if you think of this is a lack of jurisdiction if there was no jurisdiction then dismissing the case made sense without needing to go into whether i need to what the replay the complaint whether i need to give an explanation for why i'm not granting them leave to seek to amend the complaint eighty two eighty two capital c barring any alien who the consular officer or the attorney general knows or has reason to believe is or has been an illicit drug trafficker that doesn't sound like requiring a conviction to me sounds much mushier than that and this consular officer might have taken the view that even though charges were dropped that could simply mean the u s attorney thought that finding guilt beyond a reasonable doubt was going to be difficult but it might not reflect a view as we even see in sentencing might not reflect a view that they didn't think it happened yesterday and i first want to group with your description of the statute it doesn't require a conviction but it does require something and that something has to be a little bit more than uncorroborated charges and i don't take my word for the board of immigration appeals and published decisions the agencies o rules and procedures call for it to say that the reason to believe standard has to be met by something that is competent and probative of the question no i mean i think he hears one area in which i really do agree with you although i'm not sure it's going to get anybody anywhere  there are some pretty well articulated standards from the board and from the process that would take place if somebody had received a notice to appear who was already in the united states and was being  in removal proceedings about that and it appears that for the aliens who are outside the united states such as mr lowell the there's very little if any that anybody really meant to create but i did i see it there insisting it is odd and i would further note that i'm this couple met here in the u s they were trying to do things the right way they filed a legal paperwork a number of different steps were taken and they went to the consulate ready in mexico right now did what he was supposed to do he left the country you might think trying to do it the right way and you know under the government's there and under this court because let me just step back for a moment and describe the procedure the first step if the next step would be seeking a waiver if he filed though if if ms morphine would have been found not to suffer extreme hardship reasons would have been given a written decision would have pretty been produced we could have appealed that to the administrative appeal you know after the probably been put into removal proceedings every step along the way there's some sort of review there's some sort of oversight except for this intermediate stuff where you go to the consulate and according to the government's theory one person at the consulate has the power of life or death over you and can split up this family forever and that's what apparently has happened under the government's theory and that makes even less sense when you consider that the scene type of charges for the same an individual from the same country married to a u s citizen if that happened trying to focus on is morph and the us citizens interests here and so as one of the marital partners not mr lowell and i think you have to do that because it's very hard to find a theory that says every inhabitant of the planet you know who is not in the united states has a due process right you know to try to come to the united states that's not what absolutely else has ever been and i don't think we could be the first court to say so but i would with ms mor constitutional rights that's the same for somebody who was arrested at a port of entry at o'hare airport they don't have any constitutional right of entry that doesn't mean therefore that they have no right to seek review over the legalities of the decision to exclude the are two separate considerations now the person isn't going to be able to argue that i have a constitutional right but they can say you're violating the law you're violating the regulations in previous keeping me out of the country but what's a violation of the regulations here good reason to believe you just think that the the indicted the indictment that slater just missed is too flimsy a ground to provide the basis for reason to believe that the indictment does represent a grand jury's finding that there's probable cause it's not nothing it is not nothing and we're not saying and i don't think your kids look at where the board's case law says that they can't give any consideration whatsoever the question is whether it standing alone could suffice to to meet this reason to believe standard  clear that it is standing on that individually enforceable by somebody like me is more friend usually the answer is no for those kinds of books and i don't think this court has ever actually addressed that question what we would say is that a minimum that the procedures that are set forth under the proposed foreign affairs manual which are not discretionary as to those off foreign affairs officers that if the government fails to follow its own procedures that is indicative at least it may be enough for us to a wedge that there wasn't a faithful execution of their duties which is if but that's an indirect way of saying it's individually and forcible really aren't you and i don't see the  a part of the statute that book said drug trafficking and you know it sure doesn't seem like a very demanding standard right other courts that have looked at the  asked whether the the government is properly construing in applying the walk in and in looking at that standard and that the government placed a lot of reliance on justice kennedy's opinion in india in which doesn't talk about that the reason it doesn't talk about that i don't think you should you should read din as is somehow modifying the mandal standard which of various other courts have have construed to permit these kinds of of legal claims and even judge bork in dissent a number asked says well you know of course you construing the statute doesn't it the statute has to be properly construed and so to the extent that we can make out a case for legal error at the consul below we believe that that fits even within the not very demanding standard in that sense it in some ways it sort of tracks the twelve fifty two a two d rules that apply to petitions for review and that they those of course came from the sort of minimum requirements they were gives congress the executive branch tremendous power at the border well they certainly do and you know that seems an appropriate as to individuals without sort of strong ties to the united states but that sort of for spouse would suffer extreme hardship and some of the logic in that opinion whatever it's worth in that context doesn't apply here judgmental finnicky said the petitioners interest ends with the approval of the petition to approve that's just the start of it after the petition happens you need to execute a binding affidavit of support and after that happens you appear at a consular interview abroad the u s citizen spouse under oath to testify after that at any point the citizen spouse can file a written withdraw to our client ms murphy and so we don't see her as a pure third party interest she she has a direct interest in this case and she is the one she and her children who are suffering extreme  p i would also wish to sort of step back and say that government doesn't really address fleming versus nestor ross versus court there are other supreme court precedent which actually applies the a p a both to non citizens outside the united states and of putative non citizens outside the united states rights rhesus court the government city that individual is a non citizen he said he wasn't the supreme court allowed e p a review even though he was abroad scope of the immigration laws while your are that courts including the supreme court for many decades have found that there is no judicial review in cases involving conflict and aisles of course and so under twelve fifty two for example as federal courts we have to decide whether we're operating within the zone in which no judicial review is possible in which case we reject judicial review and we have to decide if we're operating within the zone when judicial review is possible under the capitol d question of law area and we have the authority to sort that way we have the authority to look at a law and say is there any kind of claim you have under this law so why isn't that what you're really arguing you're just saying that when a consular official acting overseas takes an action the u s citizen spouse of that person cannot state any kind of claim under either the immigration statutes or the constitution for relief that sounds non jurisdictional to me your honor i believe that that is what we're saying we're saying that that's not jurisdiction just means you know we have to find good to see what's in front of us and then you either do have some kind of claim for relief or you don't and you don't wait until the end say well you don't therefore we never had the authority to say this to begin with i understand they give you a concrete example or a concrete question plan to files a lawsuit saying that the f d a should have should regulate drugs used to carry out executions and the f d a says no to the decision whether to regulate it is committed to agency discretion by law for purposes of the administrative procedure  that a request to dismiss substantively or to dismiss for lack of that the question that my colleague is asking which i'm also asking is why isn't this the same kind of thing the state department believes that the decision whether to issue a piece of it effectively is committed to agency discretion by even more clearly seems to have thought that means you just have to shut it down and you know you've made a decision it's a question of law whereas if it's a question dealing with stating a claim sometimes it's possible to amend a complaint to address whatever flaws there are maybe you maybe it isn't maybe if it's so clearly committed to agency discretion by law it's one of those situations futile and you don't need to give somebody an opportunity to file a futile amendment either but there are some differences in the way the district courts are going to treat something that they think is a twelve p one problem versus  twelve b six problem i can't say for certain and either case whether the dismissals were based solely on twelve b six or twelve the one it seems like in both cases they were they could have been based law from kerry beat in and under both cases and morphine it is clear that under kerry versus dan there was a facially legitimate and bona fide reason given so facially legitimate in the government's view means you can just put down some provisions from the u s code and since it's unreviewable anyway it doesn't make any difference so the hypothetical i would like to give you is suppose this consular official in mr you low is case or mor if you will had said i'm denying this visa application because he's been convicted of a controlled substance offense and suppose further as is true in this case that that's just wrong you know he was indicted but the indictment was dismissed and there was never any conviction so it's your refutable from the record that that was wrong in your review in your view is that something that falls within the judicial review either on behalf of morse in the u s citizen spouse or in any other way will focus on her for obvious reasons if it's just a flat out mistake you honor we're not sure in morfin or his why i'm asking a hypothetical my hypothetical is that the ground is conviction of a controlled substance offense and that's wrong it never happened the person has a completely clear record never been convicted of any crime in his life so let me give you my question is is the government sticking with non review ability of that decision yes your honor to look at the facts  decides to cite the conviction of a controlled substance offense but the real reason in the consular officials mind is he's decided to implement the no muslims rule and has figured out that just hypothetically the person in front of him not talking about mr you lower ms morphin out that the person is muslim and as long as you put anything down that the statute covers your decisions around reviewable anyways so you can keep as many muslims out as you want if there's evidence on the face of the decision that there that it was issued in bad faith then it would not pass muster under the facially legitimate and bonafide test but as the ninth circuit has said it's not enough information was incorrect to look at the facts of the decision would be to look behind the decision which is which is what the supreme court has explicitly stated is not permitted so no matter how glaring the  the we run a system that's so arbitrary that we don't permit any kind of second book will the supreme court and in did say that a state station to a valid statute relied on a bona fide factual basis for denying a piece or to barrage or that that's what he said and i thought that my colleague was trying to pose a case where the consular officer had relied on a transparently untrue factual don't believe that he said that a factual basis is necessary what he said it's a he actually did listen to what he said first didn't know i'm not going to read the whole thing first he's got a paragraph about the legal basis then he's got a paragraph about the factual bas know a lot of people disagree with have justice kennedy view this seven justices of the supreme court disagree with that justice kennedy view this perfectly reasonable but unfortunately they they then went off on different paths themselves which is why we're dealing with this ca all what judge kennedy said and if we agree which i think is subject to debate whether it happens to fit the criteria of marks as the governing approach  increasingly inclined is this argument goes on to think the din is useless and that we really just need to figure this out from more basic principles given to us by the supreme court and other sources bottom line were quite different between justice scalia and justice kennedy yes justice scalia saw no legal interest whatsoever either in the alien or the spouse but at the end of justice kennedy's decision he did say that contest critical facts and in so we do have a somewhat different situation here where mr yoo low and through his morphin has been saying you know i really you know there is no reason to believe that i was involved in illicit drug trafficking you've come to a completely impermissible decision and the government's position is we're not even going to probe that even in the slightest amount  as happened under the kennedy approach and in going to see if there's some shred of factual support for it that well be a balance here don't dispute the fact that mr love was in fact indicted association it was just a legally erroneous indictment mere associations not enough to support criminal liability but to go into the facts of this case is to look behind the decision and not only did the i said it was you know i'm not putting those words in your mouth but i said it might have been might have been might not have been there's a percentage of error in all governmental decisions and that's the including decisions of this court and that's the point of the facially legitimate and bonafide standard the point of the standard is not to allow courts to go behind and look to whether the decisions made were correct all courts are allowed to do when there is a constitutional interest at issue as there's a lead but you see here i we're troubled that the only ground the disc in the consular officer also has no discretion not to decide a decision has to be made yes or no and the decision so we don't think that discretion or twelve fifty two a to b which applies outside removers we don't think any of that is a political  that board's case law says that we're talking about a perpetual grounder from of animists ability that a close examination is required we think that that didn't happen here we think that the failure to do what the agenc own procedures called for it to do is it may not be a bad faith in the sense of intentionally sending an innocent separating an innocent family but it is been faith in that it's not faithfully execute expects accusing the consular officers duty under the law my clients are forced to attend these interviews without a lawyer the wires are not allowed in that once the government takes on that sort of rule it makes sense that whatever procedural protections the consulate itself sets up should be adhered to under a cardi principles and it makes particular sense here that we should want a little more crowd ration because the charges were dismissed i happened to have spoken with the prosecutor this isn't again something i'd like to they have i'm prepared to allege that they haven't and whatever investigative close investigation was required by board how would that happen without even asking the present why are the charges dropped he's still employed in the northern district of indiana no would add one further fact which is that you know that you know that the rate of recidivism for drug offenders and my client has had a clean record before and since it may not be a huge prover one the amount of evidence but it's something significant in that sense it's not dissimilar from the gar