's examples. [00:56:39] Speaker 01: These are what guide our consular officials as they decide whether or not to issue B1. [00:56:45] Speaker 01: If you come to participate in scientific, educational, professional, or business conventions, conferences, or seminars, these are some of the examples that they give. [00:56:56] Speaker 01: There is clearly no requirement of an international nexus in these examples. [00:57:01] Speaker 01: That then gets to the deference issue as well. [00:57:04] Speaker 01: Why? [00:57:04] Speaker 01: Because I don't read the cases clearly the way Mr. Yellen reads the case. [00:57:09] Speaker 01: I read them the way he said before, that they introduce this international idea because they're dealing not purely with business, but business versus labor. [00:57:18] Speaker 01: And they're trying to find us the label locally. [00:57:20] Speaker 01: But even if you were to accept his reading, then what you have is you have very inconsistent positions being taken by the government. [00:57:28] Speaker 01: The government, through the BIA, at least according to Mr. Yellen's reading, is saying there's an international nexus requirement. [00:57:34] Speaker 01: But the government is also saying, through the regulations that the government promulgated, and the FAM that the government promulgated, it's giving examples where there's clearly no international nexus. [00:57:44] Speaker 01: When you have those confusing messages from the government, I don't think they're confusing, but if you accept Mr. Yellen's reading, then it is clear that there is no Chevron deference, there's no Skidmore deference. [00:57:55] Speaker 02: What could all of these [00:57:57] Speaker 02: occasions for entry be qualified under the case law of the BIA as requiring that international connection. [00:58:07] Speaker 02: So the supervisor can come in if the project is commissioned in Mexico or what have you. [00:58:15] Speaker 02: The litigation involves business affairs outside the United States. [00:58:20] Speaker 01: Your Honor, when you look at the regulation, especially you're looking at the FAM, [00:58:25] Speaker 01: You were looking at something that's given to a non-lawyer who's a consular official and he looks at the application and he says, oh, he's coming for a convention. [00:58:33] Speaker 01: Conventions are okay. [00:58:35] Speaker 01: That's it. [00:58:36] Speaker 01: What sort of guidance is that in the fam? [00:58:38] Speaker 01: If you're giving it to a consular official and you say, I'm not going to tell you this, but the most important requirement that we're not even going to write down is that you got to be sure there's an international nexus. [00:58:48] Speaker 01: So if somebody's coming to a conference on [00:58:52] Speaker 01: international or you let him in, but if he's coming to a conference on New York law, for example, you can't let him in because there's no international access. [00:59:01] Speaker 01: I mean, the fam is supposed to be an everyday easy guide for the consular officials to apply when somebody comes with an application. [00:59:09] Speaker 01: They look at the application, they say, oh, this is what he's coming. [00:59:12] Speaker 01: I compare it to the list. [00:59:14] Speaker 01: He's OK. [00:59:14] Speaker 05: The fam, however, is not a regulation. [00:59:17] Speaker 01: The FAM is an articulation of the government's position. [00:59:21] Speaker 01: It's some sort of guidance. [00:59:22] Speaker 01: It is a State Department official document, and insofar as we're talking about giving deference to the position that the executive branch has taken here, if the executive branch is speaking very differently in different contexts, it suggests that there is no deference duty. [00:59:40] Speaker 01: I think the deference that do is is deference to the simple language of of the statue is one more example I see my time is up that I want to leave you with which. [00:59:51] Speaker 01: I think you're about to ask me a question. [00:59:54] Speaker 01: I asked the court to consider the caravito which was a first circuit based by now justice then judge Breyer and it was a reversal you reversed. [01:00:07] Speaker 01: The eye, the old is when it denied to be one be one visa to an individual who's coming in from Columbia to temporarily supervise a local gas station in Puerto Rico that he owned. [01:00:23] Speaker 01: He owned a corner gas station. [01:00:25] Speaker 01: And the INS kept him out. [01:00:28] Speaker 01: And Judge Breyer said, this is a perfect B-1 visa. [01:00:31] Speaker 01: He's coming in. [01:00:32] Speaker 01: He's got to do some things to arrange the gas station, the corner gas station that he owns. [01:00:37] Speaker 01: There was no discussion or requirement of an international nexus. [01:00:41] Speaker 01: There was none. [01:00:43] Speaker 01: And this was a case where Judge Breyer reversed the INS. [01:00:46] Speaker 01: He wasn't accepting the fines there. [01:00:48] Speaker 01: He reversed the INS and found that the B-1 should have been recorded. [01:00:54] Speaker 01: The last point I'll make. [01:00:55] Speaker 01: before I go is I strongly disagree with the notion that the same word business in the statute can mean no international nexus for zone of interest purposes, but all of a sudden when you get to the merits, that same word in the same statute, because of something the BIA said, would have to be read, according to Mr. Yellen, to include a international nexus. [01:01:22] Speaker 01: It cannot be that the same word means two different things, [01:01:25] Speaker 02: Mister was I had been preparing to ask you a question but didn't want to interrupt. [01:01:29] Speaker 01: Oh, OK. [01:01:30] Speaker 02: And the question was about an exclusion case and you just gave us. [01:01:36] Speaker 01: Yes, the Garavito case, yes. [01:01:39] Speaker 01: Thank you, Your Honor. [01:01:39] Speaker 01: And if I could just add, I'd like to end with a plea for the court to decide this case as quickly as the court could. [01:01:49] Speaker 01: I know that's an unusual plea to make, but I'm not kidding about the shortages that are out there. [01:01:55] Speaker 01: And this litigation, the sooner it is concluded, the sooner I hope we'll be in a position for our clients to go back and collecting the blood plasma that needs to be collected. [01:02:07] Speaker 01: Thank you. [01:02:07] Speaker 01: Thank you very much. [01:02:08] Speaker 04: Any further questions? [01:02:10] Speaker 04: Thank you. [01:02:11] Speaker 04: Council will take the case under advisement.