here's the question that we have for you sure we're trying to figure out how you get past twelve fifty break it into two parts the word shell doesn't confer any discretion it's not may or may be perhaps it's it's not a question area all the courts in the context of i want thirty petitions have found out what's discretionary is the know best assessment so our constitutional claim is not that the no risk assessment is violating his constitutional right procedures that were not challenging the but then that the senate of review falls under that so if i can simplify it for you i think there's two decisions that you probably looked at but that i would second one is burbank which is a district court case but it disagrees with that in terms of it finds that it's not part of the discussion it's part of policies and procedures und if anything i think it makes it stronger there's a case we've been recounting it's from the fifty's which says basically it was two completely different context and the courts have sort of come away from that a little bit but i think the congress still holds true that if you're challenging the unlawfulness of a decision basically there's there's the court has more more of an argument for distinction on the actual virus if you're arguing that this is not a challenge for example saying they didn't consider the psychological report in a meaningful way or something along those lines mcnairy i think make clear that i don't i don't i don't get the connection there because what's the distinction between that are essentially claiming that there's something that the agency didn't consider and  complaining about the decision it self because very distinguished worst individuals are terminations versus broad collateral tax to policies and procedures and it was in the context of a class action so we're not saying specifically but and scase there's to be a curve we're just saying that every case of that animal shocked question is how do we get particularly if it appears as though your challenge is not more broad challenge where there could be argument that we could exercise jurisdiction perspective a more broad challenge on the ministry was because we're not challenging the specific facts of the case and whether they come out beyond a reasonable doubt they're not we're not saying he submitted a psych report and he submitted a affidavit bed and things like that and all the evidence is in his favor so find in his favor we're saying that every person that files one of these cases falls under the adam walsh act has to go through was the spark standard and i believe my  death don't matter isn't that your argument basically yes for a good bard standard the presumption of denial the fact that you have even if an officer views this case and says i believe this is provable they have to go to not only one supervisor they don't require that to be shown beyond a reasonable doubt but two years pacific question do i have a case where i believe this is a question where they've created a clear and convincing evidence no it's a good question i i haven't thought about that exactly so i i don't know the answer but again i don't think that any heightened standard is  the government's arguing that because his has a marriage certificate the right to marry is satisfied with that we're we're arguing that he has no benefit to his marriage if you can't status which is you know dependent on him and has to hide from the government or she has to find another means and then she can live with him and it and there's no protection immigration benefit that is not contingent on a marriage it's so it's not the kind of benefit that was discussed by the supreme court because the benefits that the supreme court talked that no bigger felt the interference here is really the right to cohabitate and that that right should now be elevated to a constitutional right because it's really the right to marriage the government says the are married so what's all that's focusing on defining marriage in the narrowest terms of i think if you look at the case of the right to marriage just based on the right to privacy and included twelve fifteen year from revealing that that's a that's a really good question i think that it comes down to the very same analysis as you still have to look at the statute and you have to look at the authority granted by the statute here already granted to the secretary it is completely recommend it would would your argument be that might be off for a virus because congress and the assumed an exception could exist if the no risk determination and i think you're getting at a point that that's that's correct that there would there could be some actions by the secretary that would be so far outside of what congress intended to allow them to do that would not be shown as a review but i think that that's i think that's something the government would accept i think that would be a pretty rare situation maybe if it was every single days isn't it impossible to prove beyond a reasonable doubt that there is no race this building so for the risk of bricks falling out onto the sidewalk and that was happening and there is are tens of millions of dollars spent to shore up all of the bricks even today though can i prove beyond a reasonable doubt that there is no brick there's no risk that any brick will fall off of this courthouse you can't i think you should go back to the complaint here in this complaint in this case there's the presumption and i think you would look at and see whether or not the secretary had discretion to to issue a presumption and here i think it's still covered with him general instruction to the secretary that they could say you that well it only answer that last question first is that's not an allegation in this case and in other cases it's it's been argued in presented to courts that we have approved individuals that are falling within the scope of this is  then analyze whether or not we have a reasonable interpretation of the statute and i think that we do here because if you're looking at an analysis that says i want to know whether by preponderance of the evidence somebody is no way i was no west or something spouse and especially asked the question is there forty nine percent chance that this person's not by to commit a crime might not be dangerous southern in your belief but i don't think that's what follows if you could probably answer the evidence that there's no risk then you're saying is enough to convince you in other cases where it really is it comes down to a decision that you know fifty one percent of me thinks that this is probably not the best but there are still up forty nine percent chance that this person poses a danger i think that still within the secretary somebody out to decide that that's the standard and that's a west and title minutes and that's that's not a missing that we have a fundamental right that cannot be abridged by the federal government so i think at the dentist session and looking specifically at how the then court addressed it versus how for example the court address proceedings when what if any consideration should we give to the fact that this statute only deprives convicted felons of this immigration benefit should that it influence our decision on this matter to a argument therefore it's not going to be a strict scrutiny analysis if we're going to if we're going to look at it that way i think that those cases certainly demonstrated but every claim is it's certainly not an acclaimed or they're selling a case not as the court the idea that this is a more fundamental right that say the right to determines and the circuit i think made a fuss over the word determination or something like that in distinguishing me nary the word determines go back to the dictionary and it could mean  end decision or it could mean for the manner in which it had to find out whether what the decision should be if we look at the a meaning of determines what doesn't that include the things that the process used