good morning your honor so please accord frank sproles appearing for the petition very obvious this case is about jurisdiction and nothing else counsel in this courtroom i have a hard time because it's really echoey up here ok so the key is not to talk louder because that makes the echo worse but if you could talk a little slower than you normally would it would help me a lot long as your understanding wasn't based on the intellectual content i'll be ok now but that was too fast but you just step aside as you got to slow down all right let me slow down thank even when there is highly precludes of language even where statutory language grants unfettered discretion there may be review if the regulations provide a meaningful standard in a international says the same thing and essentially that's what we have here in the this tension between our case law and you just we've given you notice of the cases that indicates that we typically do assert jurisdiction where that we're talking about the revocation as opposed to the denial of an i  one thirty right right so and so my question to just focus it is how do you resolve that case law with the very specific language in the adam walsh act that says sole and unreviewable discretion well again the the case involving the cancellation of removal they found jurisdiction despite the facial reclusive language well they found jurisdiction where the statute there was a statutory indication that jurisdiction had a an objective standard but in this instance congress didn't give us an objective rumination the agency came up with the eights memo the statute adopted by congress is quite when there's a regulation when the agency ignores the guidance provided by the publisher regulations there's a review because there is not jurisdiction i mean the case here is that the age memo says you must jurisdiction on this court because that's not jurisdiction they literally fail to follow their own regulations so is it hold on please is it your argument that the that the agency was arbitrary and capricious in failing to follow the aids memo guidelines precisely as spencer and he says when there is published guidance and they fail to follow it then jurisdiction exists now wait a minute those cases don't precisely say that those priest cases don't talk about an agency's own internal guidance do they they certainly do they're talking about a regulation or statute that gives reason to dissect  international says specifically referring to spencer spencer does not cast aside the agency's own published interpretation or say there will be discretion review if the regulations provide a meaningful standard by which this court may review its exercise of discretion when you ignore the what which should be in this case the dispositive fact when it's simply not even addressed in there and based on their own guidance then i th in time the spencer was first and basically said despite facially pretty close of language which is no jurisdiction when there's you know specifically detailed regulations or memos cases that this panel told us to address i mean so i don't think it's positive in the fact that it doesn't you know cases don't stand a chance to have a proposition that were not addressed right at no point does that my question was in that case did the lawyers raise the issue they d that's precisely the what congress was concerned about and i don't really think congress is concerned about incest they were worried about a stepfather and three minor children there's nothing like that here let me make sure i understand what you're saying we have no jurisdiction to review it well what i would say is that part did not address the other cases spencer and iris as when there is an agency regulation that can provide  her expert report that the showing that was made show that mr solaria had completed all of his treatment and it was pretty much lax one sentence it does not address whether he continued to present a danger to her specifically if earlier intellectually it's that if you talk really concerned it sounds like one big long time start if she were to file a new petition she would get a new priority date and it would she have to wait another twelve to fifteen years so that's not much of a  united states citizen and she's an adult so that's that you know this is what our president talks about chain migration there is about a twelve to fifteen year way if she was a minor child it would be an immediate relative but since she's an adult she's going to be filed she has i've been trying to get them to to use the old priority date on the new petition on not getting anywhere but we'll see obviously if we get something from this court that you know i refiled with the request for the old priority date because otherwise i answer is yes but the request i'm making is for them to provide the old priority date otherwise it doesn't really do us all right much good let me take you down one further step if we well with i guess the standard that we find in spencer which is i guess it's clear and convincing but more importantly just to you you wouldn't be ruling on the of risk or no risk well i think you might try it but i mean i think the remain would actually go to the agency not to the district court because i counsel a minute ago really if you could focus on judge to see my first question a minute ago i thought i asked you the same thing and i thought you said the standard would be thank you your honor i do have a style i'm an assistant u s attorney in the eastern district of california on behalf of the united states my argument on the jurisdiction question is going to begin and end with what your honor cited which is the gephardt case which as your honor stated is a revocation enterprises and her all predate the adam walsh act they're not adam walsh act cases and so they aren't discussing the same statute and the adam walsh act amended section eleven fifty four to add the revocation in this case said that this decision is appealable to the also addressed this you may or may not be aware that it was it was unpublished to be sure but i think i asked the same question then and it sure would help a whole lot of people and save a lot of confusion if the forms issued by the agency didn't suggest that that was an appeal decision it's also a bit confounding because the decides it doesn't have jurisdiction and then go it goes right on to reach the merits of which i'm sure you noticed that's right no it's in the record in this case and c i s also briefs the issue to the board and beginning and ending with the statute that's right and that's that's actually in spencer enterprises this is a quote from spencer buys if the statute specifies that the decision is wholly discretionary regulations or agency practice will not make that decision reviewable so that's the difference between that line of cases in a in herrera and this one and i think that's implicit in what parts stating there is a there's actually discussion in ge t which i think is a luster to it's not on specifically about the revocation but it talks about the may file language that's in the the first cla section eleven fifty four and it talks about whether it actually describes that is being somewhat awkward language because it isn't that the agency blocks the petitioner from filing the petition it it's actually at the moment when the agency's going to review the merits of whether it should grant the petition or not that that section eight subclause kicks in and in that you can it's it's consistent with our position here today which is that there's no jurisdiction to review the agency's decision at any moment about the adam walsh act whether it's to say no you can't file this position because you have this disqualifying conviction or you know we're going to deny the petition or no we have to revoke the position because you have this disqualifying petition it's at any point in the proceedings and it really doesn't matter whether it's revocation or of an earlier phase the case also raised an equal isn't there that there is a rational basis for distinction between these a petitioners with these convictions and visitors without these convictions and so for the reasons that the district court found we would also this court to find that there is no jurisdiction over the equal protection issue because it's not a colorable constitutional claim or the question thank you counsel thank you and i think only in terms of the quick action as applied right i mean i face will challenge an evil which action is highly difficult and certainly a rational basis would be against them deter petitioners but here as applied we really do have an argument for equal protection i mean think about what we're talking about here this is adam walsh does not talk about you are a danger to the community are you a danger to the beneficiary to this forty three year old woman and there are no minor children anywhere involved just think we different and get part there were three derivative minor children right so here we're talking about two classes you know beneficiaries who are blameless no minors anywhere they are being the mountain night a benefit nothing to do with their behavior and so as models of introducing any evidence about risk or any kind of professional assessment of risk by a man ten letters to all said he didn't do it which is not exactly the way to show rehabilitation so that was what i got to remain and i hope i'd be able to do a slightly better job in terms of statistics and so on so i mean i was a problem i mean we're still talking simply about jurisdiction but the record below was poorly drafted again there was nothing about they just said you know he had a probation mandated class but there was there was a lot more that one could have addressed to show that a forty two year old woman is not in danger of  company sixteen dash one six eight eight zero