so beginning with the time the mendell test we would concede that the government did select a legitimate reason the problem becomes in the second prong there's absolutely no facially connected statutory grounds this is a woman who was a homemaker who has never belonged to any sort of group political group she's raised her kids she's never held a job how do we review that i'm sorry how do you really how do we possibly review well undermanned they said there was a two part test and so they said first they had to list a specific statute and section there has to be some sort of that the council officer had to find some sort of factual or facially connected reason to in fact cite that statute there is nothing in the record whatsoever and given that in our pleadings we specifically discussed that this was a homemaker we discussed this is a woman who has never held a job she didn't belong to any sort of group she has had no activity and any sort of terrorist organisation and in addition to that these are all denials these are all denials of fact how do we review that well i think that the district if if that if we thought that for example that the that the that the consular officer had written relied on on on classified information we would have to conduct the in camera proceedings in the district court to review whether we whether we agreed with the  mean i would say there needs to be something just an ounce of something whether that be an in camera view or but the government needs to give in clean of something even if it is this officer i mean like for example if you look in the d officer and bust a mentee there there there was actually an officer who said we have reason to believe that in fact he is you know a member of the gang or he is you know a drug dealer and c here you have nothing you don't have a shred and in addition to your best case more the idea that we have the power to do this is what well i would say under the series lake i think this was really obviously it started with the mandela test and i don't know that didn't clear anything up but i think that this court under cardenas gave us specifically that two prong test ok and is there any is there any case that muster and i honestly think this is the case in addition to the mandela the second prong in the mandela case with this i mean we do have we do have a case in our in our history a couple of years ago in which we did send something back undermanned ok so i missed that i apologize but i don't was that more in bad faith i would have to i'd have to look at it i have to have to point out it was several years ago in addition to not having anything in the second prong there's a tremendous amount of bad faith where there is the fact that these all of this woman came in and out of this country as a homemaker with her husband for over twenty years without incident she never violated her visa she was here at some point in the early years with her husband on a student visa never arrested never incident never nothing and it wasn't until her husband refused to actively spy on the iranian embassy that on the so in the complaint we talk about the continued harassment we talk about the fact that her husband they tried to do the same thing with in denying her husband's visa but he was in the united states general references to dubious reasons it seemed like perhaps it was a disconnect between the level of factual description of bad faith in your brief and in your amended complaint that the district court considered so so i guess we'd all like to be a monday night quarterback right i will acknowledge that the pleadings could have been look you're talking to a district judge and my worst nightmare is i make a decision and a goods up to the court of appeals and they review something that wasn't before me isn't a pretty fair to say what is before us is what was in the complaint and i would i went thirty for a u s born children which is never done there was unfair treatment of her husband's case which was done at seventeen and which specifically because your constitutional protections was proven that they were  allegations we talked about at seventeen we also talked about the fact that she was stripped of her visa after coming in so if you construe those facts and the most favorable light i believe that that at a minimum gets us a hearing as to whether there was bad faith we also discussed the fact that once we filed the writ there was no fingerprints there was no request for documents the interview was minimal there was no questioning there was no nothing and that's at twenty one i think the other one of the one of the issues with not having some sort of facial connection in the second part of the mandela class is the biggest fallacy in these consular non reviewable cases is that the council officer or the higher ups or the council chief or the state department is actually making these decisions and they're not and ninety percent of my practice is counsel review i have an office in africa i'm intimately familiar with these cases and what happens is these cases that go into admin processing go into the abyss of washington and they're looked at by the f b i the cia and these investigated by these and the answer comes back you want to don this case under this specific statu motion was going to be decided on the papers as well i we are extremely apologetic for any disrespect to the just a court but we don't believe it for goad i think all issues were reserved one thing about his decision is that it specifically said that his decision was made on the papers that were submitted we submitted in the extensive reply brief and i don't believe that anything that i would have said it oral argument would have been any different than what was in our reply brief because we had spelled out all of the issues in this case if we were to go with your your view what would we review the actual consular determination right i would ask that two things are reviewed even something like say indian versus kerry like maybe she had i mean we obviously played she didn't but something from a higher like f b i cia some sort of officer that said this woman belonged to this group this woman worked at this agency this woman has lunch with this person this woman donated money to that person just an ounce of something you have nothing here and if this case  test i would agree but then you need to turn on whether there was bad in this particular case you need to turn on whether there was bad faith and how do we get it i i would suggest that there is some sort of hearing and which you can present witnesses and evidence to demonstrate the bad faith what witnesses would you present so i would present her daughter her husband her husband none of these issues get to resolve as a matter of fact whether they did or whether they didn't do those things or are we really only looking at the bad faith of the consular officer he's looking at the bad faith of a consular officer how can you use the consular officer of bad faith if these folks have never met him or just bad faith on the part of maybe the f b i who talked to the consular officer well the counsel officer as we said in the complaint i never asked any questions never did they never had any follow up they never asked for any evidence there was literally a submission one of these got a cable in the background says the f b i strenuously objects to the admission of this of this of this person now the consular officer taking this cable would not be operating in bad faith if he said i'm going to deny the visa right i will tell you strenuously object i would believe that that if if congress gave the authority to the council officer they didn't give it to the f b i so i would believe that that decision would be done in bad faith if without making their own independent investigation the consular officers responsible for investigating the f b i concerns i don't think that they're responsible for it and we've just turned the know it isn't it i mean the authority has been given to the council officer it didn't say f b i you can go in overseas and you can make any decision you want and it's not reviewable the authority was given to that counselor officer presumably because they're living in the territory they have access to information that's going on so if a council officer is going to take a blanket statement that says the f b i objects without any sort of reasoning behind that and not making their own in this area that's  it now if you want to take that position that the rule of concert on review ability has no basis in law or that it's unconstitutional or something you could do that but that's a very different rule from what from the framework i thought you were working well but the second prong that was laid out in cardenas says there needs to be a facial connection to the site to the section that cited and there is nothing in here so you think that our court in cardenas was was simply take what the supreme court did and explain it and give us an a task in which we could use and so cardenas is is clearly labeled saying ok mandela says part one in light of the denver says kerry here's here's part two and if the government gets past both of those which i don't think they do in this case the only other limited review we get is bad faith thank you council you're just about out of time and i would like you to have some time for rebuttal so i'll give really were no good grounds for denying this was really irritation by somebody that that they wouldn't cooperate and there's really no there's really no good reason why they can't come into the united states they're not they're not engaging in terrorism they're they just they just didn't want to threaten their business by cooperating as a confidential informant spying on the iranians that's a pretty frustrating position is there no remedy for them there is no remedy if if they were not following the steps laid out and in ok and also the f b i the f b i says we're irritated they sent a cable over to the consular officer it doesn't say we're irritated it says we the f strenuously objects and that and that again motivation we're irritated with these folks is not reflected in that cable there's really no bad faith on the part of the consular officer right correct and there's no but there's also no remedy officer must find to exist before the time the fisa plaintiff would have the second step include a facial connection to a fact in the record but if you look at the language of cardenas there's an oar in that second step so it's either agency but there's no remedy for that so we're telling it is the consular officer is relying on the information given to him or her by other agencies for example and bustamante is the relying on the d e a report saying that there had been drug trafficking allegations in there are a lying on you know a police report that says mr cardenas was in the car with someone who's believed to be a gang affiliate right in each of those it's coming from a separate agency that what we have in the record from those cases provides no further factual basis so in this case similar to both of those yes the consular officer would rely upon the f b i statement that it has reason to believe or it believe or knows that this person has engaged in terrorist conduct or activity but before we even get to that bad faith the court would have to find that there was no  reason which in this case it squarely falls within didn't although and in the complaint allege that plane just husband had worked for the taliban nothing in the consular officers decision you know found that any activity with the taliban was the reason for that and i o that was just what the justice kennedy himself found related inadmissibility and that's how we get through the second prong of as laid out in cardenas which builds often that a bona fide decision is one that cites a statute with specific factual  husband has been admitted to the united states is that correct yes you're ok and he presumably is the one who refused to cooperate with the f b i on this presumably that was not alleged in the complaint it was followed up in the motion is the government stopped for hear from because they've been they've admitted the husband who presumably was the principal here and now refusing the wife no your honor i mean the husband didn't petition for mr no i'm not going to sit in the petition so much as i'm just wondering whether since we've admitted one half of the married couple and we've admitted the half that presumably had the principal contact with the f b i i think if you look at the documents attached with the original complaint the  honor ok is there anything in the record that explains the difference between her status and his status and i have no record i have what the documents that the plaintiff has submitted with her complete their original complaint that there is there isn't anything there that would suggest that there's any difference between the way that the two of them conducted themselves with respect to the f b i so there's no there's no there's nothing in the record that would explain why he was treated one way why she was treated another no you are not not that i have seen  these are allegations that come from the plaintiff so just based upon the practice because the government doesn't have any other information that it is that's come forward with or has been required to come forward with at this point not at this point your honor at this point we rely upon the c you he is not a not a plaintiff in this case and we only have the documents submitted by plaintiff with the original complaint and the question of bad faith why isn't a fair reading of the plaintiff's amended complaint here even if there aren't affirmative specific allegations of bad faith behind the scenes which a plaintiff in this position could never get why isn't a fair reading that this set of allegations no person could have denied this application in good faith know if somebody in this plane is position is never going to be able to go behind the scenes in a complaint and have access to what the consular officer was actually thinking or behind the scenes communications but here hasn't the plaintiff done everything that he or she could in alleging that this person was came in and out and you can imagine the next point if this person was given the citizen of the year award by the local f b i so isn't are these sorts of allegations enough for bad faith not in this case i mean if you look at the amended complaint the language says subject to unfair harassment delays continued unreasonable harassment of plaintiffs there's nothing that there's nothing that falls within that a ball and a line of cases that provides a sufficient factual matter that if the court was to accept it as true that would stay to claim to show that there had been bad faith on its face there needs to be more i can't tell the court where that more is but there needs to be more to show bad faith on the part of that consular officer be it something that the officer himself or herself says at the interview or on the basis of the denial the denial letter and in this case we just don't have that plaintive does try to cure the complaint in the response to our motion to dismiss by providing further allegations but even if we accept those is true there is still not enough because it's into the constitutionally protected interest alleged here or the court can follow dinan which of the constitutional interest is assumed and we jump right to counsel or not guilty we argue that there is no constitutional protected interest between an adult daughter and her mother the cases that plaintiff has cited come out of nine hundred eighty three cases in this circuit in which the state has severed completely the parent child relationship whereas  here that relationship has not been severed it's not void it's not while they cannot live together in the united states the right to companionship has not been completely denied and so plaintiff and her mother can live together in any other area of the so i think there is a big distinction between her and her husband her husband had the benefit of being in the united states and when he refused to actively spy his i forty five was denied and then when he was placed to remove all proceedings there allegations of terrorism but the fact that he was here and we were able to go into district court and we were able to do discovery and he had a due process right made it so he could actually adequately refute those allegations and he did because he got his green card and there's no way if he had any participation in terrorist activity he would have been given that green card when they didn't succeed and that they went after his wife who unfortunately was overseas so when you say there's no difference between husband and wife i  disagree the difference is one is getting review and the other is not and it's the same allegation that the allegations of the husband would have been stronger because at least he worked in lebanon he had interaction with other people this is a woman who was one person and not the other thing i quickly wanted to touch on is that this court has a lengthy history of finding at lea protected interest from both parent to child and child to parent it was in strandberg lee johnson and smith found that it logically went the other way so i we're not saying there's this absolute rights for these f mother and child to live together what we're saying is there is a there's a liberty interest in which she is allowed to have some sort of due process which was not done in this case thank you very much thanks for the argument