[00:00:00] Speaker 00: Case number 23-5178. [00:00:04] Speaker 00: Catherine Daniella Pacheco-Gueros et al. [00:00:06] Speaker 00: Gulshan Garymova et al. [00:00:08] Speaker 00: Versus Molly Amador, Deputy Consul General and Visa Unit Chief, U.S. [00:00:13] Speaker 00: Embassy in Costa Rica et al. [00:00:15] Speaker 00: Mr. Piston for the et al. [00:00:17] Speaker 00: Ms. [00:00:17] Speaker 00: Ryan for the police. [00:00:26] Speaker 01: Mr. Piston, good morning. [00:00:31] Speaker 02: Good morning, Your Honor. [00:00:35] Speaker 02: Michael Piston upon behalf of the Pellet, Gushen Karamova. [00:00:41] Speaker 02: This court needs to answer today a very easy question. [00:00:44] Speaker 02: Is the mere fact that a visa application was refused three years ago sufficient reason in itself to dismiss a mandamus complaint? [00:00:53] Speaker 02: It's easy because this court already answered it in Mashpee, where it said that the ultimate issue [00:01:01] Speaker 02: as in all such cases, will be whether the time the BIA is taking to act upon the Mashpee's petition satisfies the rule of reason. [00:01:10] Speaker 02: That issue cannot be decided in the abstract by reference to some number of years, but will be dependent upon the complexity of the task at hand, the significance and permanence of the outcome and the resources available to the agency. [00:01:25] Speaker 02: But the lower court did exactly what Mashpee said not to do. [00:01:29] Speaker 02: She decided the issue of whether the delay in this matter was unreasonable simply on the fact that the case had been pending for three years and didn't take into consideration any of the other factors, which Mashpee referred to. [00:01:45] Speaker 02: In fact, she couldn't take into consideration any of these factors because there was no evidence or even allegations in the record as to what it was. [00:01:54] Speaker 02: So in doing so, [00:02:02] Speaker 02: So we should compare this case to that of the Fourth Circuit's decision in Gonzales versus Cusinelli. [00:02:11] Speaker 02: In Gonzales versus Quesadilla, the Fourth Circuit looked at a record which was much more developed than the record here. [00:02:18] Speaker 02: And they still found that the government had not sufficiently satisfied them that even though they were applying, claimed to be applying a first in, first out method, they hadn't satisfied them that it was sufficient to establish that they were really following a rule of reason. [00:02:35] Speaker 02: And therefore they remanded the case back to the district court. [00:02:38] Speaker 02: Here we have a case where the consul didn't even claim to be following a rule of reason, any rule of reason. [00:02:46] Speaker 02: There is simply nothing in the record whatsoever to say how visa applications are being adjudicated in Georgia. [00:02:55] Speaker 02: Rather, the judge just simply said, 10 in three years, that's reasonable to me, case dismissed. [00:03:03] Speaker 05: Now, the government tried to... In this case, Ms. [00:03:06] Speaker 05: Karamova, [00:03:08] Speaker 05: has had a meeting with the council, a hearing with the council. [00:03:14] Speaker 02: Yes, she did. [00:03:15] Speaker 05: And her application was refused. [00:03:18] Speaker 05: Yes. [00:03:19] Speaker 05: They acted on it. [00:03:20] Speaker 05: They said it's refused. [00:03:21] Speaker 05: Denied. [00:03:23] Speaker 05: And then they said, you know, we keep it open for administrative processing, but she has a decision. [00:03:33] Speaker 05: So it's not as though, I understand your point if they still hadn't even had her in for an interview and made a decision, but they've made a decision. [00:03:42] Speaker 05: They've just said, for whatever reason, internally or externally, we're not slamming the case shut, but she's had a decision. [00:03:53] Speaker 02: Virtually every DC district court that has considered that argument has rejected it. [00:03:59] Speaker 02: Because a 221-G refusal is clearly not a final refusal. [00:04:04] Speaker 05: How do we know it's clearly not a final refusal? [00:04:06] Speaker 05: How do we know that? [00:04:10] Speaker 02: Well, because specifically in Karamova's case, it said this is not a final refusal, and we're going to be looking at your case further. [00:04:19] Speaker 05: Well, the Foreign Affairs Manual is quite explicit that a refusal is a refusal, it's a denial, and it remains a denial, and there's nothing pending, even if they're doing administrative processing. [00:04:29] Speaker 05: Administrative processing is sort of whatever they wish to do internally. [00:04:34] Speaker 05: But your client applied, your client got a meeting with the consul, and then your client got a decision that says you are refused, you are denied. [00:04:42] Speaker 05: And whatever they want to do on their own end afterwards doesn't seem to me to implicate [00:04:49] Speaker 02: Your Honor, Section 5 U.S.C. [00:04:51] Speaker 02: 555B requires that an administrative agency bring to a final conclusion a matter presented to it in a reasonable time. [00:05:02] Speaker 05: As far as the Chair is concerned, they've got a final conclusion. [00:05:07] Speaker 02: Well, certainly the district court in five, I don't know how many was it, 11 Iraqis seeking justice versus Kerry disagreed. [00:05:19] Speaker 02: And they said, this is clearly not a final decision. [00:05:22] Speaker 02: And every court that's followed, that's decided the case after five Iraqis, I don't know if it's five or different number, [00:05:30] Speaker 02: They all agreed. [00:05:32] Speaker 05: We're not bound by how district courts rule. [00:05:35] Speaker 05: We get to decide this de novo. [00:05:38] Speaker 05: And so I'm trying to ask you to reason not from, if there's a particular reason in that district court decision you find persuasive, but your complaint was filed because she hadn't even had an interview. [00:05:50] Speaker 05: There's nothing in your complaint that addresses post-denial administrative processing. [00:05:57] Speaker 05: And so I'm trying to understand [00:06:00] Speaker 05: what the argument is that if they have a procedure, an internal procedure that says we're always getting updated information, where we may choose to relook at this again if we get information that seems relevant to us, but as of now you're denied, [00:06:20] Speaker 05: The manual says denied means denied. [00:06:23] Speaker 05: You don't have a pending application anymore. [00:06:25] Speaker 05: You have a final decision on your application. [00:06:28] Speaker 05: What are we supposed to do with that? [00:06:32] Speaker 02: A denial, which clearly is not a final conclusion of the matter, does not satisfy the requirements of the APA. [00:06:38] Speaker 05: This denial was clearly not a final conclusion, whereas we, as you look at our brief... You didn't amend your complaint after she had her interview and her denial. [00:06:47] Speaker 05: Your complaint has no allegations at all about this post-denial delay that you're challenging. [00:06:54] Speaker 02: Because it didn't really make any difference. [00:06:56] Speaker 02: We're not asking for a nominal denial. [00:06:58] Speaker 02: We're asking for a final conclusion. [00:07:01] Speaker 05: But if the State Department says it's not a nominal denial, it is in fact a flat denial. [00:07:07] Speaker 05: But it's to your client's benefit that we will keep the file open in case we obtain information that makes us change our mind. [00:07:15] Speaker 05: That's something entirely to your client's benefit. [00:07:18] Speaker 05: But there's nothing else that addresses that they have. [00:07:23] Speaker 05: There's no regulation that I'm aware of that you've brought to our attention. [00:07:26] Speaker 05: There's no factual allegations in your complaint about any legal right to a conclusion of administrative processing. [00:07:34] Speaker 02: Quite the contrary, 555B says that they have a right to a final conclusion. [00:07:39] Speaker 05: And this clearly was not a final conclusion because of you, because at this point, at this point, all they've said is, we'll keep the file open in case we learn of anything that helps your client. [00:07:49] Speaker 05: How does that help your client to cut that process off? [00:07:54] Speaker 02: The NVC specifically said this is not a final decision and we're going to be reviewing your case more. [00:08:02] Speaker 04: specifically said that it was refusing the application. [00:08:05] Speaker 04: I have a prior question about your legal claim, the complaint sites as the basis of the obligation to act, the Administrative Procedure Act 555. [00:08:18] Speaker 04: But as I read the Supreme Court's decision in Norton versus the Utah Wilderness Alliance, [00:08:31] Speaker 04: You have to have a specific ground for the obligation to act. [00:08:39] Speaker 04: And I don't take that to be finding the APA provision sufficient. [00:08:45] Speaker 04: And you haven't identified any more specific legal duty on the part of the consul to act. [00:08:53] Speaker 01: We'll take a look at the court's decision in Mashpee, Your Honor. [00:08:56] Speaker 04: I agree. [00:08:58] Speaker 04: I think the court's decision in Mashpee cites only to 555, and I find that puzzling for the same reason. [00:09:04] Speaker 01: You find it puzzling? [00:09:05] Speaker 04: I find it puzzling. [00:09:06] Speaker 04: It predates. [00:09:07] Speaker 01: But is it not binding upon the score? [00:09:09] Speaker 04: Well, it predates the Supreme Court's decision in Norton, which builds, I think, further a requirement of specific, pointing to a specific obligation. [00:09:19] Speaker 04: And my assumption is that in Mashpee, everybody understood Bureau of Indian Affairs has a process and an obligation [00:09:27] Speaker 04: for ruling on tribal requests for recognition. [00:09:31] Speaker 04: But you're right. [00:09:32] Speaker 04: Oddly, the case is briefed and decided only under 555. [00:09:36] Speaker 04: And I would salute you. [00:09:37] Speaker 04: But once Norton has now sort of built on that and explained that there's a need for [00:09:49] Speaker 04: for identifying a discrete agency action that the agency is required to take. [00:09:57] Speaker 02: The Administrative Procedure Act states very clearly that an agency is required to bring a matter brought before it to a final conclusion in a reasonable time. [00:10:07] Speaker 02: That is a discrete action. [00:10:09] Speaker 02: That's what this court ruled in Mashpee. [00:10:11] Speaker 02: And I submit that that ruling is binding upon this panel. [00:10:15] Speaker 02: I do not believe the Supreme Court decision reversed Mashpee. [00:10:19] Speaker 04: If I went to the consulate in Georgia and I said, I submitted something and I said, here's my matter. [00:10:29] Speaker 04: You should change your processing for an employment visa to X, Y, and Z. That would, under your reasoning, be a matter brought before it under 555. [00:10:43] Speaker 04: But what I take Norton to be focusing on is [00:10:47] Speaker 04: is that you have to bring a matter on which the agency has a requirement to act. [00:10:52] Speaker 04: And 555 itself does not create that requirement. [00:10:56] Speaker 04: Otherwise, it would cover my presentation to the consul in Georgia of a proposal that people with the last names that begin with K should be processed first. [00:11:07] Speaker 04: They don't have any requirement to act on that, notwithstanding 555. [00:11:13] Speaker 02: Well, with respect, Your Honor, I think you're raising a different issue. [00:11:17] Speaker 02: And that is the definition of what a matter is. [00:11:19] Speaker 02: And you may well be correct that the hypothetical that you provided would not fall within the APA's definition of a matter. [00:11:28] Speaker 02: But I don't think there's any dispute that a visa application is a matter. [00:11:32] Speaker 02: And it certainly is not unreasonable to ask that it be decided in a brought to a final conclusion in a reasonable time, just as this court ruled in Mashpee [00:11:41] Speaker 02: that the question, the probably far more complex question of whether or not a tribal tribe should be recognized should be brought to a final conclusion in a reasonable time as well. [00:11:54] Speaker 02: And I suggest that this court should follow Mashpee. [00:12:00] Speaker 02: But if this court has determined that Mashpee is in error, I think that probably the best thing to do would be to recommend this case for hearing and dying. [00:12:08] Speaker 04: No, I'm not saying that it's an error. [00:12:09] Speaker 04: I'm just saying that the Norton versus Southern Utah Wilderness Alliance further elaborates what's required. [00:12:17] Speaker 04: And that's a Supreme Court case that comes after. [00:12:19] Speaker 02: I'm sorry. [00:12:21] Speaker 02: I didn't hear you. [00:12:22] Speaker 02: I'm sorry. [00:12:23] Speaker 04: The Supreme Court decision [00:12:26] Speaker 04: in Norton versus Southern Utah Wilderness Alliance comes after Mashpee and further elaborates what is required, which is that the claimant identify a non-discretionary duty, a specific duty on which the agency is required to act, a discrete agency action. [00:12:53] Speaker 04: that the agency is required to take. [00:12:55] Speaker 02: And I just don't see how bringing a matter to a final conclusion is not a discrete agency action. [00:13:00] Speaker 04: Well, so would it be, in my hypothetical, but I don't want to be a dead horse. [00:13:05] Speaker 04: It would be a discrete agency action to say that everybody whose last name begins with K gets put at the front of the line. [00:13:12] Speaker 04: But I don't have an underlying legal claim to that. [00:13:16] Speaker 04: And that's what I think the Norton versus Southern Utah Wilderness Alliance is focusing on. [00:13:21] Speaker 02: I think we're both beating dead horses here because I continue to maintain that the APA does provide a discreet action. [00:13:29] Speaker 02: This is what this court ruled in Ashby and I do not see the Supreme Court's decisions overruling it. [00:13:34] Speaker 05: I'll just ask you a quick fact question. [00:13:35] Speaker 05: When did she learn that her application had been refused? [00:13:39] Speaker 02: When did I learn her application? [00:13:41] Speaker 05: Did she learn, or you learned, however it works, that her application had been refused after her consular interview? [00:13:47] Speaker 02: Honestly speaking, I'm not, I'm not, I really can't recall. [00:13:51] Speaker 02: This was, this case, this complaint was filed with the, quite a few cases were all filed together. [00:13:58] Speaker 02: The government was settling them all. [00:14:01] Speaker 02: And then at the very last moment, they said, well, we're not going to settle care. [00:14:04] Speaker 05: Well, at the time you filed the complaint, were you aware that her application, she'd had an interview and been refused? [00:14:13] Speaker 02: To be perfectly frank with you, Your Honor, I would just have to say that what I knew is what I wrote in the complaint, and I really cannot, speaking now, elaborate upon it. [00:14:22] Speaker 05: Okay, so then that gave, that did not address or disclose or identify that any action had been taken on her application, and you actually started with the 2019 date there. [00:14:33] Speaker 05: So I'm to assume that you weren't aware at that point that she had had an interview and been refused. [00:14:39] Speaker 05: Did you start the time? [00:14:40] Speaker 02: I'm really not sure whether or not she had an interview. [00:14:44] Speaker 02: What I do know is that she didn't receive a visa and she did not receive what five Iraqis consider to be a final refusal. [00:14:51] Speaker 04: I have one other fact question, which is in the appendix at page 88, there is an email exchange between Ms. [00:15:03] Speaker 04: Karamova and the embassy in which she says, my attorney submit that she had an interview and that since then she's provided all requested forms and documents the embassy asked. [00:15:20] Speaker 04: And I wonder if there's anything in the record or any knowledge as to when that happened, when the supplemental information was given. [00:15:30] Speaker 02: I'm sorry. [00:15:31] Speaker 02: I really can't elaborate beyond that. [00:15:33] Speaker 02: And incidentally, that attorney wasn't me. [00:15:36] Speaker 02: See, she had her own attorney for consular processing. [00:15:39] Speaker 02: I was only brought in for the mandamus. [00:15:44] Speaker 02: So when you compare this case to Gonzalez versus Cuccinelli, the major difference between this case and Gonzalez is how much better a case the government had in Gonzalez. [00:15:56] Speaker 02: They said, well, at least in Gonzalez, you have provided some evidence that you were following a first in, first out methodology, and even some exceptions. [00:16:08] Speaker 02: But what you've given us is not sufficient [00:16:10] Speaker 02: for us to determine that this is actually a rule of reason. [00:16:13] Speaker 02: Here, the consul gave us absolutely nothing as to how they were adjudicating visas or administrative processing. [00:16:21] Speaker 01: All right, Mr. Piston, we have your order. [00:16:23] Speaker 01: Thank you. [00:16:23] Speaker 01: OK, thank you very much, Your Honor. [00:16:25] Speaker 01: Mr. Ryan. [00:16:39] Speaker 03: Good morning, Your Honors. [00:16:40] Speaker 03: Erin Ryan for the government. [00:16:42] Speaker 03: When reviewing a visa, the State Department has only two options, to issue or refuse it. [00:16:47] Speaker 03: And after a review of her application and an interview, Ms. [00:16:50] Speaker 03: Karamova's visa was refused. [00:16:52] Speaker 03: She had that refusal in January of 2020, three months after she filed her application. [00:16:58] Speaker 03: What she's seeking now is a re-adjudication, which she is not entitled to under the law, claiming that a decision on that re-adjudication is unreasonably delayed. [00:17:07] Speaker 03: But she points to nothing that says that the State Department has a duty to give her that re-adjudication. [00:17:12] Speaker 03: And as the Supreme Court held in Norton, a delay cannot be unreasonable if the action itself is not required. [00:17:19] Speaker 03: Now, while this is styled as a suit seeking mandamus, Ms. [00:17:22] Speaker 03: Karamova is actually asking this court to decide whether the consular officer can continue to withhold the visa based on the initial refusal or if they must make another adjudication. [00:17:33] Speaker 03: And such a review is barred by the doctrine of consular non-reviewability. [00:17:36] Speaker 03: If the court does reach the merits of the claim of unreasonable delay and review of the track factors, the district court's decision should be affirmed. [00:17:43] Speaker 03: Ms. [00:17:44] Speaker 03: Karamova's pleading failed to state a plausible claim for unreasonable delay. [00:17:48] Speaker 03: She has not shown that any of the track factors fall in her favor. [00:17:52] Speaker 03: None of her arguments trying to undermine the district court's decision carry any weight. [00:17:57] Speaker 03: I welcome any questions that the court may have. [00:17:59] Speaker 05: So after denial, [00:18:01] Speaker 05: they say denial asterisks actually we're going to keep it here for administrative processing we'll get back to you if there are only two options or refuse or deny what is that status so this limbo yes so the visa was refused but the state department voluntarily may put an applicant into administrative processing it's an additional [00:18:25] Speaker 03: voluntary process the State Department can undertake if they believe there might be additional information that could assist the applicant in meeting their burden. [00:18:33] Speaker 03: So it means denial-ish? [00:18:37] Speaker 03: No, Your Honor, it is a final denial. [00:18:39] Speaker 05: It's not a final denial if they said, but hang on, we think there might be some information that's going to help you and we might change our minds. [00:18:45] Speaker 05: That's the reason you put an administrative process. [00:18:48] Speaker 03: I think a way of thinking of it, Your Honor, is to compare it to district court proceedings. [00:18:52] Speaker 03: If a district court were to dismiss a plaintiff's case on a motion to dismiss, for example, just because that plaintiff can then appeal or seek re-adjudication or reconsideration, no one would say that the district court's decision is not a final decision or that it doesn't have any effect. [00:19:07] Speaker 05: Well, once the Rule 59 motion is filed, it's actually not appealable. [00:19:11] Speaker 03: Your Honor, the visa final. [00:19:13] Speaker 03: But no one would say that the district court decision is an interim decision because it may be later reconsidered or that it doesn't have any effect. [00:19:20] Speaker 04: If the district court said, well, I'm going to deny your motion for summary judgment, but I'm not sure that I have all the information records actually I'm going to keep it open and accept any information you may have and then you know [00:19:38] Speaker 04: within due time after I have that information, I'll give you a final result. [00:19:44] Speaker 04: I'm not sure that we would treat that as a final decision. [00:19:46] Speaker 03: That is not what happened here, Your Honor. [00:19:48] Speaker 03: She was told you did not meet your burden to prove you were eligible. [00:19:51] Speaker 03: Your visa is refused. [00:19:53] Speaker 03: However, you will be given another attempt. [00:19:56] Speaker 03: And typically administrative processing is when there is additional information outside of the applicant's control. [00:20:01] Speaker 03: that might be needed. [00:20:02] Speaker 03: For example, if there are security concerns, if an investigation needs to take place from another agency, if there are other information, we want people to come to this country for diplomatic reasons, we give them another chance, but it's not required under the law that we give them that second chance. [00:20:17] Speaker 04: That sounds very reasonable, but it also doesn't sound like what the record reflects the agency said. [00:20:25] Speaker 04: We reviewed our console records and found that the case has been refused. [00:20:29] Speaker 04: under INA Section 221G. [00:20:32] Speaker 04: And it is pending the completion of administrative processing in order to verify qualifications for this visa. [00:20:39] Speaker 04: A decision on this case cannot be made until the consular section finishes its review. [00:20:47] Speaker 04: Visa applications are adjudicated in accordance with provisions of the INA. [00:20:51] Speaker 04: We cannot predict when the adjudication of the application will be completed. [00:20:58] Speaker 04: Much more of that narrative sounds like we're not done, we're thinking about it, we can't make a decision, we're aware of your concerns, and we'll let you know when we're done. [00:21:14] Speaker 03: And I think for the administrative processing, it is open. [00:21:17] Speaker 03: She is still in administrative processing. [00:21:19] Speaker 03: But there's nothing under the law, the statutes, the regulation that require them to take the second look. [00:21:24] Speaker 03: No email or form response from the embassy can create a legal duty where there is none already in the statutes or the law. [00:21:31] Speaker 05: And that just sounds like it's a big wink when they say you will refuse or deny or you will grant or we deny. [00:21:39] Speaker 05: You have two options. [00:21:41] Speaker 05: That's how you started. [00:21:41] Speaker 05: And you go. [00:21:44] Speaker 05: but we don't really mean it yet. [00:21:46] Speaker 05: We don't know if we really mean it. [00:21:48] Speaker 05: It sounds like you're creating a third option. [00:21:52] Speaker 05: If there are three options on the table, then we don't know yet actually which one is her final answer. [00:22:01] Speaker 03: The final answer is that her visa was refused. [00:22:03] Speaker 05: Why are you still looking? [00:22:06] Speaker 03: because we are giving her a second chance to attempt to meet her burden. [00:22:09] Speaker 05: Does she get an answer on second chance? [00:22:11] Speaker 05: Is second chance treated like a new application then you get new information? [00:22:15] Speaker 03: There's nothing mandatory that says that this administrative processing or re-adjudication needs to happen. [00:22:20] Speaker 03: At the end of the day, do you end up refusing or denying this second look? [00:22:23] Speaker 03: It is the State Department's practice, yes, to re-adjudicate once the administrative processing is complete. [00:22:28] Speaker 05: Then it sounds like it's either you are treating this decision as sort of a renewed application, getting new information, at which point you have to refuse or deny, and their arguments about timing all remain exactly the same, or [00:22:45] Speaker 05: you didn't, this is some sort of fake process here and you really meant it the first time when you said deny. [00:22:50] Speaker 05: Either you meant deny or you didn't mean it. [00:22:53] Speaker 05: And it's very confusing to me what this administrative processing is. [00:22:59] Speaker 05: If you didn't mean it, that seems very relevant to this case. [00:23:03] Speaker 05: If you did mean it, that seems very relevant to your side of the case. [00:23:08] Speaker 03: Yes, the refusal [00:23:09] Speaker 03: In your terms, the State Department did mean it. [00:23:11] Speaker 03: It is a refusal. [00:23:12] Speaker 03: She doesn't have a visa. [00:23:13] Speaker 03: She can't come to this country. [00:23:15] Speaker 05: However, there's how she was before she even applied. [00:23:18] Speaker 05: She couldn't come to the country. [00:23:19] Speaker 05: She didn't have a visa. [00:23:20] Speaker 05: That doesn't to say that she can't come to this country because she doesn't have a visa doesn't mean anything. [00:23:26] Speaker 05: If in fact you are still in the process of deciding whether she will get a visa. [00:23:31] Speaker 03: The State Department is looking at whether there is additional information that may assist her. [00:23:37] Speaker 05: So you didn't have full information when you made that first decision? [00:23:41] Speaker 03: No, Your Honor. [00:23:41] Speaker 03: I don't think that's the proper way to look at it. [00:23:43] Speaker 03: It is the applicant's burden to prove her eligibility. [00:23:46] Speaker 03: She did not do that. [00:23:47] Speaker 03: Her visa was refused. [00:23:49] Speaker 03: However, voluntarily, the State Department has said, we're going to give you another chance to meet your burden. [00:23:54] Speaker 03: It's not something they're required to do. [00:23:56] Speaker 03: There's no statute that says there's a specific timeline that it has to happen in. [00:24:00] Speaker 03: And every case that's in administrative processing is very different, fact-specific, and requires different resources to complete. [00:24:07] Speaker 05: This is a 12b6 motion that you brought. [00:24:11] Speaker 05: Yes, Your Honor. [00:24:14] Speaker 05: Which means we can only look at the face of the complaint. [00:24:17] Speaker 05: And it sounds like what this administrative processing is, what it entails, what it means internally within the State Department, [00:24:27] Speaker 05: is quite unknown, hugely relevant to the answer in this case, but it's simply something we don't have any law or facts on, on the face of this complaint. [00:24:38] Speaker 05: So why isn't, if you want the chance to create a record as to what administrative processing is legally and factually, why isn't the right answer here that [00:24:49] Speaker 05: 12B6 was, we can't uphold a 12B6 grant based on something that's not on the face of the complaint and is not something that I even see in regulation or statute as existing. [00:25:04] Speaker 05: So we can't take judicial notice of anything. [00:25:07] Speaker 05: Why isn't the right answer then to remand and say, develop your record on this and then let the district court figure out what's going on. [00:25:13] Speaker 05: Because it just seems to be two different stories here. [00:25:16] Speaker 03: Well, I think there's a few things there, Your Honor. [00:25:18] Speaker 03: If we're looking at the complaint, it is devoid of any facts that discussing administrative processing, there's no claim that the State Department is not [00:25:26] Speaker 03: adjudicating applicants that are in administrative processing. [00:25:29] Speaker 03: So there's no claim there. [00:25:30] Speaker 03: The complaint is- Definitely a claim there. [00:25:33] Speaker 05: She filed in 2019 and she has as yet to have a final answer. [00:25:38] Speaker 05: And I know you say, we told you no, but we're still looking and we're keeping it open and we're going to make another decision after we're done administrative processing. [00:25:46] Speaker 05: So I am hypothesizing, at least for this question, that that's not a final answer that she's received. [00:25:52] Speaker 05: Those allegations are there. [00:25:53] Speaker 05: I filed, I don't have a final answer. [00:25:57] Speaker 03: We understand that, Your Honor. [00:25:58] Speaker 03: We disagree. [00:25:58] Speaker 03: We think this is a final answer. [00:26:00] Speaker 03: And we would also. [00:26:00] Speaker 03: You said in your own words, it's not because another answer is coming, correct? [00:26:04] Speaker 03: It is the State Department's practice to re-adjudicate. [00:26:07] Speaker 05: And you said, and that's what you said to her, she's an administrative processing. [00:26:11] Speaker 05: And I thought you told me, if I misunderstood, please correct me, that there will be a final answer when you're done with this administrative processing. [00:26:19] Speaker 05: That is the State Department's practice. [00:26:20] Speaker 05: OK. [00:26:21] Speaker 05: So there will be a second answer. [00:26:22] Speaker 03: We can't say that for sure in her case. [00:26:24] Speaker 03: We don't know why she's an administrative processing. [00:26:26] Speaker 03: And not every case that goes through administrative processing gets a second re-adjudication. [00:26:31] Speaker 03: But it is the State Department's practice whenever possible that they do re-adjudicate based on that fact-specific requirements. [00:26:37] Speaker 05: Re-adjudication could still be, never mind. [00:26:39] Speaker 05: We didn't find anything helpful to you. [00:26:40] Speaker 05: We only found things hurtful. [00:26:41] Speaker 05: But she would be notified at the end of the administrative processing. [00:26:44] Speaker 05: I assume that's your practice. [00:26:46] Speaker 05: Yes, Your Honor. [00:26:47] Speaker 05: And that happens whether it's up, down, or no change. [00:26:51] Speaker 03: I think it's also important to note that this idea. [00:26:54] Speaker 05: That's, of course, nowhere in the record. [00:26:56] Speaker 05: I'm sorry? [00:26:57] Speaker 05: That's nowhere in the record, this whole administrative process. [00:26:59] Speaker 05: I don't know how they're supposed to know about it. [00:27:02] Speaker 03: She was told at her interview that her visa was refused, but she was being placed in an administrative process. [00:27:06] Speaker 05: I understand, but no one understands what that means. [00:27:08] Speaker 05: I'm still not sure I understand what it means. [00:27:11] Speaker 05: There's no record here. [00:27:12] Speaker 05: And if you can tell me what I can take judicial notice of to understand what this processing entails, let me know. [00:27:20] Speaker 03: Yes, Your Honor. [00:27:20] Speaker 03: On the State Department's website, they do detail what administrative processing is, what it involves, and what their process is. [00:27:26] Speaker 03: I'm happy to provide that specific link to the court if that's necessary. [00:27:30] Speaker 03: But it is on the State Department's website. [00:27:32] Speaker 05: Does it explain on there how that implicates the status of the initial decision? [00:27:37] Speaker 03: It doesn't, because the initial decision is a decision. [00:27:40] Speaker 03: That is the refusal. [00:27:42] Speaker 03: Her visa has been refused. [00:27:44] Speaker 03: The State Department could have said, you're refused. [00:27:45] Speaker 03: Thank you. [00:27:46] Speaker 03: Goodbye. [00:27:46] Speaker 03: But do you think that we will give you an answer when we're done with administrative processes? [00:27:50] Speaker 03: It says they may. [00:27:51] Speaker 03: They may give another answer, because there may be some new information that shows they are eligible. [00:27:55] Speaker 03: But there could be information that reaffirms the refusal. [00:27:59] Speaker 05: Is administrative processing distinct from when you ask the applicant to provide additional information, or is that part of administrative processing? [00:28:05] Speaker 03: That is a type of administrative processing, Your Honor. [00:28:07] Speaker 05: Okay, so does she supposed to know somehow? [00:28:10] Speaker 05: Is there something we can take additional notice of that lets her know whether you're getting information, want information from her or you want information from other entities or both? [00:28:19] Speaker 03: If there was additional information required, she would have been informed at the interview, but the reasons behind the denial are clearly barred under constant unreviewability. [00:28:26] Speaker 03: She wouldn't be entitled to know [00:28:28] Speaker 03: the specific reasons. [00:28:30] Speaker 05: I'm sorry, what you're doing the administrative processing for not for the decision, but what it is that she's being administratively processed for getting information from somewhere else or from her or from both. [00:28:38] Speaker 03: That's not information we have in the record, nor should it be under constant unreviewability. [00:28:42] Speaker 03: The State Department needs to be able to. [00:28:44] Speaker 05: That's not a decision. [00:28:45] Speaker 05: That's just what kind of administrative processing is she in? [00:28:48] Speaker 05: That's not a decision by the consul on her visa application. [00:28:53] Speaker 05: It's just a categorization. [00:28:55] Speaker 05: It's no more unreviewable. [00:28:57] Speaker 05: In fact, that you've talking to us about administrative processing, we would like to make a ruling based on that. [00:29:02] Speaker 03: I understand. [00:29:02] Speaker 03: The second circuit has expanded constant unreviewability to involve the entire process of a visa. [00:29:09] Speaker 03: review, and that would include the reason for the administrative processing because it would necessarily indicate what was missing from the application or what steps the State Department was currently taking, which the doctrine protects to allow the State Department to do the work that they need to do and safely and securely. [00:29:25] Speaker 04: In this case, we have the email exchange where Karamova said you asked for more, I gave you everything you asked for, and we don't know [00:29:35] Speaker 04: whether there's anything else, the government hasn't said, oh, we need more from you, or that's fine. [00:29:40] Speaker 04: Everything we need from you has been provided. [00:29:45] Speaker 03: Correct, John. [00:29:46] Speaker 03: All that's in the record is that email. [00:29:47] Speaker 03: And she's not entitled to anything more than that. [00:29:49] Speaker 03: That's correct. [00:29:50] Speaker 03: As a non-resident, non-citizen, she's not entitled to any more information. [00:29:54] Speaker 04: Now, if we were to accept the government's view here, it seems like that would invite any government that is [00:30:03] Speaker 04: chronically delayed in its action to adopt this kind of a process, to say denied, but of course, we'll still look at this. [00:30:15] Speaker 04: And if it occurs to us that maybe there is something here, we'll let you know. [00:30:20] Speaker 04: And why isn't that deeply problematic? [00:30:27] Speaker 03: I think it's the way to think about it. [00:30:29] Speaker 03: Your honor is not that they're holding it in abeyance. [00:30:32] Speaker 03: If something occurs to them, she did not meet her burden. [00:30:36] Speaker 03: They told her that. [00:30:37] Speaker 03: But and they could just send her on her way with that refusal. [00:30:40] Speaker 03: But the State Department wants to encourage people to come here. [00:30:43] Speaker 03: We want to assist people to meet their burdens. [00:30:45] Speaker 03: So we're giving her this second bite at the apple, so to speak. [00:30:48] Speaker 03: And the State Department is assisting her. [00:30:50] Speaker 03: Perhaps there's information with other agencies. [00:30:52] Speaker 03: Perhaps there's other information out there that the State Department can gather on her behalf that might assist her in meeting her burden on the re adjudication. [00:31:00] Speaker 03: But none of that is required. [00:31:02] Speaker 03: There's nothing that says the State Department must give these applicants a second chance to prove their burden. [00:31:11] Speaker 05: Actually, one of one other quick question there's you would refer here to a status called withholding, which is not one of your [00:31:19] Speaker 05: grant or deny options. [00:31:21] Speaker 05: And I know that phrase withholding shows up in our Bantai case and our Savadra case. [00:31:28] Speaker 05: What does withholding mean? [00:31:30] Speaker 03: Withholding is a refusal. [00:31:32] Speaker 03: The visa has been kept. [00:31:34] Speaker 05: Grant, refuse, withholding. [00:31:37] Speaker 05: It's treated as a third category. [00:31:39] Speaker 05: Not under the regulations. [00:31:40] Speaker 05: So withholding means, whatever the phrase is there, that means actually denied. [00:31:45] Speaker 05: It means refused. [00:31:46] Speaker 05: Refused. [00:31:46] Speaker 03: Yes. [00:31:47] Speaker 03: You don't do deny. [00:31:48] Speaker 03: You just do refuse. [00:31:48] Speaker 03: We do. [00:31:49] Speaker 03: Under the State Department regulations, yes. [00:31:50] Speaker 03: They use issue or refuse. [00:31:52] Speaker 04: Issue, refuse, or discontinue granting. [00:31:54] Speaker 03: Yes. [00:31:54] Speaker 03: Or revoke, I think is the associated phrase with that. [00:32:00] Speaker 04: So discontinue granting doesn't mean discontinue the process toward a potential grant. [00:32:04] Speaker 04: It means revoke. [00:32:06] Speaker 04: That's my understanding, Your Honor. [00:32:09] Speaker 04: Yes. [00:32:09] Speaker 04: On the district court said that the government uses a first in, first out rule of reason. [00:32:19] Speaker 04: I don't see that anywhere in the record. [00:32:23] Speaker 04: And I take it you don't either. [00:32:27] Speaker 03: On the track factors for the first in, first out rule of. [00:32:30] Speaker 04: Yeah, assuming that there's jurisdiction and we're looking at whether the government applies any rule of reason to processing these applications [00:32:38] Speaker 03: under the INA? [00:32:40] Speaker 03: So the government, first of all, is entitled to the presumption of regularity. [00:32:44] Speaker 03: And the interview scheduling is done on a first in, first out basis. [00:32:49] Speaker 04: Here. [00:32:49] Speaker 04: Know that? [00:32:50] Speaker 04: Is there anything in the record to show that? [00:32:54] Speaker 03: I think the timing of her application would show that. [00:32:57] Speaker 03: She applied in October. [00:32:58] Speaker 03: She had an interview by January. [00:33:00] Speaker 03: So it was only three months between application and interview and refusal. [00:33:06] Speaker 04: I mean, it's not inconsistent with an inference that it's first-in-first-out, but there's nothing. [00:33:10] Speaker 04: There's no affidavit saying, we do the interviews on first-in-first-out. [00:33:13] Speaker 04: We really don't have anything. [00:33:14] Speaker 04: I mean, it was on a motion to submit this, to be sure. [00:33:17] Speaker 03: Yes, Your Honor, but it is Ms. [00:33:19] Speaker 03: Karamova's burden to show that these track factors fall in her favor and that there is no rule of reason being applied. [00:33:25] Speaker 03: And here, the allegations in the complaint are very conclusory. [00:33:28] Speaker 03: similar to the Dacosta case where this court found that conclusory statements that they're not applying a rule of reason is not sufficient to support that that track record. [00:33:37] Speaker 03: Yeah, there were declarations. [00:33:38] Speaker 04: I mean, there's, you know, the government often will come in because there are jurisdictional implications. [00:33:42] Speaker 04: And so even though it's, you know, rule 12 motion dismissed, it could be rule 12B1 and the [00:33:48] Speaker 04: And it's just striking that in this case, there's nothing from the government saying, hey, this is how we do it. [00:33:54] Speaker 04: We have a rule. [00:33:55] Speaker 04: We have a process. [00:33:56] Speaker 04: We're following the process. [00:33:58] Speaker 04: Nothing like that. [00:34:01] Speaker 03: Yes, Your Honor. [00:34:01] Speaker 03: There is nothing like that in the record. [00:34:03] Speaker 03: But I think looking at that timeline indicates that. [00:34:05] Speaker 03: And I also think [00:34:07] Speaker 03: The complaint claiming that the three to four year delay shows no first and first out ignores the undisputed fact that she had a decision on her visa three months after the application. [00:34:17] Speaker 03: And now we're in administrative processing, which is different than that initial adjudication where that first and first out would be applied. [00:34:25] Speaker 05: Your website says this administrative processing will be done in accordance with department procedures. [00:34:32] Speaker 05: Where are those procedures? [00:34:33] Speaker 05: Where can I see those? [00:34:35] Speaker 03: I'm not sure your honor. [00:34:36] Speaker 05: I'm happy to file a supplemental if your honor would like written procedures somewhere I believe they would be probably the State Department regulations or internal procedures and then it says it would be helpful if you would submit that yes, and it also says when administrative processing is required When is it required? [00:34:54] Speaker 03: It depends on the each case the consulate officer where's the standard for deciding whether it's required or not and [00:35:02] Speaker 03: So on their website, it says an officer may determine that additional information from sources other than the applicant may help establish. [00:35:11] Speaker 03: And that is when it would warrant a further administrative process. [00:35:14] Speaker 05: I know, but to keep reading down, it says when administrative processing is required, the consular officer will inform the applicant at the end of the interview. [00:35:22] Speaker 05: So what I would like to know is, [00:35:24] Speaker 05: when is it required and where can I take, where is something that I can take judicial notice of to understand that meaning of when it's required? [00:35:32] Speaker 05: I think that means... You keep saying it's voluntary discretionary, but the website you refer me to says when it's required. [00:35:39] Speaker 03: I think that means when the officer decides that it is [00:35:42] Speaker 03: like it's warranted. [00:35:43] Speaker 03: That's what you're telling me. [00:35:44] Speaker 05: But I can't take traditional notice of that with all respect to your effort to be helpful here. [00:35:50] Speaker 05: If something's if your website says it may sometimes be required. [00:35:56] Speaker 05: Don't we need to know what that means? [00:36:00] Speaker 03: Yes, sir. [00:36:00] Speaker 03: I only have the information on the website. [00:36:02] Speaker 03: That's how I read that. [00:36:04] Speaker 03: That it is when they have decided that it's warranted and perhaps it's just a different word choice when they say it's required. [00:36:10] Speaker 05: There's a very different thing between [00:36:12] Speaker 05: warranted or in our discretion and required. [00:36:14] Speaker 05: And since you mentioned procedures before, it would be helpful if whatever, if there's anything State Department has that says when it's required, that would be very helpful to know. [00:36:24] Speaker 05: Yes, Your Honor. [00:36:24] Speaker 04: Can I ask you to, in your view, does a consular official have any non-discretionary obligation to adjudicate an immigrant visa application? [00:36:35] Speaker 03: In the first instance? [00:36:36] Speaker 03: At all. [00:36:37] Speaker 04: um respectfully that's not a question that's before this court um because her visa application was reviewed and rejected well if we were it is before this court because as opposing counsel pointed out a lot of the districts and the ninth circuit have said that the refusal is not actually [00:37:01] Speaker 04: action. [00:37:01] Speaker 04: And if we were to agree with that, then we would have to figure out whether that action, or whether there is a requirement of a non-discretionary obligation to adjudicate an immigrant visa application. [00:37:19] Speaker 03: I think whether or not there is a duty to adjudicate in the first instance, I don't know that it's in dispute that they fulfilled that duty here, if we assume it is without deciding. [00:37:27] Speaker 03: You just gave me the same answer that I said I wasn't. [00:37:30] Speaker 04: Assuming for purposes of the question that I disagree with you, if there is an application pending, is there any duty on a consular officer, non-discretionary duty, to adjudicate it, if there were one pending? [00:37:48] Speaker 03: In the first instance, for a first adjudication? [00:37:51] Speaker 03: At all. [00:37:52] Speaker 04: First adjudication or after denial? [00:37:55] Speaker 03: After denial, there is definitely no. [00:37:57] Speaker 03: So in the first instance? [00:37:58] Speaker 03: In the first instance, you are correct that different courts have come down different ways on this. [00:38:04] Speaker 03: There is case law saying that there is no duty to adjudicate in the first place. [00:38:09] Speaker 03: But again, that's not something the parties have really grappled with here because she did get an initial adjudication. [00:38:15] Speaker 04: Well, the plaintiff says there's a duty under the Administrative Procedure Act. [00:38:19] Speaker 04: 555B and what's your position on that? [00:38:22] Speaker 03: 555B is very open-ended language and there's no reference to visas. [00:38:27] Speaker 03: There's no specific unequivocal command ordering a precise definite act that the Norton case requires from the Supreme Court. [00:38:35] Speaker 04: so I mean when we're talking about there's no reference either to tribal recognition and we held in mash p that 555b was created a non-discretionary obligation to adjudicate a tribal recognition petition yes honor as you pointed out to my um opposing council norton came after mash p I also think the facts of mash p distinguish it from here I think [00:39:00] Speaker 03: the Department of Interior reviewing those types of applications is very different than the State Department reviewing a visa application, where there are a number of statutes and case law that says how a visa is adjudicated and what the State Department does is in the discretion of the State Department and the legislative and executive branch. [00:39:20] Speaker 03: And the judiciary is not going to climb in and second guess what happens there. [00:39:24] Speaker 03: But not whether, not whether it does so. [00:39:27] Speaker 04: I mean, you yourself said that either [00:39:29] Speaker 04: deny or grant? [00:39:30] Speaker 04: I mean, is that such a hard question to answer? [00:39:34] Speaker 04: Is it your position that the statutory requirement under 1202B, providing that all immigrant visa applications shall be reviewed and adjudicated, that they don't actually have to? [00:39:52] Speaker 03: I'm not going so far as to say that, but courts have said that 1202B is not a source of a clear nondiscretionary duty. [00:40:00] Speaker 04: But again, the government seems to have read it differently in the regulation that I thought you were citing, which is requiring a consular officer to issue the visa or refuse the visa or discontinue granting the visa. [00:40:14] Speaker 04: It's requiring action, no? [00:40:17] Speaker 03: Yes, Your Honor. [00:40:19] Speaker 03: I don't think that goes so far as to say that there is a non-discretionary clear duty. [00:40:23] Speaker 03: And the question of whether 1202B requires the adjudication in the first place is actually an open question pending before this court in the Goodluck case. [00:40:36] Speaker 05: I think you just wanted a quick question. [00:40:37] Speaker 05: You referenced that you do this administrative processing for diplomatic reasons. [00:40:45] Speaker 05: Yes, Your Honor. [00:40:47] Speaker 05: Where could I take judicial notice that administrative processing is done for diplomatic reasons? [00:40:54] Speaker 03: Perhaps diplomatic is not the right term. [00:40:56] Speaker 03: It is the State Department's policy. [00:40:59] Speaker 03: We don't want to. [00:41:00] Speaker 05: Where is this policy that I could take judicial notice of? [00:41:04] Speaker 03: I don't know that it's an official policy, Your Honor. [00:41:06] Speaker 03: It is the State Department's practice that we want people to come to this country. [00:41:09] Speaker 03: We want to give them that chance. [00:41:10] Speaker 05: Is there anything we can take judicial notice of, or is this just something factually that needs to be developed? [00:41:14] Speaker 03: I'm not sure, Your Honor. [00:41:15] Speaker 03: I'm happy to check and get back to the court on that. [00:41:21] Speaker 05: All right. [00:41:22] Speaker 03: Thank you, Counsel. [00:41:22] Speaker 03: Thank you very much for your time. [00:41:29] Speaker 01: Does Mr. Piston have any time? [00:41:31] Speaker 02: I know I overran my prior time. [00:41:33] Speaker 02: Do I still get two minutes? [00:41:34] Speaker 01: Why don't you take two minutes? [00:41:35] Speaker 02: Okay. [00:41:37] Speaker 02: First of all, Your Honor, the government made reference to a presumption of regularity as an explanation of why [00:41:44] Speaker 02: She thought that the consul must be doing things on a first in, first out. [00:41:48] Speaker 02: But the presumption of regularity presumes that government officials will comply with the law. [00:41:53] Speaker 02: There's no law requiring the consul to process cases on a first in, first out basis. [00:41:59] Speaker 02: Rather, that comes from the rule of reason in the track case. [00:42:03] Speaker 02: So the presumption of regularity doesn't really apply here. [00:42:08] Speaker 02: Second of all, I'd like to point out the fact that even though she did say that [00:42:14] Speaker 02: the counsel's process case on a first in, first out. [00:42:19] Speaker 02: There's absolutely nothing in the plaintiff's complaint, certainly, that says that. [00:42:25] Speaker 02: And therefore, this is not something that this court can consider unless, of course, they take it under judicial notice. [00:42:32] Speaker 02: And there's nothing to judicially notice here, except this argument and allegation exists nowhere except in the argument of opposing counsel. [00:42:43] Speaker 05: Also, I'd like to do with the fact that your complaint alleges that she filed in 2019 and no action has been taken was taken on her application when in fact, she'd had an interview and a decision called refused. [00:43:00] Speaker 05: But that didn't appear in the complaint. [00:43:02] Speaker 05: What are we supposed to do about that? [00:43:05] Speaker 02: Your honor, I don't have the exact language of the complaint in front of me. [00:43:10] Speaker 02: If I use those words. [00:43:12] Speaker 05: It doesn't say that she had an interview and that she has a decision that says it's denied, but we're doing some administrative processing. [00:43:19] Speaker 05: That's not in there. [00:43:22] Speaker 02: What I'm sure we did say was that her visa was neither grant issued or finally refused. [00:43:28] Speaker 02: And that's our position in this matter. [00:43:29] Speaker 02: And whether she was interviewed or not really is neither here nor there. [00:43:33] Speaker 05: The complaint was all about no action. [00:43:35] Speaker 05: It's a very different question when there has been action and then there's another layer of action from no action. [00:43:44] Speaker 02: Your honor, if I might be allowed to file a supplementary brief on that matter, I'm quite certain that we did take the position that the visa had not been refused or issued. [00:43:54] Speaker 01: I'll let you know about that. [00:43:56] Speaker 02: Okay, thank you. [00:43:57] Speaker 02: Thank you very much.