[00:00:00] Speaker 00: This court is now confronted with a case presenting the most extreme and tragic [00:00:31] Speaker 05: application of the doctrine of consular non-reviewability, and any reported jurisprudence to date. [00:00:40] Speaker 05: Helen Eddie Blenders-Lorris came to the United States when he was 14 years old. [00:00:45] Speaker 05: His parents brought him here. [00:00:46] Speaker 05: He lived in New York, eventually resided in Jacksonville, Florida. [00:00:51] Speaker 05: He remained in the United States for 24 years, from January of 1995 till June of 2019, when he only departed the United States [00:01:01] Speaker 05: process counselor down in Guatemala come back in the United States the right way. [00:01:08] Speaker 05: This case arises because appellate Lenders was sought to come under the shadows and to rectify his unlawful immigration status through the process implemented by DHS, United States Citizenship and Immigration Services. [00:01:24] Speaker 05: What we know about Eddie Lenders is that he has no criminal history. [00:01:28] Speaker 05: 24 years in the United States, not so much as a traffic ticket. [00:01:33] Speaker 05: He worked for a pool finishing company from 2007 to 2019. [00:01:39] Speaker 05: Married in December of 20, 2006, a pendant calendar, a registered nurse who graduated at the top of her class and continuous work for Baptist Health in Jacksonville, Florida. [00:01:51] Speaker 05: The couple had a daughter in 2008. [00:01:54] Speaker 05: As to the lawfulness, [00:01:57] Speaker 05: of the life led by appellant lenders. [00:02:00] Speaker 05: In the United States, the record contains 37 sworn letters of reference attesting to appellant lenders' good moral character. [00:02:11] Speaker 05: Moreover, in June 2018, in connection with this USCIS application for an unlawful presence waiver, USCIS, in coordination with the Federal Bureau of Investigation, conducted thorough security and background [00:02:26] Speaker 05: investigation for Appellate Calendars. [00:02:29] Speaker 05: And following that investigation and his clearance by the Federal Bureau of Investigation, USCIS approved Appellate Calendars' Unlawful Presence Waiver. [00:02:41] Speaker 05: At that point, Appellate Calendars travels to Guatemala, which is required to have the consular processed and be admitted the right way. [00:02:49] Speaker 05: So he traveled to Guatemala on June 26, 2019, and had his consular interview [00:02:55] Speaker 05: on July 10th, 2019. [00:02:58] Speaker 05: So he was in Guatemala for 14 days. [00:03:02] Speaker 05: The only other history in the record is his 24 law abiding years in the United States. [00:03:08] Speaker 05: During those two weeks, appellant calendars gathered police clearance letters from local and national Guatemalan authorities, and they were crystal clean. [00:03:19] Speaker 05: So we've got a clearance by the Federal Bureau of Investigation and USCIS. [00:03:25] Speaker 05: We've got appellant calendars living in the United States for 24 years, not getting so much as a traffic ticket. [00:03:33] Speaker 05: He's only in Guatemala for 14 days, and he has police clearance. [00:03:38] Speaker 05: And notwithstanding all this, the consular officer refused appellant calendars for his immigrant visa, averting that he was inadmissible as an alien that the consular officer knows or has reason to believe [00:03:54] Speaker 05: that he seeks to enter the United States to engage solely, principally, or incidentally in any other unlawful activity. [00:04:06] Speaker 05: We know from Mendel and Den, the most recent Supreme Court case on the doctrine of consular non-viability 2015, that consular decisions are subject to a narrow scope of review. [00:04:21] Speaker 05: There are two elements that a consular decision has to have as constitutional muster. [00:04:26] Speaker 05: It has to be facially legitimate and bona fide. [00:04:30] Speaker 05: Facially legitimate is simple. [00:04:32] Speaker 05: That merely means that the consular officer must cite a valid ground of admissibility. [00:04:38] Speaker 05: That happened here. [00:04:38] Speaker 05: That first element is not at issue at all in this case. [00:04:43] Speaker 05: The second element is bona fide. [00:04:46] Speaker 05: That means either a citation to a statutory route of inadmissibility that has a discrete factual predicate. [00:04:54] Speaker 05: You know what the State Department or the consulate officer is thinking because it's odd. [00:04:58] Speaker 05: Narcotics trafficking, terrorism, human trafficking. [00:05:05] Speaker 05: Or if the statutory route of inadmissibility is divisible, then there must be a discrete fact in the record [00:05:15] Speaker 05: that provides at least a facial connection to the statutory ground of disability. [00:05:21] Speaker 05: That's what the heart of this case right there. [00:05:25] Speaker 05: Because the consular officer without any explanation, any reference to any factual predicate or any stated factual basis whatsoever invoked 8 USC 1182 8382. [00:05:42] Speaker 05: And that merely states that the alien, again, that the consular officer believes they are coming to the United States to engage solely, principally, or incidentally in unlawful activity. [00:05:52] Speaker 05: What is it? [00:05:53] Speaker 05: It could be anything from the crime you were talking about in the prior matter to JY. [00:06:00] Speaker 05: It's completely ambiguous. [00:06:03] Speaker 04: So can I ask, there's also the record indication that the basis for the decision [00:06:12] Speaker 04: was that he's a member of an organized criminal entity. [00:06:17] Speaker 04: So it's not just the statutory provision, it's the statutory provision plus this additional factual consideration which [00:06:27] Speaker 04: I don't I I'm sure you dispute the factual cons bona fides of the factual consideration. [00:06:32] Speaker 04: But it's true or not, but there's no dispute that that was actually part of the decision. [00:06:36] Speaker 05: That's correct. [00:06:38] Speaker 05: Uh, he in fact on May 6 2020 the decision specifically invoke the statute and said that he was an alien, um, for which there is reasonably he's member of a known criminal organization. [00:06:50] Speaker 05: But that statement known criminal organization is a spaly bait and ambiguous [00:06:55] Speaker 05: as the words unlawful activity themselves. [00:06:59] Speaker 05: Contrast this with Munoz. [00:07:00] Speaker 05: The Ninth Circuit just decided. [00:07:02] Speaker 05: I'm sure this court is well aware. [00:07:03] Speaker 05: I cited it heavily in my brief and so did the government. [00:07:06] Speaker 05: In that case, the government provided a sworn declaration by a special agent that the applicant for the visa was a member of MS-13. [00:07:16] Speaker 05: They responded to interrogatories and discovery and avert the same evidence. [00:07:21] Speaker 05: The record has no derogatory evidence about appellant blunders whatsoever. [00:07:26] Speaker 05: And what you see in a lot of these cases is the government defensively introducing classified evidence, like in the Savito-Bruno case versus Albright, that this court decided there was classified evidence in the Eberresic case. [00:07:46] Speaker 05: matter the court considered the district court considered in camera ex parte classified evidence regarding the underlying derogatory. [00:07:56] Speaker 05: There is no derogatory here. [00:07:58] Speaker 04: How would you compare it to Dan and with Justice Kennedy's logic and Dan, which was one of the opinions that made up the majority and arguably the narrowest opinion that made up the majority. [00:08:11] Speaker 04: That was also a statutory provision that referred [00:08:17] Speaker 04: generally to terrorist activities. [00:08:19] Speaker 05: Well, that was 1182A3B, which is in the appendix to the court's opinion. [00:08:25] Speaker 05: And it's very specific. [00:08:27] Speaker 05: And that's why Justice Kennedy opined that the statutory grant of inadmissibility necessarily included a discrete factual predicate. [00:08:38] Speaker 05: There's no need to provide a fact in the record linking the applicant to the statutory grant of inadmissibility. [00:08:45] Speaker 05: because the statute speaks for itself. [00:08:48] Speaker 05: 1182A3B says, for instance, has under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity, is representative of a terrorist organization, endorses or installs this terrorist activity. [00:09:10] Speaker 05: It's a extremely detailed [00:09:14] Speaker 05: factual predicate for application of 1182A3B, the same is not true here as to A3B2, which merely specifies any unlawful activity. [00:09:25] Speaker 05: And even if you couple that with the ambiguous averment by the consular officer that he's a member of a criminal organization, that is still insufficient for the bona fide element of the consular non-reviability analysis. [00:09:41] Speaker 05: It provides no information. [00:09:43] Speaker 05: The heart of the matter is due process. [00:09:47] Speaker 05: Was procedural due process afforded to Mrs. Calenderos here at the United States Citizen Petitioner? [00:09:53] Speaker 05: The answer is no, because she literally to this day, we have no idea why they think Eddie is a criminal. [00:10:00] Speaker 04: Why do they think he's a criminal? [00:10:01] Speaker 04: You just said procedural due process. [00:10:03] Speaker 04: I guess I didn't read your briefing to talk about procedural due process. [00:10:08] Speaker 04: I read your briefing to talk about [00:10:10] Speaker 04: fundamental rights and substantive process. [00:10:12] Speaker 05: Well, our argument is that the marital right, the marital union, the marriage, the rights appropriate to raise a family is a fundamental, substantive due process liberty interest going for the Fifth Amendment. [00:10:25] Speaker 05: But our argument is merely that it is minimal. [00:10:29] Speaker 05: In consideration of that fundamental liberty interest, one should be afforded procedural due process. [00:10:35] Speaker 05: And that did not occur here because the consular decision was not fully legitimate and, more importantly, bona fide. [00:10:43] Speaker 05: So that's the argument is that the decision is fatally defective under any analysis of Kerry versus Dan, especially in light of Munoz. [00:10:52] Speaker 05: And again, there's no evidence in the record whatsoever derogatory to Eddie Flinders. [00:10:57] Speaker 05: The best evidence in the record as to the nature of his intent of travel to the United States is the life he lived here for 24 years where he didn't even get a traffic ticket. [00:11:09] Speaker 05: fine outstanding citizen, 37 sworn letters of his good moral character, and the State Department wants to keep him 2,500 miles away from his family, deprive a wife of her husband, a daughter of her father, with no explanation whatsoever. [00:11:26] Speaker 05: It is fundamentally, constitutionally inadequate notice [00:11:31] Speaker 05: as a component of procedural due process. [00:11:35] Speaker 05: How would Ms. [00:11:35] Speaker 05: Splendors meaningfully respond or address, mitigate the consular officer's concerns? [00:11:42] Speaker 05: Which you only have a year to file a request for reconsideration, so that's come and gone, because we're at three years, three and three quarters years. [00:11:51] Speaker 05: They have now been separated for 1,359 days. [00:12:01] Speaker 04: So let me thank you. [00:12:03] Speaker 04: Let me make sure my colleagues don't have questions for you at this time. [00:12:06] Speaker 04: We will give you the rebuttal time. [00:12:09] Speaker 04: I believe I have under two minutes left. [00:12:13] Speaker 04: It's actually the red light means that the clock's going the other direction. [00:12:17] Speaker 04: No, no, no. [00:12:18] Speaker 04: It's confusing. [00:12:18] Speaker 04: It's confusing. [00:12:19] Speaker 04: Thank you. [00:12:21] Speaker 04: We will give you rebuttal time. [00:12:29] Speaker 04: Mr. Reno, we'll hear from you now. [00:12:31] Speaker 01: May it please the court, Katherine Reno for the government. [00:12:35] Speaker 01: The doctrine of consular non-reviewability prohibits judicial review in this case. [00:12:40] Speaker 01: Although plaintiffs seek to avoid the doctrine, claiming that the refusal violates Colin Dreyse's constitutional rights, they tacitly concede that they cannot prevail under 65 years of precedent in this circuit. [00:12:53] Speaker 01: So plaintiffs implore the court to simply abandon its decisions and invent a brand new constitutional right. [00:13:00] Speaker 01: for a United States citizen to have her non-citizen spouse enter and reside in the United States. [00:13:07] Speaker 01: But they present no persuasive reason for the court to take such drastic action. [00:13:11] Speaker 01: And in fact, a number of reasons counsel against the court doing so. [00:13:16] Speaker 01: The Constitution recognizes no such right. [00:13:18] Speaker 01: There is no evidence of such a right in the nation's history and traditions, which instead show a long history of Congress regulating spousal immigration. [00:13:28] Speaker 01: Neither the Supreme Court nor this court has ever recognized such a right. [00:13:32] Speaker 01: And instead, just three years ago, this court recognized just the opposite and found that the principle was so clear as to warrant some reaction. [00:13:41] Speaker 01: Plaintiff's position also can't be reconciled with 150 years of Supreme Court precedent holding that the due process clause is not applicable to the indirect adverse effect of government action. [00:13:53] Speaker 01: The lack of any constitutionally protected liberty interest here is dispositive. [00:13:59] Speaker 01: Without showing the plaintiffs have one, they cannot obtain judicial review. [00:14:03] Speaker 01: The government citation. [00:14:06] Speaker 03: If I were in your shoes, I would have started exactly as you do with the law. [00:14:11] Speaker 03: And if I were in your closing counsel's shoes, I would have started where he did, which is with the facts. [00:14:17] Speaker 03: Do you have any response to the very powerful, I think somewhat unjust, [00:14:23] Speaker 03: due to facts that he began with? [00:14:28] Speaker 01: Your honors, this no doubt is a sympathetic case. [00:14:33] Speaker 01: But I would be remiss if I didn't point out that plaintiffs here have had three levels of review of their visa denial already. [00:14:42] Speaker 01: The first consular officer who initially reviewed the visa application and refused it. [00:14:50] Speaker 01: Then plaintiffs sought reconsideration and a supervisor reevaluated and considered new evidence and decided that the first consular officer had gotten it right. [00:15:03] Speaker 01: And more recently in June of 2022, plaintiffs submitted a new visa application, which a third consular officer reviewed and determined that it should be refused and that the statute had been properly applied. [00:15:18] Speaker 01: So while sympathetic, they've had lots of review at the State Department and [00:15:24] Speaker 01: There's a reason the consular non-reviewability doctrine exists. [00:15:31] Speaker 01: This isn't simply a situation of two private individuals, but it clashes, this right that they're seeking clashes with Congress's essentially public decision to defend the country against foreign encroachments and dangers. [00:15:47] Speaker 01: Congress has plenty of power. [00:15:50] Speaker 03: So I understand that. [00:15:52] Speaker 03: And I think your case is quite strong on the law that Congress has given the administration the authority to do what it's doing. [00:16:02] Speaker 03: And the Constitution doesn't stop that. [00:16:08] Speaker 03: But I think part of what I heard Mr. Dempsey say [00:16:15] Speaker 03: or maybe it was no implied is that this person was in America for 24 years came here as a child. [00:16:25] Speaker 03: And it was not given any explanation or why after a mere 14 days in Guatemala can't come back to his wife or kids. [00:16:37] Speaker 03: There's an implication there that [00:16:39] Speaker 03: that the government is showing sort of contempt, not just for this person, but for, I think, other people in that situation by not even giving any kind of explanation other than the word of, I guess you said, three consular officials that he's a criminal, even though he has no criminal record. [00:17:08] Speaker 03: I'm not saying this is dispositive, but I think the government would want to assure, give assurance that it doesn't have that kind of contempt. [00:17:27] Speaker 01: I understand your honor's point. [00:17:30] Speaker 01: And again, I would point to the fact that they had three levels of review here and the system that has been set up doesn't require the government to provide any additional evidence. [00:17:41] Speaker 01: And in fact, the government here would only have been required to cite the inadmissibility statute, but it went beyond that and actually provided the fact that it had reason to believe that he was a member of a known criminal organization. [00:17:56] Speaker 01: it did provide some additional factual information. [00:18:03] Speaker 04: So there's even under the judgment that we had a couple of years ago in Roarbach, there's two different ways to look at this. [00:18:09] Speaker 04: One is that there's not a protected interest. [00:18:13] Speaker 04: And the other is that even assuming there is, um, the, [00:18:19] Speaker 04: reasons given by the government were stated enough when you combine the statute plus the additional consideration you took into account that it's it's it's satisfactory. [00:18:30] Speaker 04: Do you agree with me that those are alternate routes reaching the decision and if so what's your view on which is the better route. [00:18:40] Speaker 01: Yes, your honor, I agree. [00:18:42] Speaker 01: And the government's position is that the first route is all that is necessary. [00:18:48] Speaker 01: The court need only decide that there is no constitutional right at issue. [00:18:55] Speaker 04: The second one is also all that's necessary. [00:18:58] Speaker 01: The second. [00:18:59] Speaker 01: That's correct, your honor. [00:19:01] Speaker 04: But I guess I'm asking you, which one do you have a thought on which one is the better route? [00:19:08] Speaker 01: Yes, Your Honor, the first route that Your Honor mentioned, simply recognizing that a U.S. [00:19:15] Speaker 01: citizen does not have a constitutional right to have her non-citizen spouse enter and reside in the United States, would be the preferred route. [00:19:25] Speaker 01: It is the simpler route and is consistent with this court's many decades of precedent. [00:19:32] Speaker 04: Why is that the preferred route? [00:19:35] Speaker 04: I take it you think it's simpler? [00:19:37] Speaker 01: Yes, Your Honor. [00:19:39] Speaker 04: What's non-simple about the second? [00:19:41] Speaker 04: What's less simple about the second? [00:19:44] Speaker 01: The first route would be a broader decision that could be applied in more cases, potentially, whereas the second route, perhaps, is a more narrow way of viewing this case. [00:19:57] Speaker 04: I mean, I don't know. [00:19:58] Speaker 04: Usually, I think, generally, courts prefer to do things more narrowly than more broadly. [00:20:03] Speaker 04: So that seems like it would ogle in favor of the second route. [00:20:07] Speaker 04: You're urging the first round. [00:20:09] Speaker 01: That's that's correct. [00:20:10] Speaker 01: You're on. [00:20:11] Speaker 01: In fact, this court has already held that the first round in or about in twenty twenty. [00:20:17] Speaker 01: The court already recognized that there was no constitutional right violated in that case. [00:20:23] Speaker 01: So the court didn't need to reach the rest of its decision, although it did. [00:20:28] Speaker 01: It didn't have to get there. [00:20:32] Speaker 04: But I guess I would say the same thing about the other route too. [00:20:34] Speaker 04: You can do the second one and then we wouldn't have to reach the first one, I guess. [00:20:37] Speaker 04: So is the rationale for the first one, you think it's more clearly correct, more, you said more simple because it's just completely dictated by precedent? [00:20:53] Speaker 01: Yes, that is correct. [00:20:54] Speaker 01: It is more dictated by precedent and it would [00:21:00] Speaker 01: basically be reaffirming this court's 2020 decision in Warbell, as well as the principles this court articulated 65 years ago in Schwartz. [00:21:19] Speaker 01: The government's citation of a valid invisibility statute here is all that was required. [00:21:24] Speaker 01: Because the refusal here was facially legitimate and bona fide, the court should affirm the dismissal. [00:21:30] Speaker 04: And if your honors have no- Just on the statute alone, it is pretty darn broad to have a statute that refers generally to unlawful activity. [00:21:40] Speaker 01: Your honor, plaintiffs didn't bring a, properly bring a facial vagueness challenge in this case. [00:21:47] Speaker 01: So your honors are limited to the facts of this case. [00:21:52] Speaker 01: And in this case, [00:21:53] Speaker 01: the government did provide a specific factual basis that there was reason to believe that this plaintiff was a member of a known criminal organization. [00:22:04] Speaker 04: Right. [00:22:05] Speaker 04: But I mean, I think you you understandably said that we don't even care about that additional fact that the statute alone would be enough. [00:22:11] Speaker 04: And I guess the question is just it's quite something to have a statute that refers generally to incident. [00:22:19] Speaker 04: Does it say incidentally is one possibility incidentally engage in unlawful activity? [00:22:24] Speaker 04: That's it. [00:22:25] Speaker 04: That's all somebody knows is that [00:22:28] Speaker 04: the statutory ground is that there might be incidental unlawful activity without any specification of the unlawful activity, how incidental it is, nothing like that. [00:22:39] Speaker 04: That alone would be enough. [00:22:42] Speaker 01: That's true, Your Honor. [00:22:44] Speaker 01: That is what the statute says. [00:22:46] Speaker 01: And Congress does have significant authority in this realm. [00:22:51] Speaker 01: And that's how Congress has chosen to write the statute. [00:22:54] Speaker 01: The Supreme Court has never found that the statute was [00:22:58] Speaker 01: unconstitutionally vague. [00:23:00] Speaker 01: This court has never found that statute to be unconstitutionally vague. [00:23:03] Speaker 04: No, I don't think the question is one of vagueness. [00:23:04] Speaker 04: I'm not saying that it's vague. [00:23:06] Speaker 04: I'm just saying that if you agree that there has to be some specification as was presupposed in Justice Kennedy's opinion in Den, that the statute has to speak with some specificity, this one speaks with little specificity, because it just talks generally about unlawful activity. [00:23:25] Speaker 04: It doesn't even require that the unlawful activity be [00:23:28] Speaker 04: particularly likely, such that it's incidental. [00:23:37] Speaker 04: How would you compare that to the statute in dental? [00:23:41] Speaker 01: DIN actually cited the broader bar on terrorist activities. [00:23:47] Speaker 01: So although that that statute contained many subsections that detail various types of terrorist activities, I think there were at least 10 if not dozens of [00:24:01] Speaker 01: of potential activities that could have been contemplated within that. [00:24:06] Speaker 01: So actually Din wasn't all that specific. [00:24:09] Speaker 01: And Justice Kennedy did contemplate the difficulties that would be posed by not giving extremely specific information in his concurrence and noted that even though perhaps Din could more easily mount a challenge to the visa denial if she knew the specific subsection on which the consular officer revived, [00:24:31] Speaker 01: rely, Congress understood this problem. [00:24:33] Speaker 01: And under Mandel, respect for the political branch's broad power over the immigration system extends to how much information the government is obliged to provide. [00:24:43] Speaker 01: So Justice Kennedy did think about this, this problem, and still reached the decision that he did. [00:24:51] Speaker 02: Mandela was a Marxist [00:24:59] Speaker 02: I mean, that was the extent of the attorney general's reasoning for not allowing him to go to Princeton and give a speech. [00:25:09] Speaker 01: That's right, your honor. [00:25:11] Speaker 01: And in that case, the court refused to balance the First Amendment interests of the professors there who were supporting his visa against Congress. [00:25:24] Speaker 02: They argued that we had a right to listen. [00:25:28] Speaker 01: That's first. [00:25:29] Speaker 01: Um, that's correct. [00:25:31] Speaker 01: Sure. [00:25:33] Speaker 03: I return perhaps briefly to your answer to the chief judges question about which route route one constitutional route to kind of getting into the statute that was cited specificity. [00:25:48] Speaker 03: Um, it seems like if we accept your invitation to go route one, [00:25:57] Speaker 03: that the consequence of that is that the government won't have to litigate these cases and won't have to explain in open court why an American citizen like Ms. [00:26:12] Speaker 03: Calendres and her child have been separated from her husband without the government giving any evidence that her husband is a criminal. [00:26:24] Speaker 03: I wonder if you think that's a feature or a bug of going route one. [00:26:35] Speaker 01: That's an interesting question, your honor. [00:26:42] Speaker 01: I suppose that the law wouldn't be changing if your honors went with route one. [00:26:50] Speaker 01: That's already what the circuit precedent here dictates. [00:26:55] Speaker 01: And I also want to make the point that the government here isn't destroying the marriage. [00:27:02] Speaker 01: They're not separating these two. [00:27:05] Speaker 01: Ms. [00:27:06] Speaker 01: Colindres could move to Guatemala. [00:27:08] Speaker 01: They could move together to a third location where both are permitted to reside. [00:27:13] Speaker 01: The government here isn't separating these two. [00:27:17] Speaker 03: No, it's separation or exile. [00:27:21] Speaker 01: Not necessarily as this court said in sports that that of course that was a deportation context, but of course it would put burdens on the marriage and it would impose the choice on the wife of. [00:27:34] Speaker 01: living in the United States without her husband or living abroad with him. [00:27:40] Speaker 01: These are difficult choices, but again, this isn't a situation where it's two private people who are both authorized to live in the United States. [00:27:50] Speaker 01: This clashes with Congress's power to defend [00:27:54] Speaker 01: our borders against danger. [00:27:57] Speaker 03: And I'm with you on whether the government has the power to do this. [00:28:02] Speaker 03: My questions are going more to its exercise of the discretion that it's been given. [00:28:07] Speaker 03: I'm good. [00:28:10] Speaker 04: Let me make sure my colleagues don't have additional questions for you. [00:28:13] Speaker 04: Thank you. [00:28:15] Speaker 04: Serino, Mr. Dempsey, we'll give you the two minutes for rebuttal that you asked for. [00:28:20] Speaker 04: Thank you, Your Honor. [00:28:21] Speaker 05: Working backwards, the facts on this record are uncontroverted that a Hellenic calendars, Mrs. Clanders, could not live and reside in Guatemala. [00:28:29] Speaker 05: There is a letter from a medical provider that is uncontroverted that she has a medical condition that cannot be adequately treated in Guatemala. [00:28:37] Speaker 05: Therefore, life in Guatemala is an alternative to life for the United States is an impossibility. [00:28:43] Speaker 05: Therefore, this action not only affects the conditions of the marriage, but the possibility of the marriage itself. [00:28:49] Speaker 02: How do you distinguish your case from a case in which there's a married couple in the United States and the husband commits a murder and is convicted, sentenced to life? [00:29:00] Speaker 02: Is that a fundamental burden on the marriage? [00:29:06] Speaker 05: Your Honor, that husband got notice of the charges against him, an ability to confront the evidence, and a trial, presumably by a jury of his peers. [00:29:14] Speaker 05: That due process didn't occur here. [00:29:16] Speaker 05: It's just like the Schwartz case, 1958, by this court. [00:29:19] Speaker 05: That was a deportation case. [00:29:21] Speaker 02: But the due process is to the individual, to the husband. [00:29:25] Speaker 02: And the question then becomes, does the due process clause apply to this gentleman in Guatemala? [00:29:33] Speaker 05: The due process clause both applies to him, but more importantly to Mrs. Glenders, the United States citizen involved, because she has an interest in her marriage that the government is depriving her of. [00:29:44] Speaker 02: The Supreme Court has had the due process clause doesn't apply extraterritorial. [00:29:49] Speaker 02: Well, Mrs. Glenders lives in Jacksonville. [00:29:52] Speaker 02: She's here. [00:29:52] Speaker 02: Johnson versus Eisenhower. [00:29:54] Speaker 02: Mrs. Glenders resides inside the United States and she wants her husband here with her and her child. [00:29:59] Speaker 02: But she's not the one that went through the consular office. [00:30:03] Speaker 02: If anybody has any due process rights, and that gets you, the problem that I tried to identify is that under your theory that the wife of the convicted murderer has due process rights. [00:30:19] Speaker 05: Well, she does have minimal procedural due process rights, but those are accorded by the criminal process by which her husband was convicted. [00:30:29] Speaker 05: There has been no notice here. [00:30:31] Speaker 05: We had in Dana a Taliban member. [00:30:33] Speaker 05: We had a Mandela Marxist. [00:30:35] Speaker 05: What is Eddie Klingers? [00:30:36] Speaker 05: Nobody knows. [00:30:37] Speaker 05: That's the problem. [00:30:39] Speaker 05: The government hasn't uttered one specific factual predicate for the arbitrary decision of its consular officer, [00:30:46] Speaker 05: For all we know, the consular officer woke up in a bad mood that day, didn't want to deal with it, busy, busy at the window, denied. [00:30:53] Speaker 05: And remember, this was during the time that there was a lot of controversy about the administration of consular process in Central America. [00:31:00] Speaker 05: Amount of time, your honors, thank you for your consideration. [00:31:03] Speaker 05: Appellants respectfully request to reverse the district court decision. [00:31:07] Speaker 05: Thank you, counsel. [00:31:08] Speaker 05: Thank you to both counsel. [00:31:09] Speaker 04: We'll take this case under submission.