thousand and six congress for the first time in the nation's history barred u s citizens from petitioning for therefore no it is under the adam walsh act citizens who have been convicted of a specified offense against a minor can no longer sponsor their parents children or spouses to immigrate to the united states held that and i know they're not exactly in the same posture and i know that in some of the cases that i've been able to look behind i haven't looked at all of them the arguments were not the same as the ones that are being made here but nevertheless there are five four five circuits which say that the d h has his decision either through acct the secretary or through u s c i s to apply a beyond the reasonable doubt standard is so intertwined with the ultimate decision on the grave risk exception that it's non reviewable so what do you think about those cases well i don't think any of those cases apply or honor and that simply as you noted you know the claims we're making here weren't addressed by those cases because the point that's never raised them but probably they did raise in part the the argument that the secretary or u s c i s had improperly used for some reason not the ones you're of addressing here a different proof standard right there and those cases hell that the designation of a higher proof standard was in the secretary's discretion within the statute and the problem is is that it's not evidence as the standard for all administrative immigration proceedings and west there's a lot to the contrary here there isn't and violating that regulation isn't a discretionary decision secretaries and have any discretion to violate review correct and then i'll just say and then just if you are correct to remand and then tell the appropriate authorities to apply the correct burden of proof standard judicial review by the general bar under eight u s c twelve fifty two a to b that bars courts as specifies courts from review any discretionary decisions so you could have the word discretion in the provision and courts would be able to review the discretionary decisions but the issue is in the context of immigrant visa petitions the board of immigration appeals by regulation actually has jurisdiction to review denials by the h s to know so that sort on reviewable which is actually you have any do you have any article three cases that read the language that way that the decision required board on the show that he pose no risk to his wife or the criminal beyond any reasonable doubt standard doing so violated the president decision that i've already mentioned matter to eighth which set preponderance of the evidence as a standard for all administrative immigration proceedings and i will point out one of the cases that the government relies on grammar from the eighth circuit that's the only case that actually matt mentioned matter to eighth but that case only distinguished a wave on the basis that it was quote in another context to be sixteen and that requires us yes to disclose adverse evidence used as a basis for that and i'll provide the petitioner with a meaningful opportunity to rebut that evidence yes he has violated that regulation by rely on these supposedly country condition reports  agency almost treating it like a twelve b six dismissal in that respect you don't address it you just send it back and make sure that the district court has everything before it before rules from the supreme court violating an agency's own regulations is not and it's within its discretion so her party does say that courts can review the non discretionary aspects of a decision and this case the violation of one of three da three c in concert with a matter of choice with that that is a not discretionary action because it's a violation of the agency's own regulation and what does sol what counsel and under viewable discretion mean if it means that we get her views and say well you didn't take this into by using the beyond the reasonable doubt is there to prove you can see that whatever the agency does at the end of the day right is unreviewable the ultimate decision yes applies doesn't create a problem that the secretary is going to be applying beyond reasonable doubt in one set of circuits and a preponderance in the circuit i don't think so your honor because that they've been applying the wrong stare this entire time if anything you know the district court would be able to clarify the choice it is the standard through the regulation in the second that has happened in the past by the way where a couple of circuits here we have more than just a couple but a couple of circuits have sort of said ok you're doing the right thing in a firm with a b i has done other circuits then come behind and say no that's wrong to be  in correct we're vacating and re man being in with the b i has done is not entitled to any deference or weight told to be a to start all over again and then those other circuits go back and say oh we may have gotten it wrong and so that happens sometimes right it's just this really swing into the the argument that you've got i read this current patty eleventh circuit case forward backward in the how it came back for a motion for reconsideration and i usually try not to ask a question unless i'm really bothered by something now the eleventh circuit and i was in reading some of their other says look we as one panel are not going to be able to undo another panel unless the supreme court or the then bank decision has occurred would you please explain to me how you're going to get around her patty as to what it says on the issue of the jurisdiction and that they did not follow their own regulation when you've got two divergent statements by the agency as to what the burden is and right now for me i can't speak for the panel you've got a hard row to hold to get around kirkpatrick so help me out there of course your honor well i i hope i can so yes i'd like to address immigration proceedings in all requests for immigration benefits is there a standard of proof a preponderance of the evidence matter child way of specifically held that in most requests for immigration benefits in general the standard will be preponderance of the evidence matter of child waits was a agency decision that applied in a completely different context it was a naturalization proceedings  and there if i could dig a little deeper the agency was interpreting the phrase in the statute eight u s c fourteen twenty seven b and that is the language to the satisfaction of the attorney general  to those decisions and that is in cases where there is not another standard specified by law and if i could just note that the to the satisfaction of the attorney general language also exists in other portions of the a namely eight u s c l m fifty four a to double by a marriage fraud provision it also exists in combination with a clear and convincing evidence standard so i make that point to say that the the language at issue in child rape was the to the satisfaction of the attorney general language which can have or can bear a different standard of proof when language is provided by congress if you're asking us to do that my personal feeling is that that's merits based that's not jurisdiction based in other words that i know what's your alternative argument i know it's not your your first baseline argument but that alternative argument has merit based in other words it's it is their argument is that us cia's violated its own rules and regulations and procedures they are wrong on that point because child way didn't go as far as they think it does and there's actually room in the statute to allow for a beyond a reasonable doubt standard that's merits right which means we have jurisdiction i write i don't think it goes to the merits i think you how can it be going to be jurisdictional if you're asking us to read the substantive opinion of the b i a differently or the ada a differently i think you look at the plain text of the act here the no risk determination in combination with the saw a number of youthful discretion language that doesn't provide a standard of review i mean you may be right that is only limited to a certain circumstance but the statutory text says nothing about a standard or review it could be clear and convincing it could be substantial evidence it could be preponderance it could be beyond a reasonable doubt it could be any of those and you could make any of those unreviewable no matter what the secretary decides  how do you grab beyond the reasonable doubt from that lack of language right well i guess the government's position is that the the no risk language combined with the the strong just extraordinary discretionary breath provided by statute mandates a higher burden of proof it you have any has anybody ever said that not to have you have a lot of authority supporting your proposition that there's no jurisdiction to review that issue right but do you have any authority for the proposition that the act itself mandates a beyond a reasonable doubt standard i don't and that and that is i think specifically because this language doesn't exist anywhere and the no risk the sole and unreviewable discretion you don't find it anywhere else in the i and a to to my knowledge and i take you through a couple of hypotheticals to her and so just bear with me so let me ask you the first one the on the same train just so you know where i'm headed and i want to see what the limits of your jurisdictional position is assume that there is a statute created by congress duly passed and enacted which says this grave risk determination by the secretary shall be made under a preponderance of the evidence standard and then there's also the language that says i don't care about the statute do you have review i believe so that would why that would go directly against the statute which so what this was so your argument is that chara doesn't have the force and effect case is their jurisdiction if you think child waive controls then i believe there would be jurisdiction ok i'm not totally ready to concede that put  as i consider that quickly here i believe there would be but tell me if i think it's important to note that charlie does not control here because it was looking at completely different statutory language it was and it in no way held a blanket rule that in all immigration proceedings the standard is preponderance of the evidence it said in most immigration proceedings and then also had qualifying language which said except where another standard is specified by law all right let me take you to the second hypothetical sort of along the same lines but a little bit different ok this time there is no statute in place mandating a standard of review but the secretary issues a decision which says i am denying your petition under the grave risk standard because today is a tuesday and on tuesday i don't grant these petitions reviewable or unreviewable are we saying there's no adam walsh act at all though there is an adam walsh act but the secretary says your petition came to me on a tuesday i don't grant petitions on a tuesday i'm not looking at the merits of your case i don't care what you presented i don't care what the evidence on the other side is i'm not weighing anything today's just the wrong day of the week for you is there jurisdiction to review doesn't matter it doesn't matter if it's sold unreviewable right as a matter of fact of the sec if you go along those lines and the secretary said i'm denying your petition because you're a woman or i'm think believe and i haven't researched this fully because the constitutional issues were not an issue on appeal i know these these are hypotheticals right right but i believe if there are serious constitutional concerns then that would give this court jurisdiction how how do you read the statutory language to allow for that safety valve but not others well i think when there are overarching constitutional concerns that gives the court jurisdiction from where  again it's not the doesn't heal right for the supply but i'm sorry because it doesn't feel right you can't imagine a world a rational world in which that sort of a decision is insulated from review right correct correct your honor so how do we if you are right about how to draw that line and how to splice it how do we explain that division statutorily well again i think you only when finished the sentence only when well i think it's so in an reveal will when all the procedures are complied with so they're right it is how it covers this case we have jurisdiction all but i our position is that does not control and the completely understood that your alternative argument you view brief didn't preserve that i understand that but if child were covers this case if it does and the preponderance standard applies to everything in the code that doesn't have a standard to review then they have a procedural argument that's covered by current body right right and if that's right i would be going around man to the district court to see whether or not they are in fact right they may be right they may be wrong but all we're saying is district court you've got to decide whether or not cha extends that far or not correct correct but i would strongly urge the court that charlie if in no way applies to this case again i you think we have jurisdiction to do that if you're asking us to take that step you're asking us to reach the merits of their claim well no i think this court has jurisdiction to review its own jurisdiction and that involves but that's not jurisdiction that's substantive that's whether or not they're right about the merits of their procedure claim that the secretary or hear us cia applied an incorrect standard or review or am i just mistaken about i could be completely mistaken about that you think you think that that the question of whether or not childwall plies in this scenario is itself a jurisdictional question yes yes i do how so because they're basing their entire argument on jurisdiction their jurisdiction argument on china waive as the basis for what the agency violated when it reviewed the his petition and by adopting that standard of claim that they didn't see violated the notice regulation our position is that the government's notice obligation was not even triggered here because it was mr byrd on himself who injected the issue of his travel to vietnam and thailand into the analysis in his fisa petition the country reports were not used as evidence against him they were used simply as support for why the government didn't feinberg don's evidence persuasive i will say that  may that may or may not be right but again i think that's that sounds a lot like a merits argument rather than a jurisdictional argument that we or the district court can't even consider whether the notice requirement was in place for this particular determination well i think a petitioner can't simply allege a violation and just open the door to jurisdiction i think there has to be some the petitioner has to establish some stated in the complaint that his travel he could no longer travel to vietnam because of his conviction and his status as a sex offender so he knew that by sending him that information which was not requested by the agency implicated the negative information that the agency was already considering with respect to his crime so that may be true and if he were challenging if he were challenging that decision merits basis i think it's pretty clear from the statute that would say well we have to side that but when he's saying instead first of all the government apply their own standard of proof as mandated by law and second of all the government is required to follow these particular notice proceedings those are different arguments th well those things don't really apply instead the argument as you can look at you courts federal courts can look at these sets of requirements but not the substantive decision why is why is that argument incorrect well your honor i the the argument is incorrect because the the regulations and the agency decision that the petitioner points to in this case simply do not apply and they were not triggered in this case  and i see my time is up you can finish answering judge grants question if you're done and that's perfectly fine too if i could just make one one final point sure it's about the tall v six determination grounds supported by the record even if the ground was not considered by the district court and below the other constitutional claims raised by the petitioner were dismissed on the basis of failure to state a claim and so we would urge that even if this court finds it has jurisdiction it also from the dismissal on that basis all right thank you very much thank you really appreciate so the government already only moved to dismiss under twelve the one for lack of subject matter jurisdiction the court only ruled under twelve b on so i if this court rules in our favor that the district or does have jurisdiction to side or limited regulatory claim here there there's no way to just dismiss the whole case because this record is so i have to decide the actual merits of of our claims of the violation of the government didn't assert twelve b six grounds on the two claims that you're appealing correct just twelve on those claims racks of this record never even considered whether or not we did say to claim for this was a lie no i didn't consider it but if the here and then i guess one last point i'd like to make is that you know congress did legislate would knowledge that these acted agencies have been using the preponderance of the evidence standard for immigration proceedings for just about every program under the