to ask you about that second issue because i have it hard time determining what proceed you will issues there were as distinct from substantive issues i know that you disagree with the ultimate finding that there was no demonstration no rios but i wasn't certain what additional procedure you thought was missing and how it could have made a difference your honor we agree we disagree with the final conclusion in so far as the procedures that were applied in educating us petitions didn't comply with the a p a what specific procedure was deficient exactly what  and how did it make a difference you are the first the first issue that that that existed in this case was the creation of the beyond a reasonable doubt standard without notice and comment now beyond a reasonable doubt standard your honor what has never been a played in an immigration case before in fact there is no justification in the language of the statute that somehow justifies this presumption that beyond a reasonable doubt standard exists for the a w a q so what what  comment because the agency still has to comply with the constitution and provide a full and fair hearing and when they when they enact in completely new standard of proof which is a beyond a reasonable doubt standard that has never been applied without any justification from congress they have a place as a substantive binding norm across all cases it's not an individual latest issue we're on or other circuit courts that have looked at this have found that it is an equivalent to ask accord to do what you are doing asking is equivalent to asking the court to review the discretion of the secretary in determining the standard that will be applied to individual cases and that is equivalent to examining the discretion exercise if there are some important i'm sorry are on some courts have held that however those courts have looked at it from not from a perspective of violation of the constitutional right other the determination was discretionary or not the procedures still have to comply with the constitution well but it seems to me that all of your claims challenge the secretary's use of his soul and on re discretion so since they all challenge that then i guess i'm having a tough time understanding why it is somebody needs to send it for comment your honor that i mean th the very the very words soul and unreviewable discretion would even lead one to believe that this is a little bit different statute than we've got in others decisions where our circuit has suggested we could review the constitutional claims this is a different statute with different language and now you're trying to say that with that language none the last one has to stand it for comment they have they have the right to create a new standard of proof even in the congress doesn't say that but that's the whole argument is that when they do that they have to undergo notice and comment because the creating a substantive binding rule that applies in all cases and this is not an agency interpretation that cannot play an individual ace case is that creating a rule that a place for every single a w a petition but it is a rule that adopts a standard that is itself part of the secretary's discretion to determine and also the procedure still has to comply with the constitution your honor even in case of a discretionary deter the discretion as the court has held in one terro is the standard the substance of the procedure that you are challenging you i think it would be interesting for years on the honest application of facts to date here suggest that your application was filed before the amendment there  then the amendment happened and then the application was approved what you're suggesting is that the mere filing is enough to suggest that the amendment did not apply but the amendment had nothing to do with filing the minimum had to do with how the secretary would determine the petition once filed there was no filing we wouldn't even have a case so the very fact that it was filed had really nothing to do with what the amendment in the respondents raised in so far as the question at issue here is mr give us cases a little different because the presumption the statute the statues apply prospectively don't have much about the application unless  and what's said in the amendment the amendment would not apply to anything that they'd already determined prior to amendment but any i'm in the petition had not already having been determined it seems that the a have an application to your honor but the main file language only applies to a future people not people who have already filed had congress wanted to say that the language of the statue would be a little different in that it would it would have said that it applies to all know ever been filed in this case the fact that they specifically engrafted clause eight into clause one which is a future oriented statute it governs the regulations for a future class of citizens who have not filed the applications yet based on this petition that have been filed but that filed and which cannot be read separately from clause one because they are part of the same subject area framework your honor and the clause one that is the clause when that in graphs to is a clearly a prospective nachman that that is a predicate legal question over which we would have to diction you know i know stand your how was it different from the decision of whether there is a conviction at all covered by the statute which was will acknowledge that but with the answer to the predicate legal question doctrine what they're really going out on are things like what was the law at the time things of that nature and that is why for example we do not contest that for example the qualifying crime if a if the petitioner were here arguing i never actually committed the offense that they are saying i committed or i was never convicted of that offense or in actuality offense itself was not one of child molestation or sex offense because the child that would be different that would be the type of predicate legal question for example that the circuit was trying to get at why wouldn't we have jurisdiction o effect which has nothing to do with discretion the congress either intends it to take effect as a certain time or it intends it to take effect at another time and it's absolutely not in the secretary's discretion to decide that situation some of these same presidents have a pro to the constitutional challenges to the statute by saying look we don't know that we have jurisdiction but assuming without decided yes that we do have some the court is obviously well capable of doing that and we wouldn't have a tremendous problem with that just because these challenges are multiplying all of the country and it doesn't really matter whether we keep tactic adopted by the circuit that wouldn't be a tremendous problem for us we think that however it would be at least important to acknowledge that the court doesn't actually have jurisdiction to the side or to second guess the district attorney general second guessing is one thing in the constitution is another and i wonder if you would be taking the position that we lack jurisdiction over even constitutional challenges if the secretary announced that statute would not be applied to women that would be applied only to men and even though there are a few women who have committed these child crimes we you know we're just we don't believe in doing that we're not going to do that and you know i that the sort of constitutional challenge and it's just an example that that we would have the power to hear i think the supreme court's case on that point is that where actions by the secretary are so clearly ultra vires so beyond the pale that effectively the way out of that scenario would be to say the discretion here was not actually discretion given to the secretary in the statute so the the such it speaks in terms of a soul in our people discretion but so rebuild this question to decide what and if you were to say you know when the sky is blue that i don't think anyone could actually meet this no rescue term of something completely arbitrary insane i think that what the panel could could say on that point to get around this problem because it's a thorny issue we understand is this a those are essentially void have an issue they're not actually destruction or determination because i so clearly unconstitutional so clearly not decided based on any relevant factor whatsoever but but really it seems to me that if that's your argument then you're really saying we have the ultimate authority to determine a constitutional claim as long as it reaches a certain level well that as long as it doesn't reach that level we have no authority i don't perhaps colorable is one way to does yad past me not for us nothing like that obviously nothing like that is presented straightforward way but i don't want to say that something that is very clearly ultra virus beyond the pale of the secretary says this question ari authority would be absolutely immune from judicial consideration if we if we adopted that idea would that a jury with the eight in the six circuits well the six circuits determination was that normal constitutional argument asian is inherently bound up in argument i think what judge bob was trying to get at in that decision was that effectively if you're going to make the argument about procedural the process if you're going to make the argument about the fundamental right to marry when they're talking about the relationship between the petitioner and the intended beneficiaries and this case has a wife and her three teenage children at the time they're teenagers when you're dealing with somebody who's convicted with a crime  of a minor under i think it's fourteen years old that sort of germination is much more fact bound then i don't believe that women could could ever do this type of thing so i'm only going to apply to me an invidious discrimination claims one more question if i my one way of looking at the arguments as i understood it from the appellant is that in essence the secretary has taken such a harsh standard  it's no discretion the secretary is saying we're just not going to grant any of these in if i mis stating the argument i apologize but reading the record of the various interpretive guidance that or that the secretary provides if that's the argument would that permit us to dixon to review an exercise of discretion that essentially says we don't have discretion in individual cases no and let me explain why it would not be because to the extent that the secretary wants to be generous to these petitioners that is solely within her wheel house that's or that is solely up to her if i want to also just if i might point out that if you were to strike down let's say that the is beyond a shadow of a doubt beyond a reasonable doubt still might leave some doubt but you really would say i don't think that would ever come up i just truly don't believe that would happen beyond a shadow of a doubt it would be much more kin to no risk that would be much more  and i also want to point out you know these petitions do get granted sometimes i've come back to my client on this and ask specifically for the note that in the record no that's not on the record because that's not really something that would be in the parent record for the agency to say by the way we want to reassure you that sometimes we do grant these things but that is something that that has happened that's been present in multiple cases across the country and  it was a factual inquiry on just because in a battery proceeding someone has to prove no consensual touching the use of the word no that's not automatically mean that now there's a heightened standard of proof in fact the only presumption that makes sense given the tory language that congress knew  how quickly these are sick need to go through notice and comment because these are not factual specific inquiry thank you and honor the case just argue submitted we appreciate very much the helpful arguments from both callsign we especially thank