supreme court in coup khana that there is a presumption favoring judicial review of an agency's actions it takes a clear and convincing evidence of congress's intent to dislodge this presumption the national interest waiver statute does not contain this clear and convincing language they international controls this case as an a m a the statute at issue uses the term maybe it uses the term deem in reference to the agency's discretion the national interest waiver statute provides that applicants with advanced degrees or exceptional abilities may bypass the requirement of a labor certification when the attorney general deems it to be in the national interest the term national interest is of paramount importance here because that is the statutory hook that's required under any and spencer enterprises to obtain judicial review and they after reviewing spencer enterprises holds that twelve fifty two eight two b two does not apply where one there is a statutory hook defining the exercise of discretion and two where there is a constraint on the agency used exercise of discretion such as a precedent agency decision for instance in a way the court found jurisdiction to review abuse or revocation because the statute contained the statutory hook of good and sufficient cause and because there was a precedent decision from the agency in matter of tawfiq which is to find good and sufficient cause  ask you is your argument that the statute does not grant discretion to the agency or is your argument that the statute does grant discretion but there have been parameters defined sufficiently debt the discretion this cap and the latter you're on ok right so that it does granted scrafton but there's a statutory hook for spencer enterprises national security and then we have a precedent precedent decision the nice doc decision and then that was vacated in a manner of dennis are interpreted in the term national interest and this is where the court's case law is different from the only other circuit court to address this precise statute which is the d c circuit in the court held that twelve fifty two eight to be to apply to the national interest waiver because there was no constraint on the agency's authority but the law in this circuit is different under and they because the precedent establishes that when there is a statutory hook and and precedent decision issued by u s c i s is not binding that ignores the clear language of the agency's own regulation at eight c f r one o three point three c which states that president decisions are binding on case of administrative closure before the agency that was something totally and reviewable committed to discretion but once the the board issued a precedent decision in a matter of a teasy in defining when ab enclosure is used then it became reviewable before this court because the court look to whether the president was violated it is clear that the nice dock decision is similar it was a restraint on the agency's authority and set forth the standards for the national interest national interest waiver standard such as potentially the weighing of the evidence but here we're raising specifically issues regarding the change in law with matter vaness are the ultra virus argument that the regulation is altered virus to the statute and that nice dot was ultra vires to the statute we raise an arbitrary argument because the original decision said that dr percy and engaged in taxation research but that's actually not his field he's an engineer and the other issue of course is the lack of notice issue on the second petition he never received notice of that and not as a totally the commissioner told us it was mailed right so i last known address right it was mailed he didn't receive it and there's this i'm sorry i know the salsa decision addresses this precise issue in the context of removal proceedings where something is a male but not received so long as it was me no to the last known address bunch of case you know that insult there is not a presumption of proper delivery with regular mail right so insulting you can submit an affidavit and say i know that was the right address but i never got it and then that's looked at as an evidentiary issue and that was not done here i mean the idea that dr porsena didn't have the incentive to respond is ludicrous because he's been trying to do this over and over and as soon as he found out that their request for evidence was issued he immediately moved more importantly this is not something appropriate under twelve fifty two eighty two right this was goes to the merits of the case you know but regardless of how we decide the twelve fifty two a two issue you still come down to the there's no presumption that under regular u s mail is delivered just because there are problems with regular u s mail where things are not received this also just goes to the second petition most of the arguments we raise are on the first petition the primary argument being after we filed this case the board withdrew from nice guy and then issued matter of dan a star and we were just trying to get our remaining to consider this new precedent decision but the court dismissed the entire claim under twelve fifty two i also want to address the court's decision and gephardt which is the adam walsh waiver case the gephardt decision just recently issued it addresses eleven fifty four a one a eight i imagine is one of the the court even an ultra vires argument but gephardt is not a twelve fifty two a to be two case it isn't a case where congress was explicit regarding and review ability and it does not mention a nor does it mention spencer enterprises so decision in closing i want to get a point out that and coo khana require this court to resolve any ambiguities in a jurisdiction stripping statute in favor of the narrower interpretation and to apply the strong presumption behalf of the believes the united states citizenship and immigration services the court should dismiss the appeal for lack of subject matter jurisdiction this court should determine because consistent with its prior decisions and  schneider and the first circuits persuasive decision in zoo that the national interest waiver is a pure discretionary grant of authority to the attorney general and the agency plain any question of law or constitutional claims sufficient to invoke the court's jurisdiction and the district court correctly dismiss be the complaint for a lack of subject matter jurisdiction as mentioned your honor the court deal with the ninth circuit decision in an international incense are but d c circuit laws not binding on us so while it may be persuasive we are bound by our own precedent what sure response to is reliance on me yes your honor our position is that an a and spencer can be harmonized with the agency with the court's determination here that there is no subject matter jurisdiction and that is because there is no language in the statute that provides into the hook for this court to interpret or have law to apply to interpret the national interest waiver the national interest county the presidential opinion the from the board your honor at the dentist our decision as well as start which was in effect at the time that the agency issued its decisions here are interpretive guidance for the agency may not turn to that because there is no hook in the statute the statute must be considered first and in the statute there is a pure grant of authority of discretionary authority to the agency national interest is defined nowhere in the statute nowhere in the regulation not even in the policy statement of the agency when it issued its presidential decision the council doesn't your argument prevail only if we decide to disregard the published opinion from  that the only way your argument can succeed because doesn't that opinion give us the objective criteria to cap in the discretion of the agency no your honor the government's position is that the court may not look at the agency's interpretive guidance at all because there is no way in which in the society is us a published opinion is only in its interactive guidance for the agency that is correct or are this case deals with a statute that is similar to the statue at issue in the supreme court's decision and webster where there was a the national security act was that play and the language in that statute was one of their excuse me involve the discretion of the director of the cia to terminate the employment of a employee when it was deemed to be in the national interest that language is the same as what we see in the statute here for the national interest waiver it is undefined congress intended  a governing president yes you're on the court the the government makes reference to the court's decisions in and as well as spencer because again those decisions specifically say that there must be a hook in the statute itself the court must look at the statute first the statute does not define or give any kind of criteria by which national interests must be determined by the attorney general it is not like the it is not like the e p five statute those were the statutes that were at play in spencer and anna and there accordingly the court found that there was law to apply here national interest is completely and utterly undefined in the statute that is consistent with the supreme court's determination in webster which also dealt with national interests national interests as not some sort of criteria for the agency to apply it is the determination itself and it is entirely subjective it involves economic and political choices that congress intended to keep out of the court's purview under twelve fifty two a to b two so i look at a counselor really two issues here whether the statute allows review of the national interest waiver and then the separate question of whether there was due process here it could very well be that the first one is purely discretionary but the second one honor and in that case they found that the presumption was effectively rebutted because the individual had participated in her immigration proceedings up to that point what cases that salta your honor here however there was the presumption was not rebutted and that is first of all because there is nothing in the record that indicates he wasn't actually living at that address for at least a year after the notice was that second of all your honor he had already b een he was already in receipt of a notice of intent to deny his first national interest waiver and actually did receive the denial during the pendency of the second r f e on the second national interest waiver so plaintiff had a rat a reason to want to avoid further engagement with the agency at that point he certainly in this record has not rebutted the presumption the district court was well within its discretion to find that there was no colorable due process claim  decision before you not mouth a decision yes your honor course indulgence fully ok i was just going to ask you to show me the language that is for regular milde there is a perceived presumption because i thought it it but there is a presumption in regularity your honor may not be as strong as certified mail and certainly here there is nothing that rebut it that presumption other than plaintiff thought serving statement that he didn't receive notice you will know that it says here that less is it's entirely contrary to the record which establishes that he did not move until june of two thousand and fifteen and that these different decisions were mailed in twenty fourteen in october and august  living at the address where it was mailed and certainly your honor he already had notices on denials and intends to deny the first national interest waiver at the time he claims he never received the second under this record there's simply no there hasn't been an effective rebuttal of the presumption of regularity in the agency's conduct here on earth or the other than a denial that this person ever received a notice one forty was issued on the seventh of october and that counsel for the individual actually called on the twenty eighth of october of the same year and so he certainly was aware of the denial within a week of it having been issued so again this cuts contrary to any kind of assertion that he never received the denial your own i also wanted to address plaintiff's repeated assertions that there the agency did not consider his actual  area of knowledge or field of experience when the national interest waiver was denied that assertion is completely undercut by the record it's unsupported in every way a real love to look at your honor our position is that the court should on discretionary grounds your honor but i want to address a misrepresentation of the record that was made by counsel and i wanted to point the court to pages ninety seven through one of four which have the agency's decision on it where the agency unequivocally states that he is a mechanical engineer they did not mis understand what his field of area is this is a very thorough decision by the agency some nine pages long where his various credentials only the last decision of the agency is the april twenty second twenty five fifteen decisions so any kind of other statements in the interim decisions which we have heard also not incorrect are really irrelevant as well  more point your honor as i wanted to to address this issue decision is certainly persuasive authority from the d c circuit but the government submits that it is very important for this court's consideration because of two things first of all it's the only other circuit to have to consider its jurisdiction regarding the national interest waiver but also because it post dates this court's decision and and and in a spencer and it does address and  in fact it says that even under the nine strict it's more stringent basis regarding criteria for pure discretionary grants of authority this statue would qualify and it's tied to the d spencer because plaintiffs just argued that that decision makes no reference to ninth circuit authority when it made its term ation that is incorrect in conclusion after i just i'm just grappling with the language in a point seems to permit us to look at sources outside the statute to determine whether or not  discretion of the agency is cap and why am i wrong in thinking that language such as decisions made on a purely legal basis is whether or not that basis is specified  the end including that that's not the legal standard outside may serve as an anchor for jurisdiction by looking to the ins regulations for example why doesn't that authorize us to look at a in a pit of public opinion from the agency your honor and in and it definitely says that you can look to interpret it to agency determinations however there must first be a hook in the statu itself and it goes beyond that to say in the dish and to the statutory language we may look to other sources what language are you relying on to support your argument that there must be a statutory book it's talking about standards gleaned from regulations and agency practice yes your honor it says there must in other words be an anchor in the statutory  anchor must be in the statute itself here they're only slightly because looking down through that paragraph it's like the fifth sentence is this looking to judicial precedent is one of the met that we would ordinarily use to understand the statute yes your honor there must however be an anchor in the statutory language itself to render the rule imposed by decision relevant to our inquiry imposed by the decision relevant i think we're going to disagree on this point because it also says spencer does not cast the flag the agency's own published interpretation of that statute to help us decide what the statute means so i think it's incorporating both the statute and the it is the interpretation i just don't see that there is a distinction made the government making the government is not saying that the court would never turn to agency interpretation but first the court must turn to the an interpretation of that standard for visa revocation and so that's why in a they find jurisdiction to review that here we have the term national interest and if you look at the agency's decisions in matter of denis our which is the newer one it lays out the three part test and then its size if these elements are satisfied u s c s may approve the national interest waiver as a matter of discretion so these are eligibility criteria for the cases to be determining what the national interest is no we want the agency to determine it right so if there was no publishers you know what they did here right but here i mean if you want us to review it well what we really want is just the quite different the agency is the master of this task and ultimately if there are established criteria that are set forth then yes it is reviewable but only under these criteria i mean the court has done this look at this gonzales carvell case which is administer of closure which is discretionary but the court said that the board decision and matter about the cheezy and lays out these factors and if there's a failure to follow precedent then that is reviewable and so the agency sets the factors out all the court does is make sure the agency is following the law i do want to point out that the jew case a drug addresses spencer enterprises doesn't address in a in this analysis of using precedent and just cam and i did not get to your question on schneider i apologize schneider was a case of course involving a different part of the statute using mandatory language but snyder only in dicta states that this part is discretionary it doesn't address  spencer and the statutory hook and the precedent decision so it would not be binding on the court the key here is is the precedent in terms of precedent decision interpret ing national interest and what about sort of post and so to put we talked about earlier which was the unpublished pro se case where there's no mention of an a at all and there's no mention of nice thought and so again it's wrong it's well it's incomplete i mean it's incomplete right because ultimately the waiver is discretionary but parts of it it's just like cancellation of removal which the court had said originally it's a discretionary decision we can't review it it's exceptional and extremely unusual hardship that's up to the agency but the court carved out an exception for the review of a failure to follow precedent or for legal issues and that's what we're asking here we're not saying the entire thing is and is reviewable we're saying these legal issues that are limited are reviewable and i do want to point the court to other parts of the statute where there is no statutory hook so a good example of this is this stay of removal at twelve twenty seven d where i see my issue with stay for people who have been found to be victims of trafficking or of crimes and  be their removal may be stayed while the visa petition is pending there's no stay there there's no stay i'm sorry there's no standard there for the stay there's no standard for many other places in the eye and they were just the term may is used but there is no statutory hook it's true in the context of the fiance visa where there is a requirement that the parties may have to meet in person but that may be waived in the discretion of the secretary no standard there and there's more examples of that in the brief so there are situations where there is no statutory hook but this is one of those rare instances where they statute exactly meets the requirements in a in a we have the term a and we have a statutory hook there are good and sufficient cause and here  as they find out they acted they just did and that's all in the complaint there is no evidence in this case by the way because this was just a complaint so we never got to an evidentiary stage everything here was just a legend then dismissed under jurisdiction you agreed that even for regular meal there is a presumption of regular delivery it's a week presumption that's rebuttable i mean that is what's also lays out your honor and so how was that presumption rebutted just isn't enough just to say i didn't receive well that in the incentive right and so dr per scene act as soon as they find out of this is in the amended complaint he immediately moved to reconsider and act i mean they file all these endless documents trying to reconsideration and the u s c i s won't consider them at all so if he wasn't being diligent in his case that would be relevant but that's certainly not the case here and i see i am out of time if there is no limit in questions bankrate thank you your honor thank you to both of making their way forward i like to welcome and thank the students from drew high school who have joined us