[00:00:00] Speaker 05:
Case number twenty one dash three, two, three, a deal.

[00:00:03] Speaker 05:
I have a day and Melissa and a balance versus Alejandro and my orcas secretary.

[00:00:11] Speaker 05:
You are department of homeland security at out.

[00:00:14] Speaker 05:
Mr. Schmidt for the balance is also very pretty.

[00:00:18] Speaker 06:
Thank you.

[00:00:18] Speaker 06:
Mr. Schmidt.

[00:00:19] Speaker 06:
We are ready when you.

[00:00:27] Speaker 01:
Good morning, Your Honors.

[00:00:28] Speaker 01:
May it please the court branch on behalf of the appellants.

[00:00:32] Speaker 01:
The central question on review in this case is whether 8 U.S.

[00:00:35] Speaker 01:
Code 1252A2B prohibits judicial review of an affirmative adjustment of status application or said denial is based on a misapplication and or misapplication or misinterpretation of another federal statute.

[00:00:50] Speaker 01:
In this case, 8 U.S.

[00:00:52] Speaker 01:
Code 1182E.

[00:00:54] Speaker 01:
By way of background, Dr. Adil Aduzade entered the United States in J1 visa status to complete a medical residency.

[00:01:02] Speaker 01:
On admission, he became subject to a requirement to return to his home country of two years.

[00:01:07] Speaker 01:
In this case, there are two home countries, the United Kingdom and Saudi Arabia.

[00:01:12] Speaker 01:
The two-year foreign residence requirement creates four legal disabilities that do not go away until the applicant or the change visitor fulfills the requirement or obtains a waiver of the requirement.

[00:01:22] Speaker 01:
And one such disability is on an application for adjustment of status or for permanent residence status in the United States, also known as a green card application.

[00:01:32] Speaker 01:
In this case, the USCIS denied two adjustment of status applications to want the fulfillment of the two-year foreign residence requirement for two separate reasons.

[00:01:42] Speaker 01:
The first reason is the government held that his trips to the United Kingdom and Saudi Arabia were too short to comprise residence.

[00:01:50] Speaker 01:
So, 8 U.S.

[00:01:51] Speaker 01:
Code 1182E requires for fulfillment residence and physical presence for an aggregate.

[00:01:57] Speaker 02:
Before you get in too far into the detail, you have a limited amount of time.

[00:02:02] Speaker 02:
The first question is an illegal one.

[00:02:04] Speaker 02:
Why doesn't Patel case in the Supreme Court exclude what you're asking us to do here?

[00:02:11] Speaker 01:
Yes, Your Honor.

[00:02:12] Speaker 01:
So the recent Patel decision out of the Supreme Court does not actually apply to this case because the court explicitly held that an affirmative adjustment of status application is not subject to withholding.

[00:02:26] Speaker 01:
Only applications and removal proceedings where relief is sought.

[00:02:31] Speaker 02:
What was before the Supreme Court in Patel?

[00:02:34] Speaker 01:
What was before the Supreme Court in Patel is whether this statutory provision, 8 U.S.

[00:02:39] Speaker 01:
Code 1252A2B, precludes judicial review of discretionary determinations in the removal context where relief is sought.

[00:02:49] Speaker 02:
Was that in a removal context in Patel?

[00:02:52] Speaker 02:
I'm sorry.

[00:02:52] Speaker 02:
Was that in a removal context in Patel?

[00:02:55] Speaker 01:
Yes, Your Honor.

[00:02:56] Speaker 01:
He was put into removal proceedings and a removal order was issued.

[00:03:01] Speaker 01:
in that case.

[00:03:02] Speaker 06:
But the status we're interpreting here, doesn't it say regardless of whether the judgment decision or action is made in removal proceedings?

[00:03:10] Speaker 01:
Yes, your honor.

[00:03:11] Speaker 01:
So that is one of the government's arguments in the statutory language.

[00:03:17] Speaker 01:
And I would say that that's a strange reading of the statute in that it disregards the title of the statute, statutory provision, judicial review of orders of removal.

[00:03:27] Speaker 00:
That is not the way we read statutes.

[00:03:31] Speaker 00:
I'm sorry?

[00:03:31] Speaker 00:
I said that is not the way we read statutes.

[00:03:34] Speaker 01:
Well, it's not just the title, Your Honor.

[00:03:37] Speaker 01:
The word relief is actually used in three locations.

[00:03:41] Speaker 00:
Judge Pan read you the language of the statute.

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We never allow a title to overcome plain language in the statute.

[00:03:49] Speaker 01:
It's additionally in the text and two other locations relevant to this question.

[00:03:54] Speaker 01:
So it's the word relief is in the title.

[00:03:59] Speaker 01:
It's also in the subtitle of this particular provision and there's also language.

[00:04:05] Speaker 02:
There's another reword that may be a problem for in the regarding in the statute in the Supreme Court and defined very broadly was

[00:04:18] Speaker 02:
So regardless of whether the judgment decision or action is regarding is defined in the Supreme Court decision and including anything leading up to our.

[00:04:27] Speaker 02:
Yeah, you go to justice course that you dissent as a good job of dismantling it, but that's a dissent.

[00:04:32] Speaker 02:
It doesn't matter.

[00:04:34] Speaker 06:
Any judgment regarding the grant.

[00:04:37] Speaker 01:
Right.

[00:04:38] Speaker 01:
And so there's a distinction between adjusting a status application in the context of removal proceedings, and that relief is inherently being sought.

[00:04:48] Speaker 01:
Whereas in an affirmative adjustment of status application, there's no relief sought.

[00:04:53] Speaker 01:
It's actually an affirmative benefit application.

[00:04:55] Speaker 01:
USCIS is a benefits granting agency.

[00:04:58] Speaker 06:
I guess the issue is whether that distinction matters when the statute explicitly says, regardless of whether the judgment decision or action is made in removal proceedings,

[00:05:06] Speaker 06:
no court shall have jurisdiction to review any judgment regarding the granting of relief under section 1255.

[00:05:12] Speaker 06:
Is that the only basis on which you try to distinguish Patel?

[00:05:19] Speaker 06:
The fact that was removal proceeding, this is not?

[00:05:22] Speaker 01:
Oh, no, Your Honor.

[00:05:23] Speaker 01:
We have circuit decision law for circuits prior to Patel who have actually held that you can't get judicial review in this context when you're looking at this.

[00:05:34] Speaker 02:
Prior to Patel.

[00:05:35] Speaker 01:
Prior to Patel.

[00:05:35] Speaker 01:
Prior to Patel, except Patel doesn't explicitly overrule any of those circuit decisions because it did not apply to anything outside of removal proceedings.

[00:05:46] Speaker 02:
It doesn't necessarily go outside its immediate case to

[00:05:51] Speaker 02:
explicitly overrule cases, does it count?

[00:05:56] Speaker 01:
So when the Supreme Court held that, you know, this is this is only applying to in the context of removal, I mean, it's explicitly and expressly said that and went on to say that we're not doing this.

[00:06:11] Speaker 01:
And they also said that the holding of the majority of ruling in Patel said,

[00:06:18] Speaker 01:
closed review when it comes to any other case such as in this variety.

[00:06:23] Speaker 01:
And if you look at prior Supreme Court precedent in Kukana versus Holder, a 9-0 decision, where they actually employed a statutory construction prescribed by the Supreme Court in Kukana versus Holder, that there's a presumption of judicial review

[00:06:41] Speaker 01:
of when there's administrative action and it takes clear and convincing evidence to dislodge that presumption.

[00:06:47] Speaker 06:
But in this case... Or presumably a statutory bar.

[00:06:53] Speaker 06:
I'm sorry.

[00:06:54] Speaker 06:
There's a statutory provision here that forecloses it.

[00:06:57] Speaker 06:
So does that take that outside of the context in which you're referring?

[00:07:02] Speaker 01:
No, this is actually interpreting who Congress holder interpreted the neighboring provision of the statute saying we require clear convincing evidence and the provision they're interpreting is actually broader than the provision that issue in this case.

[00:07:16] Speaker 01:
And they said they required clear and convincing evidence.

[00:07:19] Speaker 01:
And what the court has held in Patel is may have intended to foreclose.

[00:07:24] Speaker 01:
So that's like very far away from current convincing evidence.

[00:07:30] Speaker 01:
The dissent actually one on so the majority opinion in con actually or I'm sorry to tell so that who comments rule was in opposite in in deciding the case and the sound.

[00:07:45] Speaker 01:
Ashley pointed out that employing principles of statutory construction, that there absolutely is an implication that review should be held in case of this variety.

[00:07:57] Speaker 01:
So he looked at the statute, the statutory language, and he looked at the ruling of Kukana and said there should actually be reviews in this kind of case.

[00:08:06] Speaker 01:
Additionally, let me add that the federal government has been inconsistent

[00:08:10] Speaker 01:
and their position on this issue, they actually advocated for in Patel that this kind of question would be subject to judicial review.

[00:08:20] Speaker 06:
No, I understand that.

[00:08:21] Speaker 06:
But then Patel happened.

[00:08:23] Speaker 06:
Yes, sir.

[00:08:24] Speaker 06:
Thank you.

[00:08:25] Speaker 06:
Any other questions?

[00:08:25] Speaker 06:
All right.

[00:08:27] Speaker 06:
Thank you very much.

[00:08:28] Speaker 04:
We'll give you a minute.

[00:08:48] Speaker 03:
In writing your honors, may it please the court, Carol Ulsterberg, on behalf of the United States.

[00:08:53] Speaker 03:
The district court got it right.

[00:08:56] Speaker 03:
The district court correctly read the plain language of the statute at issue 1252A2BI and found that in cases such as this, the USCIS denial of an adjustment of status application is unrevealable.

[00:09:12] Speaker 03:
And then Patel happened.

[00:09:13] Speaker 03:
And as appellant even concedes, Patel has

[00:09:18] Speaker 03:
had a great impact on the different definitions of terms that are at issue in a case such as this.

[00:09:26] Speaker 03:
The question of what judgment means has been defined by Patel.

[00:09:30] Speaker 03:
The question of what the term any means has been defined by Patel.

[00:09:34] Speaker 03:
And the definition of what regarding means has also been defined by Patel such that the broad scope of Patel applies here.

[00:09:43] Speaker 03:
Patel's reasoning equally applies in cases such as this regarding the denial of an adjustment of status application by USCIS.

[00:09:56] Speaker 03:
Looking to the language in the plain text of

[00:09:59] Speaker 03:
1252A2B1, as this court noted itself, that states it's regardless of whether the judgment, decision, or action is made in removal proceedings.

[00:10:11] Speaker 03:
That's the case here.

[00:10:12] Speaker 03:
And B1 states that any judgment regarding the granting of relief under Section 1255, which is also the case here, Dr. Al-Buzayid's application was denied pursuant to 1255.

[00:10:35] Speaker 04:
Sounds pretty straightforward.

[00:10:36] Speaker 06:
I think you understand your position.

[00:10:38] Speaker 06:
If you have anything to add, please feel free.

[00:10:40] Speaker 06:
Otherwise, I think you'd be free to rest on your briefs.

[00:10:44] Speaker 03:
Nothing further to add.

[00:10:45] Speaker 06:
Thank you very much.

[00:10:47] Speaker 06:
Thank you.

[00:10:49] Speaker 06:
We'll give you one minute, Mr. Schmidt, if you'd like to.

[00:10:55] Speaker 06:
To give us any closing thoughts.

[00:10:59] Speaker 01:
Thank you.

[00:11:00] Speaker 01:
So, just going back to the text of the statue, you know, we have the title removal orders.

[00:11:07] Speaker 01:
Denials of discretionary relief and then all of the text and then point one and then 8 US code 1255.

[00:11:15] Speaker 01:
And in an affirmative adjustment of status application, there is no relief that's being sought.

[00:11:21] Speaker 01:
It's a benefit application.

[00:11:23] Speaker 01:
Moreover, there's no review under the statute.

[00:11:25] Speaker 01:
There's no administrative review.

[00:11:27] Speaker 01:
There's no, what the governments are getting here is there's no judicial review.

[00:11:32] Speaker 01:
But in the context of removal proceeding, there's a channel.

[00:11:35] Speaker 01:
So we have review in the board of immigration appeals, followed by particular circuit courts of appeal

[00:11:41] Speaker 01:
for review and then discretionary with the Supreme Court.

[00:11:46] Speaker 01:
And as such, we would argue this, especially given the fact that Patel did not hold that the holding applies to this kind of case and it only applies to removal.

[00:11:56] Speaker 01:
Proceedings may expressly said, so we would ask that the court find that the issue of review ability remains open for this court to decide and that the decisions and the circuits and the decision of law cited in support of our application have not actually been overruled.

[00:12:12] Speaker 01:
And for these reasons, we respectfully request the reversal of the district court's ruling.

[00:12:18] Speaker 06:
Thank you very much, Mr. Schmidt.

[00:12:19] Speaker 06:
The case is submitted.