effective mechanism for them to pursue their rights under the treaty of amity and economic relations between thailand on the united states i want to take just a very short time to sort of go over  the fact that the thai restaurant has been in operation for some twelve years both of the individual petitioners have worked for it successfully for a number of extending his status a couple of times the rd time the restaurant sought to extend his status they were denied they went to court to challenge that denial and the  that didn't come to a decision by the court but the agency the u s c i s reopened its decision and granted his extension one more time until the rd quarter of two thousand and eighteen having correct why why kalf i'm just not familiar with the work allocation issues there was venue venue was appropriate in the district court central district of california and that's where  and it was assigned to the california service center so after he was granted the extension when the service reopened on its own motion he reasonably wanted to travel take a trip back to thailand visit his family had been a number of years and he had every intention of returning to the same work same work conditions that he had been  serving the restaurant for a number of years and when he went to apply for his new visa he had no reason to believe that he would be denied there but of course he was and the restaurant scrambling for other chefs to take over necessary functions in the restaurant they also had their former employee apply and she too was denied the reasons that the consulate gave for denying these visas was that they did not meet the test for a century ality in the state department's regulations and they were you know told to leave the consulate and that was the end of it so having litigated the question of mr farm since eligibility for any visa the you know the restaurant was unsuccessful in getting the consulate to reconsider there is no formal mechanism for reconsideration and so they brought  suit in the district court in the district of columbia butt i ask you mr can i ask you this republic is it in the record whether either one of these plaintiffs was eligible for a different status green card or some of the others status some other steps that would allow them to stay it's not in the record but there would be no other status for them to work for  so so when we look at the treaty between thailand and the united states we have to look at its purpose its intent the t framing matter so you don't dispute the existence of the doctrine of console non non or you ability it is a doctrine that exists and has been applied to deny judicial review of matters that are at least in this space that it seems to me the question is if that doctrine exists and it has existed for a while there is a supreme court decision back in one thousand nine hundred and fifty or somewhere there abouts that at least manifests that principle then would we not read the treaty against the backdrop of that doctrine and if we do what is it specifically in this treaty that would give us a sense that that doctrine shouldn't apply particular to this treaty in a way that it would sweep in all treaties that have this kind of free access permission yes well we do not dispute that the doctrine exists and that is been applied in this area what is different about this treaty and this case is that the treaty was enacted and ratified by the senate specifically for the purpose of protecting american citizens and their interests abroad and providing reciprocal rights to tie citizens who are seeking to establish businesses in the united states as well as their employees their responsible employees so the other cases that have recognized the doctrine of consular in on a review ability have not addressed treaty where the person was seeking a visa in the category that the treaty protections covered so you would have cases for example in this court's veteran brunow decision where you're seeking where the person was seeking a visa for a family member other nationals of either party shall be permitted to enter or at territories of the other party and that that includes employees that's so shall be permitted that's that's the language that's the treaty language your honor but we don't stop there in addition congress has specifically recognized a right to enter the united states and it's definition section for the visa where they say they describe the person who is entitled to enter the united states under the treaty so entitlement is by definition a right to partake in a particular benefit and so but you know it you know isn't it part of your claim that you're taking issue with the you to the requirement that the person be an essential employees in your reverting to the response of all employee terminology in the treaties so i mean if it does seem like i'm not sure that i follow that logic of that claim because to visit is restricted to somebody who's an essential employee well not by the terms of the treaty itself know with by the terms of the very visa you're seeking for finance but there is no outside of the state department's interpretation of the treaty which says that it should apply to persons holding responsible positions with the employer essentially ality is a construction of the state department we have two different claims there are separate but they are related the nd one is an ultra virus claim that would impact future applications for each to visas under this treaty  so we're challenging the policy interpretation of the state department as well as the application of that policy to these visas that were denied and i was going interpretive question about  the free access provision so article two section two has its beaks in terms of the nationals and companies of either party having free access to courts and all degrees of jurisdiction both in defense and in the pursuit of their rights and i'm just wondering is the rights of the rights then re talking about their rights under this treaty or is it just a more generic provision that just because of rights generally well the way that i read the treaty your honor is it starts with article into those rights now there are those that are rights only talking about the rights that are set out in the treaty it's not just a generic statement about rights that has her at all correct although there may be situations in which  companies are litigating other types of rights for example in article three of the treaty it talks about protections for contractual rights employment things of that nature so that in fact isn't it most naturally read it's in article three section one that the treating recognizes a right to fair and equitable treatment regarding property strikes me that a natural reading of the training talking about raw property and contract rights an article three and then article one it doesn't use the term right to right to enter the territory it just says nationals of either party shall be permitted to enter and given the backdrop of consular non review ability and given the backdrop of national sovereignty why should we rebuild as the undertaking between nation states nation states to say i i undertake to let your people and you undertake to let my people and pursuant to these a category as an executive is a process saying that i otherwise available c e d need to be as the reason your honor starts with the st word of the treaty which is nationals of either party so it recognizes the importance that this is creating a type of focus on the individual and not on the nation the article to right to access to courts also starts with the word nationals and companies of either party so they the the treaty itself focuses on individual rights and then in article three it shifts to obligations of the states to provide particular treatment of which we would say you know the end that doesn't take away the access to courts in article two and it doesn't take away what we consider to be the right to enter the united states you know the treaty language supplemented by the immigration and nationality act but the consular official so so determined that they didn't meet all the requirements of any two essential employees so one of the problems that all visa applicants have in who are denied a visa is that they are not given a reasoned explanation of the reasons why they're there denied and we would hope that this court would hold d that  because the doctrine of consular non review ability does not reach to this particular case that we would have a sort of regular review process by which the  the consulate would have to explain itself now this is not the same area as these other cases that are cited throughout the briefs and the district court's decision where the they were going to restrict people in this category and but in your view that would not be an adequate reason no because it would really make no sense i mean chefs are essential to it or restaurants operation and i think that one thing that happens is that occasionally consular officers will say just about anything so that the person will leave after a decision has been made and so i don't take this as a statement of state department policy or a change that no thai chefs anywhere will qualify for any two visa we really don't know why these particular applicants were denied after so many times of already being issued visas and being able to extend their status in the united states and we would hope that the same here initiate it with them outside of the u s and in your ultra virus claim your assumption is that a responsible employee is a broader category than an essential plane yeah i think that essential is  vague term i think it's a general more general it's harder to understand who is of essential it's more restrictive for sure i don't know i mean one way of reading responsible employee is somebody who's actually in charge of the enterprise a manager you know someone who's really running the show you know it's and play employed by an investor in a responsible capacity responsible for th investments perhaps but me your house you know how many authorities that really go to how we should understand that i'm unaware in the absence of definitions or chord interpretations we just don't know what these terms  should mean but i do think that sensuality is a more exacting standard than responsible responsible could be a manager but a chef can certainly be managing the kitchen and  bars review of both a point of claims and as the questioning this morning goes to i think judge chief judge of us and you narrowed it to they agree the doctrine of cause for our ability would normally apply but they read the treaty as abrogating that and we do not we believe the treaty is one in a long line of treaties this is a shortened version of this long line of trees of friendship commerce and navigation that allow among other things access to courts and these access provisions as described in our brief and  explained by judge friendly for the th circuit and block overseas united states pertain to procedural rights rights like the availability of a lawyer not having to pay filing fees etc and so reading the treaty against the  sense that it's necessary to decide it even if it's not refused in the narrow our sense that's a difficult question i think after trump versus hawaii in which the supreme court pointed to a concession by the solicitor general of page thirteen of the oral argument transcript that it was not jurisdictional in the subject matter jurisdiction sense the court there the supreme court there just went on to the ins a and constitutional questions dealing my wife i are on her i just wanted to make sure but a couple of points that i think the th circuit describing surveyed her point out that surveyed her was issued you know around the time of steel cohen at a time in which jurisdiction was may be used more broadly and this court has said and was repeated and still cohen been repeated by the supreme court a number of times that jurisdictions are word of many too many meanings the analysis in surveyed is still appropriately applying mandela properly applying for yellow appropriately applying all of these doctrines appropriate looking at the i n a provisions giving consular officers authority to make denials that's not reviewable even by the secretary of state and so we think  sense and again i would think hoey you know the supreme court relied on a concession there but i think you're likely balance by the supreme court's reasoning relying on that concession even  in light of that here i would also note and i know we covered this in our brief so i don't mean to or the court but the district court did treat it as a twelve dollars to one dollar ruling but as we cite claim and versus department of energy which is the one thousand a true opinion of this court where the court said you can affirm a twelve to one ruling on the basis of twelve b six if the legal reasoning is correct and so again we think the legal rule and the reasoning of adra and as applied here in the district court are correct that your court just framed it as twelve the one when it should've been threshold issue in the vein of form one convenience or personal jurisdiction or other things it's a merits question but even though it's a merits question we still have authority putting aside our precedent what judge post was talking about but we still have authority t it is because it's sort of stepping back because it stems from the separation of powers and from as explained by the courts of age or bruno and sort of relying on fellow and her parastatals i believe is the pronunciation of mandela that it's an issue of separation of powers question because there's no right of a foreign national to enter this country and to sue and because the plenary authority of the political branches exercising that sovereignty is what's being exercised that it is something that should be decided sort of as a threshold rule of decision but the supreme court clearly you know salted it could go past it in hawaii now it's getting it i mean about threshold is just in the nomenclature that like there's like opinions that say that there's a catch of threshold determinations that steel company still allows for deciding deciding at the been a beginning like for non convenience but for non convenience is still something that you would decide before you get to the merits and as i understand trump the trump why the way it treated consarn are not review ability is not as one of those threshold things like subject matter jurisdiction that you do that you have to do at the outside before you get to the merits but as a merits question it may be one of the st merits questions you reach but it seems like it's in a cache of merits questions rather than thresholds as they think that's probably the right interpretation because the court did say in  versus hawaii because it now they used jurisdictional i think in the subject matter jurisdiction sense if you look at the solicitor general's statements around page twelve and thirteen of the oral argument transcripts so i think as i read it he was conceding that it's not subject matter  supreme court did say it could proceed to the merits if i don't think you need to address that here because the district court did rule in concert our view ability and we believe its ruling was correct but if that's something the court like further briefing on we could certainly provide additional briefing on that issue my question is the the reactance provision in the treaty you said that this is kind of one shortened version of standard everyday fare in this landscape is that true of all the relevant provisions not just the free access provision but also article one is that it kind of is that standard fare to your car i want to apologize i may have introduced some confusion in my language the treaty of amity and this is also discussed in the friendship commerce and navigation and they cite three we had we had one that's no longer in force with the ron we have one with ethiopia and we have this one thailand debt to say that the overall treaty is a shortened version of these friendship the actual access provision here is as we point in our brief to a number of other access provisions nearly identical and i think my recollection is that article one on the entry is nearly identical to a lot of these treaties so i didn't mean to say either of those provisions are shortened versions i meant to say that the treaty as a whole is a shortened version of the pre x provision and article one those this is those are not unique to this treaty no absolutely not your honor the free access provisions language is belabor the point but but the question being not just the re access being a standard kind of wording but the beginning of this pressure or amytal that talks about how the longer friendship yes absolutely your honor that that is a common provision i think it goes towards sort of the concept of the two nations are friends and so they are allowing the nationals of the other country to enter or you know subject to other provisions we do three years before it went into force the nd restatement i believe it's section one hundred and fifteen dollars comment he specifically says that these treaties of friendship commerce and navigation often speak in terms of rights but they're not actually creating individual rights it's meant to be engaged at the limitation that the government is putting on the free access provision to the extent that blanco stands for that the facts of blanco are much different than here rather than judging this case by the backdrop of consular and on review ability i think i would ask the court to look to the actual language of the treaty the free access provision does not include any such limitation itself  and to the extent that an exception to consular non review ability is recognized that was certainly something that the court in severe drought bruno as well as and off the shaughnessy anticipated that there could be another source of law that would allow for court review of consular decisions in particular cases this is one of those cases we would argue and i'm just i'm just a pen it down when you sa authorization to which you point is article one section one of the treaty together with article three section one equitable equitable treatment right as well as the article three guarantees of nondiscrimination and reasonable behavior on the part of the state and supplemented by the definitional section in the immigration and nationality act by which congress understood the treaty language to me  a entitlement to enter the united states so i just want to spend my last point if i may on our ultra virus argument  which we covered previously a bit but i would just point out that this court had an opportunity in the alma crummy decision which  opportunity to decide that consular naan review ability applied to a challenge to a state department policy the same policy that was described in the decision and it did not specifically address it but it also did not disturb the p k tillerson language that we rely on in part in our reply brief so with that u nless there are further questions we will rest thank you counsel thank you to both counsel will take this case under submission