thank you your honor if it may please the court andrew on behalf of mr roland and his chain and today i just like to thank you for the opportunity to appear oral argument regarding kind of a confusing issue implicating jurisdiction and congress in its most recent immigration major immigration overhaul and acted jurisdiction stripping statute  may and that's why we're here today but my clients and i take the position that one of the jurisdiction stripping provisions  status has within it a discretionary determination of prior to that congress has left to the discretion of the secretary of homeland security whether or not to to determine whether or e asked you the question about legally it seems that this one sentence in lee on the on the last page that says that to the extent that congress decided to permit judicial review of a constitutional legal issue bearing upon the denial of adjustment of status bearing upon not solely limited to adjustments to bearing upon it intended for the issue to be raised to the court of appeals during to the actual adjustment because it bears upon the adjustment of status you've got a way to move will to raise it and then you can raise it well isn't it seems to me that that's what leads saying it so could you tell us why  right well that there's a that's where the confusion plays in there's two jurisdictions stripping provisions the one that deals with discretionary decisions is under eight to be and that divest the court of jurisdiction like you said any discretionary decision twelve fifty to eighty two d says that only this court upon a petition from review from board of immigration appeals decision talking about removal there aren't you in removal and the reason why maybe needs some tweaking or and first of all congress remain silent about making this court the exclusive venue in which questions of law constitutional questions can be raised it's when you look at the statutes as notwithstanding any other provision of law regardless of whether the judgment decision is ceterus made in removal proceedings no court shall have jurisdiction to review any judgment granting relief under twelve fifty five just where you need to come out and then it goes on to say and in the same language a judge again it is quoted it limits any other legal or constitutional issues to be raised because we know discretionary issues are off the table to be raised upon a petition for reviewed file with an appropriate court that would seem to exclude just about everybody except the court of appeals upon a petition for well so the question is did congress intend to make this court exclusive venue or is it clarifying that this court retains jurisdiction to consider questions of law on a petition for review and it goes back to the looking at the legislative intent when congress did that it was what about the no court's jurisdiction to review it would seem to be pretty to take that position would mean that congress intended to preclude somebody like roland as united states citizen or a otherwise a petitioner in a in a business case u s based corporation from ever raising a question of a law or a constitutional issue before the district court because roland can't be put into removal proceedings unless you know give up his citizenship and come back as an immigrant i suppose but  and then it's a just discretionary decision as to whether or not to place it's a matter of prosecutorial discretion whether or not to place somebody like chand into removal proceedings and the immigration court doesn't have jurisdiction to review the i one thirty that roland filed on behalf of ms chen so she would just be in the immigration court with no relief and so this court would never get to to review something like an issue that comes up in a visa petition issues that come up in these a revocation and  from ever having this branch of government the judiciary review constitutional or question constitutional issues or questions of law yes into your of the statute to limit review you know just in a status matters left at the discretion of the secretary of homeland security or the attorney general while the ultimate decision as to whether or not mr rowland poses a risk to his chant is a discretionary decision however the homeland security makes legal decisions prior to winning the evidence and deciding whether or not he's a risk and typically in immigration proceedings evidence gets weighed and the petitioner needs to satisfy burden by preponderance of the evidence and usually the discretionary decision involves looking at most for instance and just going to status or discretionary waiver the status well it's it with the i one thirty petition in that so my position is we need to untangle the discretionary the ultimate discretionary decision from the legal conclusions that are best left to congress congress knows how to institute a higher burden congress knows the words even though some of my private bar colleagues would say congress has trouble passing immigration with nationality act but congress when congress wants to institute a higher evidentiary standard congress knows how to write it into the law and in this case the government has simply produced guidance that didn't go through for rule making that although there was a formal adjudication decision from the board of immigration appeals sort of the board said that it didn't have jurisdiction that then you would actually be proper before the federal courts to to look at the beyond a reasonable doubt issue and so it goes back to trying to untangle what's a fine what's another way to look at it is that authority from congress or rule making without going through proper notice and common formal adjudication and that's why we take the position because we're dealing with a legal issue there this honorable court in the district court have jurisdiction to to hear roland in chan's argument regarding whether or not  in the the interview or at some point during the the adjudication process something didn't sit with right sit sit right with you and you deny this is a matter of discretion that's not what roland in our challenging legislating through guidance and then also the other issues that don't implicate agencies discretion like retroactivity and  constitutional issue but and so really the problems with lead boiled down to that twelve fifty two eighty two d would leave somebody in the position of rolling without an opportunity to ever have whether it whether it's implicates a discretionary decision or not without an opportunity to to have this branch of government review his case and then regarding the discretionary decision we're really asking for guidance from the courts to say where the line is it where it is where does the the discretion start in the process and it's difficult and somewhat confusing to to unravel but and then from there and would like to have their issues actually reviewed but before we get there we need to deal with with  and determine whether or not it's like if not to sound like colombo but when i explain this to my wife i say congress gave them the keys to the car to homeland security and said go to the storm by buy a loaf of bread in congress got in the car and drove five hundred miles and bought a few other things and came back and it was so morning your honour's may please the court get on behalf of that poli is this case is about discretion and whether the court has jurisdiction to review a decision made by u s citizenship and immigration services and  decisions or actions committed to agency discretion by statute within certain chapters of the i a e a which is that people here know the adam walsh act cannot be more clear in this regard the statute clearly gives the secretary of homeland security discretion and such a high level of discretion that is not found elsewhere in the i a e a in really very few other places within the law taking those two statutes together in the district court rightly found that it lacked jurisdiction to review appellants adam walsh act claim now this broad discretion doesn't just cover the final decision of whether mr rowland posed a risk to ms chan by evaluating the specific circumstances of this case but it also covers those policies and practices that u s c i asked adopts to come to that ultimate determination including the adoption of the beyond any reasonable doubt standard  and fourteen decision analyzing the adam walsh act said the standard of proof is part and parcel with the ultimate exercise of discretion and as its circuits and bremmer which is the only published circuit court decision on the click on this use legal and constitutional claims to bootstrap their way into district court and that the legal issues cannot be divorced from the actual discretion that was used to just twelve fifty to eighty two d for a minute the court need not reach the question of whether twelve fifty two a two d independently bars jurisdiction because twelve fifty two a to be addressed discretionary review bar already does now twelve fifty two eight two d states of the judicial review bars do not apply to constitutional and legal claims filed in a petition for review before the court of appeals and poems want to stretch this language to mean that where an alien does not have the possibility of filing a petition for review or  currently in removal proceedings then that opens the door to review and the district court of legal and constitutional claims but this defies the plain language of twelve fifty two eighty it does not create jurisdiction in the district court rather a to d is an exception to the discretionary review bar allowing for review if and only if filed on a petition for review with a court of appeals now defendant's recognise that is highly unlikely that ms channel be put into removal proceedings she entered under the visa waiver program and under that program it's sort of an easy way to come into the country without a visa but it's also a pretty swift exit out of the country there's no judicial review of a remov order for someone who's entered under the visa waiver program now a palin's want you to believe that because of this confluence of the adam walsh act and her and tranter the visa waiver program there's nowhere for her to bring her claims and that is exactly what congress intended the language of the visa waiver program and the language of the adam walsh act could not be more clear in this regard that there is to be no judicial review and there is no case law supporting the idea of the twelve fifty two eight to decrease jurisdiction again the leak case from this circuit said that the expressed language of the statute requires lida raised any constitutional or legal questions in the court of appeals and it's just you're saying you can't extract them from the discretionary review process they can only be considered at the final straw yes the legal claims brought here cannot be disentangled or extracted from the ultimate discretion used here and so that would be for the court of appeals to determine whether this is truly just a discretionary determination or whether there are legal challenges but because we aren't even close to being in the right track in terms of judicial review it is a bit premature to be you know opining on whether there is a properly raised legal or constitutional challenge here as the eighth circuit recently stated in the bremmer case they said assuming for the sake of argument that we even have jurisdiction to to evaluate these constitutional claims they want to say there weren't even color we it is and that's exactly what the eighth circuit said and obviously our police would prefer that the case just be dismissed for lack of jurisdiction without an evaluation for the sake of argument at all that's that's correct and i would say that what they did in bremmer was a wrinkle that is sort of idiosyncratic to the eighth circuit and we would not encourage the court to adopt the same approach here i would respectfully refer the the court in response to the government's position to some of the case law from other sr circuits regarding the jurisdictional issue including the third circuit in the piano case sucre in the first circuit in the ninth circuit and then even within our circuit last summer the district court in the eastern district of it was it last summer last winter in the eastern district of virginia  district court found that this court had jurisdiction over questions of law regarding the adam walsh act claim so long as this you didn't fall within the purview of the discretionary jurisdiction bar and so that court was able to take a look at levy and determine that it still had jurisdiction and i don't right now there is a split between the eastern district of virginia and judge cup or in the case in our matter in western district of north carolina and really at the end of the day it goes to incidentally and i'd be glad to brief the court further on this but it wouldn't have any she could raise but the immigration court doesn't have jurisdiction to review denial of an eye when thirty was petitioning better spouse to the case under violence against women act so i think the court for its time for their questions thank you very much