why certain agency action shouldn't be left to their unfettered discretion this is it both but you have to i mean i agree with that in a way but you know it seems like a black mark on a lot of people on the other hand we have section twelve fifty two a to b this is a judgment regarding the grant of relief under section twelve fifty five and so unless you have some theory for overcoming what appears to be pretty clear jurisdictional language in that statute no court shall have jurisdiction to review how does one overcome that or is this a situation of suggested by this letter we had filed last week that if so that if she ever faces removal there might be a different forum before which she can raise these claims i'm thinking that the government should be equitably a stop heaven knows what but if we have no jurisdiction to rule on the case why isn't our only option can be considered but to address that your honor the immigration court in removal proceedings would not have jurisdiction to review the visa petition denial or revocation believe your honor is referring to whether or judges could review certain waivers with respect to u v says but but there isn't a process other than the process through which we have already gone with our client which was to file an administrative appeal of the denial of the i three sixty partizan and after that the agency actually did reopen and approve the petition back in tw thirteen only to and then later come back after denying the adjustment of status and move start proceedings to revoke the visa petition and so the the immigration court would not have the jurisdiction at least as as far as jurisprudence goes so far to to review that in the way i think that will allow you to rethink that if there are ever removal proceedings because when congress put the what almost call safety thought when when congress added sub part capital d to the statute it was in response to concerns that there were simply no way to raise various kinds of legal arguments and if all of these things had happened the way they were supposed to if the agency hadn't sat on a petition for three years and if they hadn't failed to have the period of eligibility go back to the correct date and all the other failures had she probably wouldn't be removable right so she wouldn't be in a situation where her status would egregious administrative irregular irregularities or by elations can amount to a constitutional violation of due process and there are even the immigration laws and statutes mean her her experience is worse than throwing darts at the wall entire record and seeing that the sole basis for the revocation was caused by the agency's own delay but that the problem with that is that that's a merits argument saw go back to the first point i made we have to get over the the bar on the district court's jurisdiction before somebody can do something about the problem that you've identified say that the secretary in this case can revoke at any time but it also includes for what they deem to be good and sufficient cause and congress could not have anticipated that the agency would consider its own in the secretary of homeland security's offices i'm sure they are aware of that your honor but that's why they would include a phrase such as good and sufficient cause that that does give us a standard by which we can look whether the revocation was legally sound and in this case you know it there's no basis that wasn't caused by us c i s is mishandling and delay in this case right so the other question i would have is you know the second part of twelve fifty two talks about any other decision within the discretion of the attorney general or the secretary and this court has not gone down this path but some have thought that this means that there's a role for courts to just sign the boundaries of discretion and han are off within those boundaries but that there's a possibility of abuse of discretion review and so i say our law is not in the seventh circuit gone down that path but i think in the ninth they have been in some of the i guess your honor  the ninth circuit case which we did cite in our brief does suggest as i was saying that the good and sufficient cause does provide at least some boundary which a court could review this court has also left the door open and for example the holy virgin case which i believe you were the author of decision but at the very end of that decision and the court found that or the court stated something to the effect of hopefully we did get we won't have to reach the day where we're determining that a revocation was based on religion or ethnicity or something right at it but that's been it's person was unsuccessful in that case you know we fall right are not because there were there were other factors in which i don't see anything in this case as i say other than gross bureaucratic incompetence i don't see any constitutionally forbidden factor blowing up because your honor the agency in and it's just a case where this is such an egregious violation their failure to consider the record their failure to apply their own regulations about the no fault exception and their failure even their own policy which states that there can be you can use previous experience if there's a gap that was beyond my control so ok if you don't i'd like to save my censure i think you think mr holl as your honors as your honor pointed out there is a lengthy administrative history here but as you also pointed out that's not that's not enough to get around the  we have with the discretion that at this moment what do you think about what happens in a removal proceeding to these issues come back and given subject the judicial power to consider constitutional questions i think that before it upon in upon a notice to appear in removal proceedings yes this matter can be revisited the adjustment of status can be revisited certainly so government would not take the position appeals and ultimately in a petition to review before this court where the twelve fifty two d comes in i would want to speak for the i j a but that would be for the for the immigration judge decide whether it makes a big difference because if there's another avenues if ther avenue then one has at least the illusion that we're running a respectable system you know so that people can race before it's had some place because what happened here i'm actually a little bit surprised that the government is defending this because the power of the secretary of homeland security in the attorney general to grant discretionary relief is quite broad and so if they looked at this and said we have really failed as an agency in this particular situation then they could easily fix it and here you you are instead trying to say that losing things for three years and messing up on effective dates and doing all kinds of other things are are all things that we just have to live with we are there's a there's a sort of an x factor in this in this entire case and that is what transpired in a phone call with citizenship and immigration services and that is the phone call would never have happened if back in two thousand and six the agency had simply done something with the i won twenty nine application within a timely manner gets assigned to california and drifts off into an alternative universe for a while to the extent that the court wants to discuss what the basis for that delay was i can represent that at the time  of fraud in her case no we're aware of unfortunately that you know the broad outlines of this but to get back to judge brooks point it would make a big difference to me if i thought if in  letter that you filed that they're investigating the circumstances surrounding us c i s approval of the visa petition september two thousand and thirteen if that would open the door to a respectable evaluation of what happened where she could raise her arguments about the agency's promises where some sort of relief would be possible that would be one thing if if the agency's going to slam the door in her face then it strikes me  another thing your honor i unfortunately have and this is not the answer the court would like i unfortunately have no further information about the nature of that internal investigation i referenced in that letter i found the letter says a day after i learned about it private bill as the secretary suggested that these petitioners be benefits private legislation i'm sorry your honor could you repeat that the third option is private legislation you're familiar with  private bills there are more private bills every year than there are public laws this might be an occasion for wonderful your honor i will look into that it is as far as the hurdle we have not found that if you take a look at holy virgin the final the bottom line the final holding in that case is that the court is unable to review the procedure that took place before s in reaching their decision whatever that decision might be the courts unable to it has no jurisdiction to review the facts the court has no jurisdiction to review the process and the handling by c i s and i  talking about these other things this is outrageous you know and for the government to choose instead of fixing it to take an appeal and dig your heels and it's discouraging sincerity your honour's i did speak with my client about this and that was that was not an option for them and the response from citizenship and immigration services is that there was a basis for the denial of the three sixty petition and that was that there was a lack of continuous two years work experience and there and it they completely ignore the alternative way to show the work experience and they also completely ignore that the reason for the two year problem was based in their own failure to give her the temporary status that would have allowed her to get the social security number so that she could have had the two years experience and you know it depends when you jump into the story but they did if you jump into the story halfway through then yes she doesn't have the two years or your honors of citizenship and immigration services response that would be that when the second i one twenty nine petition expired on october twenty twenty third two thousand and eleven a better move would have been for plaintiffs counsel to file for an extension of that i want twenty nine and to file her right through sixty at that time and that is something that i reference well there is some debate about that i mean it's not again it's not good for if you're to propose a possible solution such as removal proceedings or something you don't want to propose it you know with your fingers crossed behind your back you know and if you're just going to status and as far as the outcome of this letter is concerned i have no further information ok as far as that goes your honor i would want to make any ms representations at this point sure i'd just like to close that this court is twice held that goes here this is a unique situation this piece a petition the one three sixty requires the the grant excuse me requires the approval of abuse a petition before an adjustment status can even be filed and so to the extent that any  allegations of retaliation are are on the table through their response would be that the three sixty petition has to been granted before you can even file and i forty five and that's the basis for the government's   in our one status and after five years when either has to have filed for adjustment of status and a three sixty or has to return to go outside of the united states for at least one year so that's statutory that's that's clear she could not have done that which is why we chose instead to rely on the services on regulation and longstanding policy that you could use prior experience from before the two years immediately preceding the filing if the break was through no fault of the respondents and in this case are the beneficiaries rather in this case it clearly was not through her fault and i would just also like to mention again that our case is distinguishable from the the two major cases on point in the seventh circuit the writer and the holy virgin cases because this case is so egregious in terms of the administrative errors and the agency's failure to look at its own actions and the entire record that it doesn't mount to a violation of due process and that shouldn't slam the door on judicial review all right thank you very much