a consular non review ability case it failed to consider the overview ability of the actions of the other defendant agencies whose actions are reviewable under the administrative procedures act determinations regarding inadmissibility based on terrorism ground are made by the department of homeland security personnel into the homeland security act of two thousand and two they are not made by a council officer furthermore the palin's are not asking the court to review the admin in this ability  determination or to substitute its judgment for that of any of the agencies rather the a pollens are simply asking for information whether in a specific general in camera in summary in whatever format so  and i i'm sorry to interrupt you so you did a nice job of language in your brief the entry in fact but what i stumble on with standing and i just wanted you back a step but you brought this  the redress ability so you just brought up the relief you're seeking and as to dr merriam i pronouncing that correctly yes you are ok as to dr mary it seems to me her injury as you describe it is the same injury that was laid out in trumpy hawaii which is the separation from a lot of on and how is the information that you're asking for tied to that in other words how does it make it rigged how is it redress simple your honor we believe that if we are to receive some information that would lead be a talent to be able to counter that or or provide like i said requests for a waiver or addressability i'm sorry to interrupt again but for redress ability don't you have to have a likelihood of success in other words doesn't have to make it likely and what you're saying is i'll get information and with that information i'll be able to show the government they're wrong in essence but the government there's no requirement that the government accept it or that we know what the information is and we can say without a doubt the government's go have to do it right so doesn't is there any case law that would say that sufficient for redress ability of a different injury which is the separation i think there are no we're not we're not saying in the absolute if we get the information it will be granted there is a discretionary factor we are saying that if we get the information then there is a high so high potential having the injury redress it's not doesn't have to be an absolute i don't think a why that had  loop if we obtain the information then we know we need to apply for a waiver on this basis or we need to show that he did know or because right now we don't know if it is one of the too many ors or if if we get this and if this happens and if this happens that that's where we're dressed ability says look you got to tie it back right that's what the courts have said and what it as soon as you stick in it it sounds like it's not redressal anderson your point  procedural standing or what's your injury in fact it's procedural the fact that not having the information is injuring the client and then we go to the substance of keeping them apart ok so that's that's different than the trompe hawaii injury that you point to in your brief and i didn't see that in your complaint nor do i know is there a case that says lack of having the information from the government is injury in fact  because other agencies are involved is that the argument that that is the argument for why this is but we've also said in the attorney and i don't understand that argument i mean you're not just going ability you don't have a cause of action kind of doctrine in my understanding i don't see how that doctor how that non reviewable your absence of a cause of action can be circumvented just by saying well i'm you know they they they defer to some other agency when they when they make this decision or it's another agency that's making the decision how does that undermine the logic of it it's not being  is reviewable so it's not if you fall in the dark and you can't just you can cite the the ministry of procedure act in any one of these cost around review ability cases and they would just take you to the seven hundred and one where it says  i don't know whether it's committed agency discretion by law or it's precluded by big precluded by law but it's treated as non reviewable you saying in any case where we're not review abilities are you can just use the a honor well then then the a p a doesn't help you you've got to have some reason why this doesn't apply and you say well it's a different agency does that make sense i'm not saying how it makes sense you have to tell me how that makes sense in other consular decision cases other than in this ability based on terrorism the consulate does make the decision they determine whether there is sufficient evidence for marriage fraud they determine any other and this ability except when it comes to terrorism ground that's  exclusive purview of the department of homeland security does that make any difference under the doctrine well your honor it also may be done on fridays instead of wednesdays i don't know those are differences that seem to make a difference well your honor we believe we believe that it does just for a foreigner trying to get in the united states is not reviewable well what difference does it make what agency of the government is denying the visa i mean it's a difference a formal difference but i'm not seeing how it's a difference under the theory of  denials of visas that's consular counsel acts on behalf of the government the government's denying the visas it's not reviewable whole idea is is that it's in the in the sovereign power of the country to keep non citizens out for whatever reason they decide to do it as long as they meet side statutory basis for as well appears to be in the cases i'm just trying to see why it should make a difference that it's a different agenc and i'm taking your answer to be well it's just different is there a basis or a theory for the difference in the theory that we have is that it is a separate department it is not the consulate officers do not have a role in making that decision why are a different way of asking what your drivers is why was the consular some what was special because if you look at work concert or non review ability came from we're looking at the den case if you go to the case dan's relying on we're talking about mandela mandela doesn't use the word consular non or view ability in fact it says the court said and i'm quoting we hold that the executive exercises this power negatively on the basis of a facially of legitimate and in this area and when they give a legitimate and bonafide reason we don't pass it why don't we bound by that and the language of mandela that's still good law right that that is but then that would mean that no executive agency would ever their actions would never be repeated and actions are just their actions in denying visas on the right this is only relate mandals as judge rogers just pointed out related to visas of course but even mean that whoever on behalf of the government has the power to deny visas and denies it doesn't get reviewed in court but again and the limit even though there are restrictions you still have to or to relate to the nature of consul or non review ability and the nature of it being that it requires an exercise of discretion and the challenge to th the appropriate challenge is an exercise in bad faith but in the case before us i understood your argument to be that there is no discretion at all because this is based on being placed on a database and there is no consul or discretion that can be traced it's a black box is is the doctrine under your argument related to the fact that you have to have the ability to have exercise some discretion such that the areas the appropriate challenge under the doctrine to bad faith and a database is a black marks of no reasons at all that is correct and if that's the case they and is your argument that consular non review ability is just in applicable because we have a double level of database listing help me understand how we whether we are saying cancel or non reviewable it it really doesn't apply in this circumstance because we live in a new world and they are in which things are based on a database and we know here that the suggestions to one of these databases like ninety nine percent of them are accepted you want to put no and that's why we're seeing it revealed in that the right under the statutory language i mean don't don't we have to pay attention to the language of the statute and the language says it appears i'm using the language of the statute it appears the consular officer if the consular officer knows or has reason to believe such alien isn't eligible to nothing in this prohibits the consular officer from rejecting it it's up to the consular officer they could say yeah you're on that list but i have all this other information that contradicts that and so i know that list is wrong because jack smith there are seven jack smith and you're not that jack smith so i'm going to give you a visa they're exercising discretion there and they're permitted to do that under the statu requires there's no shout here it says if they decide so it's in the it appears to the consular officer so it's up to that and the consular officer knows or has reason to believe i mean that's all about the disregard what the supreme court said and did and i'm talking about justice kennedy when he said a citation to this is enough to make it be on the court to review you know we do and i believe that  said that mrs gin and her husband had admitted that he had worked for the taliban so that there was some knowledge there but tonight if you look at two thousand four hundred and nineteen and i'm sorry to interrupt you  justice kennedy kennedy's reiterate she says and i'm quoting a respect for the political branches broad power over the creation and amassed ration of the immigration system meant that the government need only provide need provide only a statutory citation to explain a visa denial i'm sorry and that's from trump quoting justice kennedy in dan and so what trump says and there's five justices saying it is once you provide the statutory citation it's  the purview of the courts and i think you can correct me but i thought that was five of them which means it's not even we don't even have to go through the marks in court justice kennedy also said that a groundless decision of my not comply with the legitimate and bonafide reasons and held that that was not the case and then because her husband had conceded that he worked for the taliban in our case we have absolutely no information at all on the appellants have not worked for any terrorist organization they're not affiliated with any terrorist organization and unlike din was she was asking for a more specific explanation even though i knew that her husband worked for taliban were asking for some information in any form it doesn't have to be detailed it doesn't have to be  specific just some information is it coming from a database something that we can then look at and say ok now we know how to proceed is there is there something in the record that  the presence on the database is an automatic and mandatory denial now there is nothing but your argue is there anything in the record that suggest the two thousand and nine decision in dan has been and that the database situation has changed to the two thousand and thirteen denial in this case do we know that there's been a change in the database methodology is there anything in the record that addresses that there isn't but in the din case again they had knowledge of what he had done so it was in a database issue as where this one is if we believe the database and do you say do you think it is your argument that there is no case that has been pressed in which the entire determination is based on presents on a database yes  you're not challenging viz a review ability on the grounds that it's automatic no you just want to know some more information so that you can get a review of it right and i believe i said we didn't know and once the nicest unfree your requests that you have a right to other information what is the grail upon which you make that call and the fact that councillors decision has to be facially legitimate invite without any information we don't know we we don't have the whereabouts for anyone to determine whether it's really legitimate and bonafide because we don't have unlike all the other cases cited information that says what the person did and where they were looking for the more information everybody knew what the grounds were it's not it's not so in this case and additionally the the waiver provision of the specific statute says that a person has the government is required to to provide and justice kennedy make clear that to the extent that a u s spouse has any claim the government for fills whatever obligation they might have simply by says by citing the statute in that case it was  conveyance of that information in in any form indian the taliban issue arose from the plaintive and nothing provided by the department the denial letter or information directly from a counselor or representative none of that came from the government i believe the record reflects that i believe you look at the opinion and i don't know about what's outside the four corners of the opinion i believe that's correct and if you look at justice briar's dissent he specifically says we have no way of knowing what the basis of the denial was we don't know if it was because he worked for the taliban government or if it was for some other reason was that there was a situation which the plane of came forward and said this is the reason that the government the state department's general position is that it either confirms organize whether that is in fact when someone comes forward and says this is the reason i think the visa application was denied the general response is we neither confirm or deny that that is the case so i mean i think that's this case is very similar to two kerry requires you to say that you could be successful and i think the question here is this is the relationship between the consular non review of billeted and the very fact that it's based on the right of the government to choose to exercise its discretion and the way to challenge that is to say u s or starts that discretion in bad faith and i think the lawyer recognizes that concept i'm struggling with what happens if we have reached a technological stand that that there is a database it's created by the by the same  want to get into the fight between agency issues but it's a black box no one knows how the database is or at least no one shares or it's two levels up and then the way consular discretion is exercised is to be by and by presence on a database i'm struggling with health care works with the whole concept of consular non review ability it seems to me that you have to have a human exercising discretion some hoyer with knowledge of facts in order to claim that that was done in bad faith you can't  to exclude individuals and to exclude them on confidential based on confidential information and what is the bad test how can you challenge it on bad thing so that that deals with justice kennedy's concurring opinion where a plate of could show bad faith but that he was not closing that door he's just saying in this case you cited a statutorily valid basis that's to the extent that the plaintiff had any claim that satisfied whatever obligation the government may if if the plaintiff alleged that they were put in the database by someone who was an addictive against them and they had particular eyes to facts by that could they challenge it or not under your theory well there's no there's obviously no case in that deals with that point and i understand i'm asking a hypothetical but i think it's an open question but i think that the best answer would be unless they could show that the  wait a minute if the consul if so what this i think both sides as i understand it mandela talks about in this is a majority of the court executive discretion correct so what we're really talking about executive discretion justice kennedy would say it's absolute after mandela justice kennedy and in creates what appears to be an exception and i think you're right to focus on that and judge trant obviously is because that's controlling under marks it seems to me am i right about that well we don't even have to go to that analysis because i'm trying to read why the courts sided justice kennedy ok so will even accept that so then if the bad faith portion is a test and we're talking about executive discretion and let's just assume that the executive bases its discretion on facts that were put in in bad faith could someone challenge that it i'm sorry your honor i don't have the answers are i just i didn't i didn't think that through but but i think we're kind of and i ask a related question i'm sorry what if the what if the government outsourced this to a private database and so a private database indicated tax was a database that's privately run indicates that they're they should be excluded and then the consular excludes can they challenge that will probably not because there's case law going back to the fifty's dealing with the ability of the exacted to exclude an individual and to do so based on confident confidential information and and that what  we're talking about we're going away from terminology is how much information does the government have to provide to someone when they're in they're not allowed when they're not granted of these sort of when they're not allowed into the into the country and think that that is the doctrine that is completely overarching because there's a different there's a different policy behind tex and though the databases related to terrorism correct it's not necessarily related to terrorism tax it would include things like border crossings it includes a lot of things there was there was this discussion started in i guess paragraph ninety one dollars of the amended complaint where they talked about a tax designation designation it's a platform for sharing information but question is that different from the t s d be the terrorist it is different database and does your answer depend upon whether you're in texas which is the sharing and and the terrorist database t s t i'm sorry can you please reprints that the the the t is there a difference in your argument you were explaining how tex a sharing form so i'm tying it back to the terrorist database right and i'm asking you if if you can answer the question that you were answering based on the terrorist database or if your argument completely over arches in any dalan with both categories in this case which is the denial of a visa and then the nd category is the harms that resulted from this that are separate of these so and in this case the only injury that's been alleged is the denial that these that's the only injury that oh if that's the only injury then i'm surprised if there were two orders in the case  the court below took up the visa issue and issued an order and said now i want more briefing on these other injuries and then he ultimately denied the other injuries on the basis that there was not standing but that was not the vsa denial you're correct and in irresolution of the procedural history we think that's where the district when a little bit off track because that the doctrine governs not only the denial itself but but the information that so there was there was no need to to provide additional briefing or to get into these side issues issues that have been dropped on appeal add the issue is obvious it was denied i understand that there are there why they would they want to challenge that decision but they're not entitled to any additional information based on relating to brief in that it focused on the issues which i thought were your strongest issues and didn't get into some things which i can't really think are weaker such as the lack of standing you know really are you standing issues your group minders with my understanding  that you can waive them but you're not really making you're making judicial review ability cause of action kinds of i correct that's correct that's we're focused on because you're focusing on what i can see why you might do that if you can explain if you want it makes sense to do separation of powers as a matter of article three standing could congress say if you get to not have the right to information and you know maybe they would maybe that would violate some kind of constitutional executive power i suppose you could are putting that aside or putting that aside yes i mean they could they could say you have to provide more information putting aside your concern just now and then i but they chose that statute  wouldn't be thrown out just because you haven't shown when you bring such a suit that you will win it well i but we really didn't get into the issues of the redress ability because the it's the law is so clear under kerry of relief that you're saying congress doesn't provide so we did briefly talk about standing in the district court but that was in the context there were all these additional claims and they couldn't show an injury for with respect to those weapons but but but here i mean i think it's there's a straightforward issue and it gets a little bit different in this context than in other context of law which is a foreign national just doesn't have any ability to challenge the decision to exclude the individual and i see perhaps to throw in one more thing into this big stir perhaps it's that the the individual in fact does have standing to take this case but in judge rogers words the answer of the government has the right to say it's not just issue a bill it's not you have there is nothing further that can be done because our doctrine says know and we cannot say why i mean is that your position we can always say no and we can always not say why but i like qualifies as characterizing what i'm saying yes i agree with that except i wouldn't bench on this issue that the focus we believe is that the case was properly dismissed i understand there's there's differences in terms of the under the theory and on what what when it why it should be dismissed we would simply point out  it is very closely related to these cases and it is in that case the court did not need to sort of tease out these different these distinctions in and and that's probably applies here as well so  that before you sit down i would like you to the summary answer to my concern and we've all asked questions about it that that the determination could be made on the basis of listing on a database the database presents on the database being the absolute determine the tive factor is it your position that if that is the way the system functions that's perfectly appropriate just because of the what the statute says it says reason to believe that that's all that the statute says  items get on the case it's just the black box is acceptable well obviously agencies communicate with one another and share information and there's nothing improper with that  this seems like the very similar to the argument that was advanced and carry the dead that the bill you're just you're just doing something based on some database but that that that didn't matter to justice kennedy and it shouldn't matter here i have nothing for a bottleneck the justices have any questions for me and i thank you for your time thank you we appreciate your arguments will take this difficult question of your advice and issue an