judicial review with a narrow exception as articulated by the supreme court in mendell and its progeny on the other hand where the congress where the court has not this court has not applied the doctrine of con power concerns and political question concerns are not at play and so in one verses department of state in one thousand nine hundred six this court reviewed an a p action in which the state department and the consulate had revoked a visa and the court the refusal to grant the peace in the first place which is your situation and it did say that one was applied to a revocation that's correct your honor and i do know that that doesn't exist i just don't there is no tangible difference between a con revocation if you're correct then it suggests that we have a conflict in our cases which this panel can't resolve and we would have to take it on bach obviously this is now been around for thirty one years and we didn't think in this case that there was a conflict between the two cases so yeah i actually don't think there's a conflict what i'm saying is i don't think there is a discernible difference between our nations so that's one point i also think that the main difference here in this case is this is a situation where congress did not delegate the authority of the concert and what what admissibility in the eye and say that have no discretion and this is one of them the basis for the denial and what language are we looking for to confer discretion so in this case you're looking for while you're looking you can look at this case there are two grounds of animists ability based on convictions ambiguously require application of the categorical approach that's not a discretionary delegation there is no discretion in the application of the categorical approach and so you know looking and we're to apply the categorical because and in the language that you looking for is that the language has reason to believe that the language sure except the reason to believe ground is reason to believe your controlled substances traffic or the ground apply to ms allen's case was that you were convicted of a controlled substance of that so there's no reason to believe language in the ground of an invisibility applied by the current there isn't twelve a one which is an overlay to all of this shirt that's correct but the but there's no ambiguity in congress thinking on cia empty well and that we're supposed to do this with respect to german law yeah and this court has done that before i mean the court in all of us much as said that the categorical approach applies to crimes involving moral turpitude so we know that that's the case and this court in previous cases has applied the category of oracle approach to foreign convictions it's done in in in in a consular denial of the visa no but in other cases if those are cases involving involving an enhanced sentence right sure those are those are those are set that's those are criminal proceedings under u s law and we're going to have a sentence and handsome and based on a conviction someplace else i understand why we would apply it there but why would we why would we just simply pluck up apply when the categorical approach is applied it's being applied by a whole bunch of lawyers and a bunch of judges when we would up apply the way that you're asking us to apply is that what it would require a consular officer who's perhaps not an attorney to understand the latest thinking on c i m t by the ninth circuit if that's where they might bring it as opposed to any other circuit right there's no reason why in fact a consular officer in germany doing this would have no clue who c i m t law they were supposed to apply with states and that that leads to their relatives then to cherry pick you know who's got the most favorable for example c i m t language going you know going this week well in this case there's no cherry picking mr allen you know is a united states citizen who was  california right but the consular officer might not know that he was there for responsible for applying ninth circuit law to add to that decision perhaps but the thing is congress passed the i a e a passed that convicted of language past the convicted of a crime involving moral turpitude language it can't possibly be that congress was like yeah these consular officers that have no idea what they're doing should be applying the law and if they get it wrong oh well no biggie we don't care if our delegation and our law is properly applied that can't possibly this court looked at concert decisions looked at the regulations governing those decisions and apply those regulations and they looked at whether it was a proper terminations or revocation and that's what i'm asking this court to do is to actually to say look at the law that congress passed the congress you have you have any any authority from any other jurisdiction that would that would apply this well i don't know i do think that this this court's jurisprudence around the dr concert on review first instance we would need to go into conflict with the bedroom oh yes but surveyed her in a bruno was wrongly decided for a number of reasons and one of the first things is the text the text of the administrative procedures act like this presumption hundred one it said that the that the a p a does not apply to the to the i a e a die in a proceedings now that was that was a that was a that was not a judicial review that was not the judicial review proceeding but the court was pretty these are even these reports in deportation proceedings were at least talking about people who are inside the united states but this is an a p a action and there's a presumption for a p review and there's a presumption that if if the i in a governs deportation proceedings and the i in a and that a p a does not apply to deportation proceedings those are people inside the united states who acquire due process rights by virtue of their presence here how could we then conclude that the a p a gives greater protection to people who are outside the united states those two people who are inside the united states was just the it's the wrong view of the mr allen is a united states citizen and he's here inside the united states a u s army member trying to bring his wife here and he is the person aggrieved by agency action he is the person who is bringing the claim he's saying i'm adversely affected because you've officers to render a decision and there are certain admissibility persist grounds that have inherent discretion and there are others that do not so your argument counselor them them limited to eleven eighty two a grounds alone well the eleven eighty two grounds and very specifically even the ones that imply questions of law only ok so but where where there's questions of discretionary application where congress gave the secretary of state disc grounds but we know for sure that convicted of language from this court's case in all of its motto but also just from the just a natural reading of it it's that convicted of language doesn't imply discretion you either were not convicted of a crime involving moral turpitude or a crime involving a controlled substance and it can't possibly be that congress didn't care that the application of law happened just because it was being done by conduct that's one of the language said any alien convicted of committing acts which office knows or has reason to believe constitute the essential elements of cia and it would be different if congress had written discretion into the act is it is that the discretionary language you're looking for if that's what it said there would certainly be an argument that that congress delegated discretion but that's just not what it says congress didn't delegate discretions and pure question of law and it can't be that the secretary of state can just willy nilly apply congress's law they don't have the authority to not apply the law if congress wanted them to give the wanted to give them the authority to not apply the law it would have said you can deny on any basis for get the eye and if you don't want to grant a visa just don't grant it but that's not what i did and when congress gave me plate people just lie mr allen the a p a action and didn't exempt the decisions of conference it left this window open for this very narrow exception to the doctor concert on review ability it doesn't apply to every admissibility ground it doesn't apply to every decision but it does apply where consular officer doesn't apply the law and where issue an immigrant visa or a nonimmigrant visa and then the language is subject to the limitations prescribed in this chapter or regulation regulations issues there under the limitation that applies in this case but but if this were if this were just straight up i mean we could we could make a judicial determination there's no i don't see anything in that in that language eleven eighty two a that you've cited that confers such discretion on the consular officers but it would that it might ordinarily prevent judicial review of that of that it's right create this not discretionary the consular officer is looking at the criminal convictions and applying the law that congress has written it's not necessary that there be a discretionary component to this to trigger the doctrine of consular not interview ability which as your honor has pointed out has already been decided by the circuit and by the supreme court so there  any window the only exception which was actually the issue in the district court is where the constitutional right assuming a constitutional right of the united states citizen spouse petitioning on behalf of the of the foreign applicant argues that there is not officially legitimate unmodified reason for the for the refusal but that's now been abandoned in this case and doesn't doesn't the doctrine of consular none of you ability rest in part on this notion that  what the folks in the consulates are doing is exercising discretion in areas in which they have special expertise trying to assess whether somebody is a security threat or risk or the other issues they look at and this particular issue here trying to figure out if somebody has committed a crime of moral turpitude or a drug offense doesn't seem to fall within their special purview and is something that we do all the time what we don't do is exercise discretion to figure out of somebody who's a security risk you can understand why you wouldn't want the federal courts sticking their nose in there but here why should we be concerned about creating a narrow exception having federal judges do what they do all the time which is make these categorical assessments and the answer to that question your honor is that congress has not created a right of judicial review and without that book not thirteen thirty one and not the a p a are going to create subject matter jurisdiction for the district courts or this court to look at what the  there's there is a peer review in a counselor proceeding has not been decided by one through could either way that first of all i think that's the outcome of that i agree that in a published case you won't see the words whether or not there's judicial review i think is an open question is that in our circle no no no no because the kind of question just like me asked is is the kind of question that would to me amenable to review under the it would be if congress had provided a statute that said there is judicial review over this but there's a long line of address the idea of whether the applicant is eligible for a piece of some of those decisions or discretion or some of them are not and the cases are leaking  so the issue in that case was whether the state department could terminate an immigrant visa registration consular nontrivial billet he didn't appear to be an issue in that case and it was about the level of notice that was required by the statute in contrast here what we have is an actual decision by a particular consular officer in an individual's case this is the heart of the doctrine of consular non reviewable it is the other circuit's own precedent so there is no way around leaking or says hong kong there is no way around interest to me those cases have already laid the groundwork that even if the consular officer were to have made a mistake and a mistake imply something that's not discretion an error of fact or of law there still would not be any jurisdiction to review the determination of that consular officer and that is because there has been no statute provided by congress no avenue of judicial review which case is the strongest one in which this court or any other has precluded review under the a p a of a pure question of law like the one presented here where the statute the underlying statute was being applied by the  in this circuit i would say on the specific point of whether or not it's an alleged error versus an alleged abuse of discretion by the  if i'm not mistaken the statute that the consular officer acted under was one that had the reason to believe language under it isn't that an important distinction doesn't that mean that if we were to go the way that the appellate wants us to go here we wouldn't necessarily be in conflict because that case involved an underlying statute that conferred discretion on the consular officer it's a distinction without a difference because the the end result is still there is no there's nothing giving this court subject matter jurisdiction that's the big picture holding of all the cases that are on the doctrine of well i mean you have to deal with the a p a because the a p a does does create a cause of a cause of action and seven o two so how do you how do you how is how is it that the a p a is not applicable that's what that's what's the major bruno answers it has an answer for that question but i think we can say well you don't you there's nothing giving the court jurisdiction that's just simply not us jurisdiction if we've got something like thirteen thirty one i mean that's true of review of all kinds of agency actions so i think so why are why are consular where consular decisions different from actions by let's say the e p a i want to disagree a little bit with your honor just said about thirty and thirty one and that's actually addressed also and so the same problem that exists with the a p a existed thirty and thirty one there and that is that there's nothing in the i a e a that gives this bruno again addresses this by saying that the presumption in immigration matters is going to be flipped and part of that has to do with separation of powers and this development of this of this doctrine of review of bilby and so the irony is is going to be different actions under the i in a are going to be treated differently from any other agency actions is that the government's position that that would that would rest on so they were bruno but i just wonder whether that's the government's position today right it's not just the government's but the but the idea is the same and i know all of these cases the overseas applicant is attempting to get review of whatever the consular officer did be a discretionary be it a mistake be it a mistake of law or fact what the what the applicant cites is has hasn't ever mattered in the case they can make it a declaratory judgment action they can make him and in this case they can make it thirteen thirty one case they can try to make it an a b a case but there is a unanimous body of cases across all circuits and include and based on what the supreme court has said about the delegation to congress from congress to the consular officer that's the problem that predates the nothing in the eye and they change that and a couple things about bruno the first is that this court already parts of bernard bruno itself was a revocation case it was a visa revocation we already know that this court has found that it could hear an a p a action but this court goes on revocations and bruno does so there's already a split in the circuits and not regard secondly this the government here concedes that these grounds are not discussion there is no debate that these grounds are not discretionary bruno was  discretionary ground so in bruno congress had delegated the authority to the secretary of state in that discretionary reason to believe contacts congress has not done that seemed why is why isn't why isn't twelve or one g an answer to that why isn't that say that no visa and it's a very general provision that consular officer shall not issue of these if he knows or has reason to believe that your discretionary language that they will not be admissible on any of the grounds described in for example eleven eighty two that would that is this is a blanket discretionary grant that would cover everything eleven eighty two including eleven eighty two eighty two it's just that with these pure questions of law that seems to be that seems to be contrary to congress well how could it be contra to congress intended that's what congress wrote yeah well your honor i put twelve twelve one g doesn't contradict anything in eleven eighty two no it does provide a blanket discretion going to dismiss the reason to believe language as not to conferring discretion then i don't understand the limits of your argument because i think that's the only language you can point to in the other sections of eleven eighty two other than a two that confer discretion on the attorney general or c it isn't a reason to believe type analysis the same way the like gang affiliation or terrorism are the kind of things you would have a reason to believe for so it in addition to that with this this idea that this court and all the other courts frequently do this question of law analysis that in the narrow situation where there is only a question of law and where a concert officer has as your honor has recognized doesn't necessarily have that expertise you leave a person like mr allen who's you know served this country and wants to bring his wife and children to be with him no i have a new where there is a misapplication of law i'm our congress is has not delegated the secretary of state to just apply whatever rules i want there's there's there's language in the cases i think it's probably in so they do bruno in a in a long footnote that suggests that in the past where these where these things were denied rather than getting judicial review of them they're always taken to the consulate to see if the german consulate could work it out with the american consulate have you taken any efforts to through the german consulate to try to resolve this no and you know there radically you could keep reapplying and keep making arguments and keep going back but if but why wouldn't she go to the german cons congress power by not faithfully applying the law and the a p a allows mr allen to say look this is a clear question of law the law hasn't been applied congress asked the consulate's to apply the law you need to do it now that it hasn't been