believe were not addressed by the court now you said you've said some things in your brief that give me some pause and the first is your name when he was thirteen was throwing rocks at israeli soldiers and so you say are throwing rocks except throwing rocks could be also characterized as stoning i mean sometimes throwing but my main point is a serious one that you know we the record tells me nothing about what this actually was whether he picked up a handful of sand and they were some pebbles in it or whether he was really throwing rocks it could have uncontested form of behavior is what has gone on why is that not a rash even if we were reviewing it along all the signs we've just been talking about why would we say that this is serious enough to stop so i think that brings up two points for me first of all that this case really really needs more review down below to filter out those facts look for the court you know they want they had one issue in front of them and one issue was all they thought about as far as i actually i think it was worse than that because my office have evidence that any time we complained to jerusalem embassy and my office is very intimately involved the embassies i've just spent two years in africa working with the embassy over there i really have a familiarity of how these embassies are great and she lives on has a habit of every time you complain about a delay  and he had an attorney who advised him that his claim first time was not strong enough and so the attorney and we found the was not a claim on this on our appeal for the waivers and the attorney advised him that he needed to come up with more fac well the more facts or the idea that you lead these protest and throwing stones good or bad or indifferent you know we're talking about a teenager at the time that's being influenced by an attorney in chicago and like you said we have found this was already before the immigration judge and the immigration judge not only didn't when he was in the united states did not find him barred from asylum because he was committed a terrorist act of lunch which organization he found him to not have testimony these facts were before the council when he made this decision and it wasn't until two years later when we complained hey this case is taking too long we need to make a decision one way or the other and if you don't we're going to file a writ of mandamus that they came back and said oh circuit in den and the supreme court had made their decision and whatever you do with that decision we should have had the opportunity to at a minimum modify amend our complaint to include some of that new law or at least respond to the government's much into this mess the motion to dismiss was filed on the eighteenth i was in africa dealing with an emergency case for a u s citizen and we were given three days in which to respond to that because the court the local court rule is we are required to submit a brief two days prior to his that and because that was on the twenty six it was physically impossible for me to come back to africa the judge's own rules said that the judge had notices to your situation request for a continuance it's even more important to note that in his own personal rules he said before you can submit a motion you need to reach out to the government to get their agreement because in most cases it's going to prevent you from having to appear the government had be over overseas if you're going to need more time to respond when we answer we are going to be willing to give it to you so given that information and facts that we were timely in asking for a motion it was the very first one we did but i think there are two issues there's the idea of a constitutional issues which i think are definitely limited to bad faith which i think we could have pled and i also think there's the other cause of action under the a p a and when you ask about you would ask the previous case how are these issues handled if there's just sloppy writing education and i believe that those claims can be addressed under the a p a i mean one thing about one thing that it  points up this court remanded in vice versa stacker quietly said it's an unusual step dismissing entering a final judgment without allowing at least an opportunity to amend so even taking that position we would ask this quick that we should allow one opportunity the district court correctly noted that the supreme court's decision in carry the band was quote truly on all fours with this case and this courtroom sure it is actually the there is an allegation justice kennedy says that in the absence of an allegation of bad faith a certain thing falls and i take it that our plaintiff is attempting to allege bad faith so how is justice kennedy's opinion dispositive now you might say the allegation of bad faith is not well taken it's not adequate or doesn't support it but if there's an allegation of bad faith justice kennedy is telling you his opinion drops out and then we're you know you know forget kleindienst against mendell we've got seven other justices yes your honor there is even if mrs obama has a right to judicial review the visa refusal was that the question i'm trying to frame is what happens when there is an allegation of bad faith that this was a trumped up reason there was not such an allegation in the last case because the officer at least had an indictment tacked on here we seem to have that allegation and it does seem to drop justice kennedy's opinion out your honor for three reasons there is not a proper  allegations if you just take them seriously are legally insufficient your honor their number one for three for three reasons ms mrs imus claim fails first there is no allegation of bad faith on the part of the supreme court's cases the standard articulated in twelve days is whether the allegation is lost so is it your argument that although it's true there is an allegation of bad faith your honor it is our position that the allegation of bad faith is neither sufficient to sufficiently played with sufficient particularity and also is not don't have to plead bad faith with particular addressed yes your honor that question yes why what do you do then with paragraph thirty seven which says the decision entered by the united states consulate in jerusalem was not made in good  say all right now you've moved on from what you were talking about she fails to meet the high standard of bad faith in the context of music where you want a high standard of bad faith where does that come from no role no i'm sure the states of mind may be a eged generally right fraud has to be alleged with particularly there's a list of things in the rule that have to be alleged with particularity and bad faith is not on that list so why is there a high standard your whether you're going to win this case in the end based on some ground that we've been try going to deal with everything from kerry ginsberg into kleindienst to you know who's opinion and at least under some views of the law whether the consular decision is made in good faith or bad faith has an effect on the way the doctrine of consular non review of villany operates it's not something it's not a doctrine that all justices on the supreme court would say applies no matter how bad the faith of the consular officer may be and so on other words there are some limits there's another way to put this we know from five justices in did that the that the effect complaints you demonstrate the things on the record the question for complaints is whether the allegation is plausible and you haven't been willing to engage that question this allegation of bad faith in the complaint is not plausible  there's not just sort of a maybe it would be enough for it to say the paragraph thirty seven and i read to you that there is actually quite a bit more to your honor i'm unaware of any fourth district court or of color or having found bad faith in the context of these of refusal it's awfully important to distinguish between the twelve the six is the summary judgments things that are resolved very few things are resolved on the basis of full proceedings anyway but if there were one those can't say anything about this maybe somebody else can somewhere maybe an agency maybe they can't but we the court have no authority to speak and that's not a dismissal with prejudice it's not a ruling one way or the other on the decision does not require any written notice alright let me give you one example this isn't quite on point that you seem to think that to say that terrorism ground is some sort of magic thing and i will remind you in a similar situation the chemical weapons convention the supreme court decided a case a couple of years ago called bond against united states where a wife who was angry at her husband put some chemical substance i think on a door knob or something and got prosecuted for violating the chemical weapons convention and the supreme court basically said oh come on you know this is way over doing it and so if you want to call every you know effort of throwing a stone at sound body if it's on the west bank terrorism i suppose you can but bomb seems to suggest that we want to be a little bit more careful with our use of these here you're hearing from our full series if i may just very briefly it is speculation on to to assume that the sole and perhaps only basis at this sole and perhaps the basis for the visa refusal under a three b was rock our complaint as being true as stated and then move from there if you do that and you accept the fact that we've alleged bad faith then there's no way to dismiss the complaint at this point or in the alternative if he didn't feel that we had pled enough facts based on bad faith and given that we had the din vs carry decision the one thing we hadn't had the supreme court you know maybe had we had the decision we would have added in other facts we should have been given one opportunity to a actually busted for government employees issuing the says to visitors in texas wrongfully for a price of fifty thousand dollars so while other people because they didn't have the time if they weren't getting did put that in our complaint even removing the idea that the council it was u s d a s that mentioned that the reason it was denied was for the rock throwing even if you remove that then you even have lasted and we still don't have any sort of reasoning to justify the bad faith on the part of the counsel it so i would ask this case be remanded that we be given an opportunity to amend our complaint and also respond to the government's motion to dismiss all right thank you and thanks to the government we will take the