two you know basically reads that it applies to agency action committed to the discretion by law which basically means that there are no judicially manageable standards by which a court may review the agency's decision but now the courts have made clear that section seven zero one two applies only to those rare instances where the statutes are drawn in such broad terms that there's simply no law to apply well i am going to tell you i i have concerns in terms of since the program i guess has been in effect for quite some time and congress also said you can't issue more than ten thousand a year right it stops at ten thousand and a person could have the most the best story ever after ten thousand and they're out and it looks like us c i s is received more than thirty thousand you one piece petitions in each twenty sixteen and twenty seventeen and at the end of twenty eighteen they have more than one hundred thirty four thousand pending and so basically i'm looking at reviewing one hundred thirty four thousand cases or that it's never happened before if if it's really not a completely discretionary act how can they cut it off a ten thousand and you would have to my understanding of how this works it would be we would have to in the case if you're your client i guess he made loans of fifty thousand dollars and they can't track down the people that are extorting from him or their you know that they won't pay him back or the harassing him as far as that goes how could we ever ascertain without having full hearing signed everything how whether it should have been issued or not well you know there are a few points to make first your honor mentioned that the action is completely discretionary but i don't think that really matters in terms of things that happen pursuant to other hearings that go on i mean first you know i mean prosecutors can decide whether someone helps them or not how do i know whether they would help them or not because i don't know what what they're doing well first of all we're not asking the court to review any prosecutor's dishes decision whether or not to prosecute the crime in fact in the statute prosecution is not required the minimal is that a crime has been detected by law enforcement agency in terms of how a court could make a decision on that again we're not asking that the court re examine all the facts in rio and weigh the facts as they are in the court's capacity to review the agency's decision for factual findings this court is made clear under the international they were you first substantial evidence so just like any other case where a court is reviewing the factual findings it would be under that standard which this court of course is clearly capable of doing so i don't i don't think that we're asking the court to make another trial of the case because that's simply not not what we're asking but if i don't know then how can you cut it off at ten thousand because ten thousand and one could be the most meritorious case ever in r p you to exercise our discretion on but it there's no doubt that they can cut it up to ten thousand but we're not asking the court to  beyond the statute tory limit as well i mean these individuals have to wait right now at least four years for a decision to be made in this case which is what mr pittas had to wait after he waited and got the decision that's when we challenge the decision of right answer yes and so i think that what the court when they're looking at whether there's jurisdiction or section seven hundred two they're looking at the overall structure of the statute here to find where there is there's any standard that they can actually apply to review the agency's decision and you know our contention is that there's plenty of law to go around under the u v statute and the implementing regulations i mean the u v s a statute provides specifies the eligibility yes you have to be the victim of a crime that was investigated or prosecuted by authorities and and that you know that that criminal activity must involve or be similar to one of the union waited offenses under the statute right so let's talk about that a little bit because here it was found that this wasn't that's the argument that it wasn't and so you have to show us that that would be something we could review the decision that it's not really comparable we of course immediately think about the modified categorical approach and away we go off to the races but we do those kinds of statutory comparisons you know is it you haven't really come out and said that's what you think what how would you help us make that is analysis here well so if we're talking about right the nature of the elements so you would look to you know as as the courts do in determining the elements of crimes you look to state law the statute and state law in determining what those elements are right and that's why i said i don't take a lot of your time but that's wh district judge who says you just increased my caseload by a considerable amount i mean this list would be a change in the practical reality of what goes on in the district court yes your honor i guess i just have two responses to that the my i don't have the numbers your honor but i know that i don't cold me on this but i in mice experience you know i worked on you know several years in these cases most of the cases are granted  so you know when we're talking about the numbers that can be granted a year obviously those cases are going to be reviewed because we want to see review of agreements of case so i can i don't have the numbers but in terms of the court looking at mostly granted because i told you the number of people that are applying i pulled some numbers of how many applications that they're having and they can't have more than ten thousand a year and i think right now they've got like one hundred ninety four pending those yes there's the cases pending so they have about no but in twenty six hundred thirty thousand so if we're figuring that that's how many are being filed yearly they can't all be granted well that's a step that that says you can't create more than ten well i didn't say that they're all being granted and again just because they can only grant ten thousand a year doesn't mean that those others can't be granted later there's a backlog so you know those people who are in line right certification from the police that you've been helpful in that there's evidence of a crime when they find no probable cause to think there's a crime or you haven't been quote unquote helpful what is there to review if it's if that's i is not wanting to take the phone call from the just i don't know that this is a lot of extra work because the the numbers seem to be large i agree with judge callahan but they also strike me as applications that maybe some so and the court would be reviewing whatever's already in the record that we wouldn't be submitting any new evidence in terms of oh well wait there was there's more evidence that this this crime occurred and so this other crime the court would be limited to the administrative record in reviewing these cases which is what was the case in this case how would a hypothetical applicant get around and certification from police department or the law enforcement agency that said no this there wasn't a crime where this person didn't help decision to not issue a certification this is not in the record and so this is going to be an estimate from you how many people apply for you visas when they don't have the sort of creation  and then there's the application but that same form might say there was neither of those things and then i think you just said that would be a nonstarter is that right correct if they if there's while if they do they only sign the certification if they agree that a crime that you said that in the second certification and one of our contentions is that the agency couldn't even review that that second certification because they put in a footnote that it wasn't submitted pursuant to the rules for initial evidence immediately if there are no judicially manageable standards here i think goes out the window in terms of judicially manageable standards in environmental cases for reviewing  record have no meaningful standard against which to judge the agency action in this case that is the case the statutes do not provide any meaningful standard about how to weigh the evidence in this case is it your position that we don't look at the associated regulatory scheme you just said statute and i just want to be sure i'm understanding your position yes the court does look at the associated regulatory scheme as well however the first step is looking at what congress has authorized by statute and then looking at the regulations whether or not he's reported being a victim of a crime whether he's helpful in prosecuting the crime whether it's a crime and so forth so why is about adequate so the the question in this case is not whether or not u presented setting aside for argument that evidence should be weighed do you agree that this court can determine whether you as c i s at least consider the evidence presented familiar with all fifty two yes ok so under the immigration nationality act section top fifty two bar she just for review of certain positions including you under section eleven eighty four should no definition as to what the evidence you evidently value is for determinations of the certification u s c s makes clear in the preamble to the regulations that the touchstone is the law enforcement certification but it still reserves to itself the ability to consider its own evidence and make the ultimate consideration about that certification that's on seventy two federal register fifty three zero two four and additionally in terms of the  however that's nothing that is apparently part of what congress had intended in this case it did not specify which type of decision making or which type of categorical modified categorical or any type of approach  that should be specified in this case so because there is no measure of standards about both how to weigh the evidence of the certification and the information frighted of the certification and how to determine how to in our information he seems to have not come in contact with the immigration system well but he so does i mean is he does he he obviously if you supply him for a u v so he can't have legal status right presumably so and he's claiming that he lent fifty thousand dollars to some people and that he can't get that back is that right to my understanding yes ok i mean how would we ever it sounds like in this case that they are they didn't even really necessarily believe he was a victim of a crime i mean there was a little bit of question about that i mean and it has provided that all those decisions are handled from the same servicing center so that expertise would be developed among the same people processing this up ok are you doesn't give you legal status necessarily does it just a deportation or what how does that work it provided certain authorizations that to my understanding of that i do not remember off the top of my head i believe it's in the briefing do ultimately lead to being able to receive a yes i do immigration cases i our office does not handle the board of immigration appeals take cases we handle our federal courts that occasion in district court about programatic challenges and the like ok reviewed agency determinations based on a set of more easily discernible facts so for instance in spencer enterprises that case involved basically t touchstones that the attorney general needed to determine one of which involved employment and one of which involved monetary investment in the united states both of which are more objective assessments then the assessment as to whether or not a certification shows helpfulness in certain required tear are met isn't it mandatory that they issue something and in the statute and spencer i mean there is nothing that requires the government to issue considered a case involving another shell statute it talked about how the director shall take appropriate remedial action necessary in that case but ok let's go back to spencer my understanding of spencer is the court found that the it's solely up to use you as c i s is and yes i mean isn't that a difference between i yes your honor i mean if spencer applies here you're doomed right you need to be able to distinguish are indeed able to invest a certain amount of money into united states and whether you will indeed employee the number of qualifying now so this court concluded that by mandating the agency to issue visas congress did not leave the decision to the discretion of the agency right yes ok and here with you the discretion is left to the agency yes but with the ruling you're asking us to make beyond way beyond immigration this would be a new law for constrain the a p a so i'm i'm very concerned about that are a very fundamental jurisdictional structure here you were going to talk about hyatt just a minute ago and i actually i was on that case and i found no jurisdiction there i think it's a statute that basically said the agencies to take action as appropriate no standard of all i actually would have thought the opposing counsel would have filed this case and twenty eight days later i prefer your candor but how does this help you h because in that case the court found that there was no manual standard for that the appropriate if necessary well said on the case but that's not my problem is there it's right as appropriate what does that mean if you juxtapose that this would truly be helpful to me because you know  on my position was on that case and that standard which seems to me to be nonexistent juxtaposed against this one i'm not sure that helps the government's position at all and given that i've told you i'm really concerned about what we're going to be doing with the because this isn't discretion in this case there is not even that was still a statutory language in this case there's no statutory language that even applies to the stator mention that's why i asked you right at the outset whether you're considering the regulatory scheme or limiting yourself to the statutory scheme and i think you could you look it's all thank you one point i'd really like to stress is that for jurisdiction of the a p a it does not require the statute mandate non discretionary decisions the a p a itself assumes reviewing discretionary decisions far abuse of discretion is there in the statute that all discretion means excluding the judiciary that's different from discretion sole discretion means the language of the language from that is from discretion to review the weight of the evidence now a couple points on that first i think that this court i think that this case cannot be distinguished from a s s international that case dealt with another immigration issue looking at some of the regulations where the agency gave to itself discretion to review in human soul discretion on certain issues but the court itself said that that doesn't mean that they still can't review th factual findings for substantial evidence even in the case here where the agency reserved itself so discretion to the weight of the evidence the court can still look to see if the agency took appropriate steps to reach those decisions under the stansell evidence standard now the other  status i'm sorry what's your client status he has no status ok so he would have to get this to be able to stay he would have to obtain a you to have status  yes the other point is that our argument our claims mr president names aren't simply relying on the weight of the evidence most of the claims in fact have to deal with violations of the statute or the mandate that they consider any credible evidence relevant to the petition the regulations that deal with how they can consider any evidence admitted to determine whether there's been a qualifying crime whereas the agency need to deal with your position in fact judicial review is available is that going to require a change of the form or a moral labrat explanation so that we get something that's more readily reviewable because i'm looking at these forms as mostly check the box and some fairly small boxes  which to write things if i'm if i'm truly setting it up so that a district judge is supposed to review for abuse of discretion i'm inclined to think that the decision makers are going to have to have m explanation down there right well your honor i don't know if the form itself needs to be amended i mean the form basically is just part of the issue of whether the individual was a victim of a crime and cooperate in the crime i don't see how your client can win here with that you're saying you're not asking us to go back and look at everything but i don't see how your client can win here without first off they said this wasn't a crime that they considered but it didn't it didn't meet the criteria that and so we would have to go back in and do something like the categorical approach to decide that and then say that this harassment should be something that they consider that we would have to go back in and my understanding is they couldn't locate either of these two people that are allegedly harassing at that that we would have to believe your client you know first would have to determine this harassment crime satisfied that we would have to believe that would have to believe your client that it occurred and i don't see how i don't see how your client could ever win without just redoing the whole hearing well you know you say that's not what you're asking us to do yes your honor so the issue is  well that's a contradiction in itself and so perhaps the agency is able to rule on the weight of that that evidence because again it's it has to determine it's not tied simply to this sort of occasion you can consider all evidence in the record to make it separate determinations so you know if we were just relying on something like that well i think that would be problematic for this sort of occasion alone in itself but in our case the survey case and we were relying on it to not