Legal Case Summary

and up to speed and we're so happy she's a part of our courts. So welcome, Judge Crashinge. Okay, our first case of the afternoon, Shalom Pentecostal Church and Carlos Allen Carvus is acting secretary of the U.S. Department of Homeland Security Council. Thank you, Judge Rundal. May I please the court, Jeffrey Fony, for a balance, secretary, Department of Homeland Security. I request three minutes through the bottle. That's great. Thank you. I am received of the court's letter directed from the clerk's office to address two points related to this case. We just want to make sure you were alerted. They're not the only issues, but we just want to go inside. I'll be happy to answer any questions, but let me start with those two points specifically since they were brought to the attention of the parties. The church and Allen Carvus are both lack Article 3 standing for want of redressability. They seek an I-360 petition to employ Allen Car legally in the United States and, relatedly, so that he can adjust the status to being lawful permanent resident status here. Well, the day before he would get a visa such as this, he's removable, correct? He's currently removable, yes. If he gets a visa, is he then removable? Yes. Immediately? He has a visa in his hand, and they can send him out of the country

. Well, let me just clarify some terminology. The I-360, if approved, never grants a person status in the United States. That's clear, but is he can they send him out of the country? If he has that petition in his hand? The legally, yes. If, of course, he would be put into removal proceedings, and if the due course, immigration judge determined under the facts and circumstances, then the law that he was removable, that would be his. So you're saying the visa is a nullity? With respect to whether he has lawful status in the United States, yes. The effective party regulation referenced in the clerk's letter, HCFR103.3A1, has no bearing on this case regarding standing Article 3 or otherwise, and I respectfully request that direct the court's attention to consolidated, at HCFR13131.3A31475 on Federal Circuit. It addresses a basic point of administrative role that agencies are, of course, not bound by Article 3, and they may accept interveners, parties to appear before them in proceedings that may not be able to appear in Article 3 courts because of constitutional standing. But if you're applying it the other way, you want to say that he's not permitted. No, I'm just an answer relevant. Well, but does it really matter? Doesn't Shalom have standing? So under one-side versus four-unfrackonomic and institutional rights? This case is properly before us, correct? No, because of one to readjustability. There's nothing that the approved I-360 would give the church in this case. Absolutely nothing. You cannot employ that L. Allen Court legally. You cannot remain in the United States legally through a judgment status. He is statically precluded

. Just to be clear, it was the government that was pointing us to the regulation in various cases on standing administrative appeal. So is it your position at this point that those are not relevant for us to consider constitutional standing? With the regulations irrelevant for constitutional standing purposes, correct? But the injury would be addressed. In other words, he would get the visa if we rule that the regulations are all for viers. And he would, as a current dissent, he would not get the visa. So, aren't we, in effect, redressing his injury? No, because he seeks to be employed lawfully in the United States and relatedly to a justice status. He is statically precluded from receiving both the votes. Why isn't that the government recharacterizing the relief that he seeks? What they say they are seeking is the grant of the I-360 petition. So what is the authority for us to go beyond what they say they are asking for and look to the ultimate question of eligibility for a judgment of status rather than eligibility for the petition to be granted? The Immersion Nationality Act as a whole. It governs the entire process. It's a two-step process in this case. The I-360 is really one step, and even if they were granted an I-360 grant, legally, no benefit or right to the church or to Alancar. All right. I think we're talking a little about cost-proccesses here. We know your position, I think. Could you move on to the issue of the regulations and the ultravioletization? Regarding the relationship, the regulation to 1255K, this provision is essentially relevant for three reasons. At least with regard to the operation of this regulation. So you don't want to give it to a big use? It's just the wrong. Not 1255K, no

. The ambiguity stems from the INA-101-827, which is the Statue of Provision that creates the Special Immigrant and Religious Worker Program. And the term that is ambiguous in this case is carrying on. And also, well, first, it is not the finding statute, but we don't see the term to find anywhere in the definition section, which is INA-101 General. So how do you give me an example of a different way of defining thinking about looking at carrying on in this context? Well, what a big use about that phrase. Well, the only condition that Congress imposed in this program was a two-year temporal condition. Two years must be the alien must work for two years carrying on. Is there a occupation of vocation? Outside of that temporal limitation, there's no other condition said in the terms unclear. Is the alien required to work waffling in the United States? If in the United States are the required to be paid for carrying on their profession? And all this is left unclear. Well, but there's lots of things unclear. Are they supposed to wear uniform? Or is that carrying on? I mean, if it were that it's full-time employment, that would be one thing. But that's a necessary characteristic of carrying on how, carrying on how, as a full-time employment. But there's lots of things that aren't stated in terms of carrying on. How do you contend? Well, the other point I'd make is that carrying on is used in the framework of the statute twice, carrying on before, solely for the purpose of carrying on. So after you arrive, it's the purpose of carrying on, and in the past is carrying on. But you're supposed to addition, would really only relate to the has-been carrying on. How can we say that what you're suggesting applies to carrying on when it really doesn't work with both of the uses of carrying on? You understand what I'm saying? No, I'm sorry, I don't. Seeks to end with the United States solely for the purpose of carrying on. So that would be prospective, all right? Carrying on

. Certainly. Okay. Whereas has been carrying on. Now, you're purported, definite. My idea of full-time would work with both of those. For the purpose of carrying on full-time employment has been carrying on full-time employment. But your definition of an authorized legal status doesn't really work. Oh, it works completely. I'm glad you brought up this example because if we're talking in temporal terms, of course, the alien would intend to come to the United States to obtain the alpha status to carry on in the future, the occupation or vocation. But there's no, but you can't impose a requirement. That's not, you were not imposing a requirement for the future, are we? Certainly, they will require to carry on their vocation. They can't become the United States to work as a janitor. Right. Okay, but that has nothing to do with lawful or unlawful immigration status. Well, certainly, but I think my point and I believe your point as well is that there must be some kind of nexus to the terms of issue and statute. Exactly. And certainly having a lawful employment that the terms and conditions of your employment have to do with and relate to carrying on. But that has nothing to do with authorization from the immigration standpoint

. Well, certainly the first provision that your honor mentions does because the purpose of having I from 60 granted and approved is so that you can move to the final step to be employed lawfully in the United States. I don't get it by carrying on. I don't know what other definition of or meaning of carrying on could there be other than engaging in? What am I missing here? Carrying on such vocation, professional work or other work? What is ambiguous about carrying on? You focused on that and I don't get it. Well, none of the connotations of that term other than the temporal limitation of common-supplied or defined. They're left silent. Therefore, on the basic principles of administrative law and the Chevron, that's essentially delegated to the agency to figure out. So because there's no temporal deposition or refinement. Well, there is a temporal definition or refinement. But that's the only refinement that Congress provides. Okay. The two years. I'd like to get the governance you on whether the question of whether the regulation is rendering parts of 1255 case or purfluous. Is that something that we take a count of in the first part of our Chevron analysis or is that a part two construction consideration? Not both. It certainly goes to the ambiguity and that, my understanding is where the appellation of push the point. But the Congress knows how to say a canon as the DC Circuit has certainly read it is really a relevant in the context when Congress grants to administrative agency a program. It's expected that they're going to fill in any of the details. And if there is some overlap, it's simply of love to the agency to resolve. There's certainly no prohibition expressly stated in any of the statutory provisions that are relevant here or any other provision in the eye that I know of that would expressly preclude what the agency has done

. Is there actually a conflict or could you give us any scenario where the regulation requiring lawful workers to years would not be inconsistent with 1255K? Yes. First, just to make clear, 1255K in no way will save Alan Corners' case. He's worked far more than 180 days. So this statute would not save him in any sense. But more to your point, there can be several cases in which 1255K would still operate and the regulation would operate in conjunction with it. For example, any case where the Alan has less than 180 days of unauthorized work before or after the two years immediately proceeding the filing of the I-360. So let's suppose it was authorized work. What's it that an alien arrived in the United States as a visitor, for example, and worked for the church unlawfully for 50 days? And then it was granted some other status, like temporary protected status, for example, which entails employment authorization and proceeded to continue to work for the church under TPS in that status. That would be authorized status and could gain the two years of required employment being authorized to satisfy the regulation. And then if the 360 was approved, they could adjust status because they had only had unauthorized work for 50 days prior to the two years of gaining authorized work. And I see I'm not a time. But I'm going to give you another two minutes. The whole issue of the Congressional Directive in 2008 with respect to fraud, that really was directed at sub two and sub three of this provision, not having to do with the minister provision. And how does that fraud relate to immigration status as compared to relating to people's representation of their prior work experience, et cetera? How can you say that that directed from Congress justifies the imposition here? I could have been more clear in the briefs and I do apologize, but we do need to look at the agency's justification. And that did appear explicitly at 72 Federal Register 20447-48. That was the preamble to be noticed for post-reumaking. But it says nothing about immigration status. It's really directed to the representations regarding work experience, position, et cetera

. Exactly. So there are two justifications. One is to mitigate and prevent fraud under this Congressional Directive. But secondly, it was an evidentiary rule. It was a bright line rule that was laid down for ease of administration. In other words, if a person in the United States is employed legally in accordance with work authorization, they will likely have documentation that will readily evidence their work in the vocation occupation, for example tax filings or i9 documents that are also required by separate provision of the statute. So that those documents will be readily available because the person had gained their experience through authorized work. That allows for the agency to easily confirm that that work authorization. But ease of administration can't trump the intent of the statute. A lot of things could say, okay, we're going to make this easy. And categorically, you know, impose a requirement that then doesn't have a real rationale. Right. And here the fraud doesn't seem to have a real rationale. How does it? Well, it's interesting that you're on our mentioned that because my understanding is that the Pellies have never had any one point challenged procedurally this rule. They've never said that the agency hasn't propered a proper justification such that it would be violated. Some young line principles that the agency must engage in reaching the reason decision making rather than. We just a step two though, figuring out whether it's arbitrary. Right

. That's where we are. Well, in your honest correct, you'll have to focus on the statute at that point. As far as the agency's rationales concerned, I mean, now we have to go what a little reason decision making. But they still asking about the fraud aspect. How are you saying that this is reasonably related to the fraud issue? This issue of, okay, you have to have been here in lawful immigration status for two years. Well, it's a reconciles and takes into account relevant provisions of the INA Congress has had an underlying set forth an underlying principle in the INA that there should not be unauthorized work in the United States period. There is the immigration form and control act in 1986 set forward that paradigm. But as to the special, as to special immigration religious workers in, for 55K, they specifically contemplate an exception to that. So how particularly with the, this act that applied only to subsections two and three, how can you argue that that justifies application to subsection one? Well, I'm not so sure that the congressional qualification is so far reaching, as your honest suggests, if we look at 1255K to introductory clause reads, an INA was eligible to receive immigrant visa under paragraphs, ellipsis and so forth. In other words, Congress had an introductory provision that said that the agency would make independent convictions and qualifications about the adjudication of immigrant visa petitions. Before we even get to the second step of adjustment of status, which is the limitation of 255K, it concerns adjustment of status, not the adjudication of immigrant visa petitions. It was just what is an issue here. But if the aliens are not eligible for adjustment of change of status under 255K as a result of unauthorized work, why would 255K go on to talk about a cap of 180 days on the unauthorized work? If the aliens are mounted the first step in process, and then could still qualify under 245A with the saving clause under 245K, then the alien would adjust status. Which assume they engage in unauthorized work and that that did not preclude their eligibility for adjustment of status. And there are cases which I've mentioned where aliens would qualify under 245K would benefit from that provision. If the unauthorized work was less than 180 days and took place before the two years that's mentioned in 101A27. If we don't find the ambiguity that usually persists in the statute, what does that leave you? Well, obviously it's a court determined that the statute is unambiguous and in your reading the statute, the lack of ambiguity necessitates the reading that the appellees venture in this case, then obviously the step one settles the issue. But obviously if the government has maintained that there's just, we don't read that there is a clear determination here carrying on is not defined

. There's certainly no common law, a subtle common law understanding the term that the appellees can point to. And under subtle principles of the Ministry of Law, for example, first publishing Supreme Court said back in the 40s, if there's no common law that's not a reading, the attaches to statutory term and the statute is medallinated to an agency, expected the agency would work that out. So what then would be the remedy? In other words, other than the two years of lawful employment from the government's perspective, is there any other criterion that an own card hasn't satisfied so that when we move on to the agency, would be appropriate as we held in soltene rather than simply affirming or I'm seeing below. Okay. I'm not sure I understand the question. Your Honours asking about the appropriate remedy if you were to find agency error? Would we simply be affirming or is there any reason to be remanding for further consideration, for example, for their investigation or consideration of other criteria for eligibility for the I-360 position? Well, if the court finds that the regulation is ultra-vary, that would necessarily be a remand to act in accordance with the court's legal determination, it's interesting in this case, that under no set of circumstances can now record benefit from the court's ruling because by the statute, he can't adjust status because he's been unauthorized employment from more than 180 days and he has never maintained lawful minimum status. So both of those conditions, now I haven't been fulfilled, he has precluded from the adjustment from the adjustment. All right. Thank you. We'll give him a number of them. May I please the court, Mr. Forning? My name is William Stock. I represent Schillman and a Costal Church as well as Pastor of Colisell and Carr. I'm representing both Pastor Allen Carr and the church, so I would ask that I have about four minutes to address the standing issue for Pastor Allen Carr and say the name of my time to address the other issues that are available. Thank you, wish. Thank you, Your Honor. With respect to the standing issue, we know first that the government had waived the prudential standing issue under the APA and it really the only issue is the constitutional standing issue. And this goes to a broader question of when and whether beneficiaries of immigrant visa petitions can come into court when they believe that the agency has revoked that petition in some way that would harm them

. Perhaps outside of the question of adjustment of status for on the basis of that particular immigrant visa petition. Well, he's to not been denied his petition. Correct. And automatically if we if we affirm he would be granted his petition and that goes a little bit to Judge Krass's question of the next step. Because the only reason he was denied was this regulation he would then be granted the petition is accurate. It wouldn't be our manicuron because it would be a second proceeding under Section 245, as Mr. Foray pointed out, if it was in a removal proceeding, that application would be a form of relief from the removal. So that if the immigration judge were to grant it on the basis of the petition, he would be allowed to remain. Okay. But if the immigration judge didn't grant it. But even the opportunity to apply is for closed. Once there's no immigrant visa petition on which to base the Section 245 adjustment. And you're saying in response to my question yesterday he didn't have the visa. He's removable. Today he does have the visa. He's removable but now has an application for relief from removal. Has the opportunity to be. Potentially not exactly. And so the potential benefit answers the redressability issue? I believe so, Your Honor, because without the opportunity even to apply, one never can apply. And if I may, the government's argument proves a bit too much. If we think of the list of, I know right after us, is a proceeding that is a review of a removal order. And under Section 1252, the Section 245 question is not even re-reviewable before this court. Right? So there are, there are steps, I mean the government could come in under their argument. Any time an immigrant visa petition was denied and say, well, Your Honor, it's discretionary whether we ever grant Step 2. So don't bother yourself with Step 1 because under, you know, we'll just come back in here under Section 1252 and say it's a discretionary decision that Your Honor can't review. And it strikes me that that's proving that the government could act arbitrarily at Step 1 just because under Section 1252. So Step 2, kind of, is this even fit to insulate their decision from review? I thought his position was, I'm sorry, I thought his position was slightly different in negating this understood. I thought it was that at the next step he couldn't get redress, he was precluded and that because it was precluded, that's why whatever happened that this stage didn't satisfy the redressability factor of standard. That certainly is his position and I would submit that in 383 pages of administrative record that relates to the I-360 that the government produced as its basis for their decision in this case. But it's precisely two paragraphs on one page which are the factual basis for the assertions Mr. Forning is making today. I'm not prepared to litigate a Section 245 application for Pastor Allen Par that's not before this court, not before the service. And again, it is really, you know, the opportunity to get to Step 2 is all we're seeking. So, so you do not concede then that he is ineligible for adjustment of status today? Correct, Your Honor. I would say that there are many provisions and ways and the meet you pointed some of the ways out that Pastor Allen Par may be ultimately able to redress his status in the United States. Both through administrative actions of various kinds as well as through these application overseas

. And so the potential benefit answers the redressability issue? I believe so, Your Honor, because without the opportunity even to apply, one never can apply. And if I may, the government's argument proves a bit too much. If we think of the list of, I know right after us, is a proceeding that is a review of a removal order. And under Section 1252, the Section 245 question is not even re-reviewable before this court. Right? So there are, there are steps, I mean the government could come in under their argument. Any time an immigrant visa petition was denied and say, well, Your Honor, it's discretionary whether we ever grant Step 2. So don't bother yourself with Step 1 because under, you know, we'll just come back in here under Section 1252 and say it's a discretionary decision that Your Honor can't review. And it strikes me that that's proving that the government could act arbitrarily at Step 1 just because under Section 1252. So Step 2, kind of, is this even fit to insulate their decision from review? I thought his position was, I'm sorry, I thought his position was slightly different in negating this understood. I thought it was that at the next step he couldn't get redress, he was precluded and that because it was precluded, that's why whatever happened that this stage didn't satisfy the redressability factor of standard. That certainly is his position and I would submit that in 383 pages of administrative record that relates to the I-360 that the government produced as its basis for their decision in this case. But it's precisely two paragraphs on one page which are the factual basis for the assertions Mr. Forning is making today. I'm not prepared to litigate a Section 245 application for Pastor Allen Par that's not before this court, not before the service. And again, it is really, you know, the opportunity to get to Step 2 is all we're seeking. So, so you do not concede then that he is ineligible for adjustment of status today? Correct, Your Honor. I would say that there are many provisions and ways and the meet you pointed some of the ways out that Pastor Allen Par may be ultimately able to redress his status in the United States. Both through administrative actions of various kinds as well as through these application overseas. Mr. Forning's brief would argue on that point that well, certainly it's true he could go overseas but he would have to be out for 10 years and the church might go away and he might stop being a pastor and there are lots of contingencies but I would argue there are lots of contingencies on the positive side as well. Applications that he could make for relief that would allow him to ultimately proceed with a Section 245 adjustment, either before the service or before an immigration judge. I wasn't totally convinced by the argument that the two-year prohibition is necessarily inconsistent with the 180 days. But we sent you a letter requiring us to the lead in to the adjustment of status provision. Do you believe that that lead in is is applicable such that it's notwithstanding this anything contained in or notwithstanding his unauthorized status on the second. Section 245A provides that certain people may apply for adjustment of status. Section 242C7 says that certain of those people are then precluded from adjustment of status on authorized employment and failure to maintain status. And Section 245K makes an exception to the exception, stating that it doesn't apply. So yes, and our point would be that given that whole statutory scheme, it was inconsistent for the government to come out with a regulation which if a pastor came into the United States began serving his or her church and was then later adjusted or changed at a temporary status, for example, finished the two years within a lawful status. That even though Section 245K would allow that pastor to have adjusted status if there wasn't approved visa petition, the service is essentially writing Section 245K out of the statute for that person by saying, well, we never get you to Section 245A because we've denied you visa petition. But they've also identified scenarios where the two would not be inconsistent. Certainly, that's true, but we believe that as we're making a facial challenge here, the government would have to show that there was sort of any circumstance that there's no circumstance where it would be appropriate to grant the 360 but deny the 245. There certainly may be many of those kinds of circumstances that the pastor could be a criminal, the pastor could have suspected terrorism title or 40 different grounds of inadmissibility to the United States, none of which are adjudicated at the petition stage, whether it's an immigrant petition for a religious worker, another worker, a family member, etc. The government has, seems to concede at least in its briefs, that there is the opportunity for adjustment of status or order apply for immigration visa 10 years down the road. So I recognize that you think there are other scenarios such as ambiguity raised that may apply, but just as to these 10 years, if all we're working with is the opportunity to apply 10 years from now, would that for redressability for constitutional standing purposes be sufficient in your view? I believe it would, there are visa petitions in the family system, for example, where a conservative estimate is that it will take 20 to 30 years, 70 years for some nationalities for those visa petitions to be able to sort of come to the front of the line and be eligible to immigrate. In the immigration system, people are willing to wait very long times for the opportunity to come to the United States. So at the time frames, I have for brother and sister petitions under the family-based system, the brother or sister of a U

. Mr. Forning's brief would argue on that point that well, certainly it's true he could go overseas but he would have to be out for 10 years and the church might go away and he might stop being a pastor and there are lots of contingencies but I would argue there are lots of contingencies on the positive side as well. Applications that he could make for relief that would allow him to ultimately proceed with a Section 245 adjustment, either before the service or before an immigration judge. I wasn't totally convinced by the argument that the two-year prohibition is necessarily inconsistent with the 180 days. But we sent you a letter requiring us to the lead in to the adjustment of status provision. Do you believe that that lead in is is applicable such that it's notwithstanding this anything contained in or notwithstanding his unauthorized status on the second. Section 245A provides that certain people may apply for adjustment of status. Section 242C7 says that certain of those people are then precluded from adjustment of status on authorized employment and failure to maintain status. And Section 245K makes an exception to the exception, stating that it doesn't apply. So yes, and our point would be that given that whole statutory scheme, it was inconsistent for the government to come out with a regulation which if a pastor came into the United States began serving his or her church and was then later adjusted or changed at a temporary status, for example, finished the two years within a lawful status. That even though Section 245K would allow that pastor to have adjusted status if there wasn't approved visa petition, the service is essentially writing Section 245K out of the statute for that person by saying, well, we never get you to Section 245A because we've denied you visa petition. But they've also identified scenarios where the two would not be inconsistent. Certainly, that's true, but we believe that as we're making a facial challenge here, the government would have to show that there was sort of any circumstance that there's no circumstance where it would be appropriate to grant the 360 but deny the 245. There certainly may be many of those kinds of circumstances that the pastor could be a criminal, the pastor could have suspected terrorism title or 40 different grounds of inadmissibility to the United States, none of which are adjudicated at the petition stage, whether it's an immigrant petition for a religious worker, another worker, a family member, etc. The government has, seems to concede at least in its briefs, that there is the opportunity for adjustment of status or order apply for immigration visa 10 years down the road. So I recognize that you think there are other scenarios such as ambiguity raised that may apply, but just as to these 10 years, if all we're working with is the opportunity to apply 10 years from now, would that for redressability for constitutional standing purposes be sufficient in your view? I believe it would, there are visa petitions in the family system, for example, where a conservative estimate is that it will take 20 to 30 years, 70 years for some nationalities for those visa petitions to be able to sort of come to the front of the line and be eligible to immigrate. In the immigration system, people are willing to wait very long times for the opportunity to come to the United States. So at the time frames, I have for brother and sister petitions under the family-based system, the brother or sister of a U.S. citizen may have to wait 20 or 30 years for the opportunity to come into the United States. If the brother or sister is of a Mexican national, it may be closer to 70 years. All right, I want to address the Chevron. Certainly, Your Honor. Our position is that carrying on is an unambiguous term, specifically as it relates to carrying on of a religious vocation. That Congress chose those words because the word employment doesn't necessarily apply to a Buddhist monk or a Catholic nun who may not receive a compensation for his or her services. It is interesting that there is in fact no statutory definition of carrying on, but there is also a definition section that is specific to this religious work of permutant. It's in section 204.5M5. That provision does not have a definition of carrying on. So it strikes me that if a government's position is that this is an unambiguous phrase, they might have taken the trouble to at least set forth what their interpretation of carrying on was. Well, except in the case of, we've talked about appropriate agencies. It wasn't a definition of appropriate agencies either. I mean, I don't know that that is. I believe it certainly relates to the fact that, as I believe from the question again, and as our position is, that carrying on is a straightforward term. That it isn't susceptible to alternative meetings and that indeed to take carrying on and stretch it to say that because Congress put in a temporal limitation of two years, Congress knew how to say that they wanted limitations on that carrying on. They said they wanted it to be carrying on for two years

.S. citizen may have to wait 20 or 30 years for the opportunity to come into the United States. If the brother or sister is of a Mexican national, it may be closer to 70 years. All right, I want to address the Chevron. Certainly, Your Honor. Our position is that carrying on is an unambiguous term, specifically as it relates to carrying on of a religious vocation. That Congress chose those words because the word employment doesn't necessarily apply to a Buddhist monk or a Catholic nun who may not receive a compensation for his or her services. It is interesting that there is in fact no statutory definition of carrying on, but there is also a definition section that is specific to this religious work of permutant. It's in section 204.5M5. That provision does not have a definition of carrying on. So it strikes me that if a government's position is that this is an unambiguous phrase, they might have taken the trouble to at least set forth what their interpretation of carrying on was. Well, except in the case of, we've talked about appropriate agencies. It wasn't a definition of appropriate agencies either. I mean, I don't know that that is. I believe it certainly relates to the fact that, as I believe from the question again, and as our position is, that carrying on is a straightforward term. That it isn't susceptible to alternative meetings and that indeed to take carrying on and stretch it to say that because Congress put in a temporal limitation of two years, Congress knew how to say that they wanted limitations on that carrying on. They said they wanted it to be carrying on for two years. They didn't say carrying on for two years in the United States. They didn't say carrying on for two years in a particular religious position. I think that a Congress assumed that the phrase carrying on was, in fact, straightforward when applied to the idea of how one is a religious worker. What if the regulation required full time employment? The regulation does require employment in access of 35 hours per week. I would argue, and it's not before the Court of the point, that that is an open question is to whether the entire structure of this regulation, which was written in order to allegedly combat fraud, may not be susceptible to further challenges. In the case where the government argued that a Catholic known or a Buddhist monk was not employed on a full-time basis because he or she did not have pastubs and W-2s and tax filings. I'd go back to Judge Friendell's question to the government about the first use of carrying on. The statute applies to special ingrents who seek to enter the U.S. solely for the purpose of carrying on this vocation. And then the provision that said, as you hear, is referring back to the carrying on of such vocation. Correct. So isn't it the case that when we read what Congress was initially authorizing people to come and seeking to carry on that vocation that Congress, we all understand what Congress intended at that point was for people to come and seek to work lawfully in that vocation? Correct. The visa petition would be the basis for status that allows the person to work without restriction for the religious domination, perhaps a different religious denomination, perhaps even eventually to change occupations entirely. So why, then, if we agree that that is the plain reading of the first reference to carrying on of the vocation, when we have the second reference back to such vocation, why aren't we, as a matter of just plain reading of the statute, also importing the word in there the understanding that it's lawful? I would agree. I believe the statutory assumption is that after the grant of a permanent resident status, all employment in the United States is, by definition, lawful because lawful permanent residence is defined as the ability to live and work in the United States until that status is taken away. But I would agree that Congress may not have felt the need to expressly say they have said you have to be coming to be a permanent resident in order to carry on the religious vocation. And so to say then separately that you have to still be authorized to its redundant

. They didn't say carrying on for two years in the United States. They didn't say carrying on for two years in a particular religious position. I think that a Congress assumed that the phrase carrying on was, in fact, straightforward when applied to the idea of how one is a religious worker. What if the regulation required full time employment? The regulation does require employment in access of 35 hours per week. I would argue, and it's not before the Court of the point, that that is an open question is to whether the entire structure of this regulation, which was written in order to allegedly combat fraud, may not be susceptible to further challenges. In the case where the government argued that a Catholic known or a Buddhist monk was not employed on a full-time basis because he or she did not have pastubs and W-2s and tax filings. I'd go back to Judge Friendell's question to the government about the first use of carrying on. The statute applies to special ingrents who seek to enter the U.S. solely for the purpose of carrying on this vocation. And then the provision that said, as you hear, is referring back to the carrying on of such vocation. Correct. So isn't it the case that when we read what Congress was initially authorizing people to come and seeking to carry on that vocation that Congress, we all understand what Congress intended at that point was for people to come and seek to work lawfully in that vocation? Correct. The visa petition would be the basis for status that allows the person to work without restriction for the religious domination, perhaps a different religious denomination, perhaps even eventually to change occupations entirely. So why, then, if we agree that that is the plain reading of the first reference to carrying on of the vocation, when we have the second reference back to such vocation, why aren't we, as a matter of just plain reading of the statute, also importing the word in there the understanding that it's lawful? I would agree. I believe the statutory assumption is that after the grant of a permanent resident status, all employment in the United States is, by definition, lawful because lawful permanent residence is defined as the ability to live and work in the United States until that status is taken away. But I would agree that Congress may not have felt the need to expressly say they have said you have to be coming to be a permanent resident in order to carry on the religious vocation. And so to say then separately that you have to still be authorized to its redundant. At that point, you've become a permanent resident, so you are authorized to carry that on. But why is the reference back then to the carrying on of such vocation? Why doesn't that include the concept of lawful work? Because the such vocation is due to the structure of A27C that coming to the U.S. to continue carrying on, refers to both subpart 1, subpart 2, and subpart 3. And so rather than enumerate three separate times that the requirement would be to have been doing either ministerial work or professional work or vocation work for those two prior years, Congress just said carrying on such religious work, meaning that a minister must be coming to be a minister. A professional must be coming to be a professional and another worker must be coming to be another worker. For example, a pastor Allen Car had two years as a pastor and wanted to come to be a religious broadcaster as one of the examples in the regulations. He would need two years as a religious broadcaster to qualify to be a religious broadcaster. So the reference to carrying on such vocation is meant to enact that idea that we want people to have been a pastor if they are immigrating solely to be a pastor. But not to include the concept of lawful work that you agree is an inherent in the first use of the two. Correct. I think the statute says nothing about a requirement that those for those two years be in lawful immigration status or that they be entirely in lawful immigration status. What if we get to step two of Chevron? I think then that that's where section 245K and the ability, the government's position that there's this absolute restriction on the ability to work in the United States and then get other relief under the Immigration National EEC is misplaced. There are exceptions to that rule that are throughout the statute. And so those considerations have never been seen as part of the visa petition process. They've always been seen under eligibility for changes or adjustment of status rather than the visa petition itself. Why is our consideration of 1255K limited to part two? It isn't the law of the circuit under Batista and pressed all that we consider all of the traditional tools of construction. And that's been applied in a fairly broad way

. At that point, you've become a permanent resident, so you are authorized to carry that on. But why is the reference back then to the carrying on of such vocation? Why doesn't that include the concept of lawful work? Because the such vocation is due to the structure of A27C that coming to the U.S. to continue carrying on, refers to both subpart 1, subpart 2, and subpart 3. And so rather than enumerate three separate times that the requirement would be to have been doing either ministerial work or professional work or vocation work for those two prior years, Congress just said carrying on such religious work, meaning that a minister must be coming to be a minister. A professional must be coming to be a professional and another worker must be coming to be another worker. For example, a pastor Allen Car had two years as a pastor and wanted to come to be a religious broadcaster as one of the examples in the regulations. He would need two years as a religious broadcaster to qualify to be a religious broadcaster. So the reference to carrying on such vocation is meant to enact that idea that we want people to have been a pastor if they are immigrating solely to be a pastor. But not to include the concept of lawful work that you agree is an inherent in the first use of the two. Correct. I think the statute says nothing about a requirement that those for those two years be in lawful immigration status or that they be entirely in lawful immigration status. What if we get to step two of Chevron? I think then that that's where section 245K and the ability, the government's position that there's this absolute restriction on the ability to work in the United States and then get other relief under the Immigration National EEC is misplaced. There are exceptions to that rule that are throughout the statute. And so those considerations have never been seen as part of the visa petition process. They've always been seen under eligibility for changes or adjustment of status rather than the visa petition itself. Why is our consideration of 1255K limited to part two? It isn't the law of the circuit under Batista and pressed all that we consider all of the traditional tools of construction. And that's been applied in a fairly broad way. That would certainly be our position, Your Honor, that we would consider the existence of sections 245K and this ability to adjust status in spite of minor violations of status in these specific employment based categories only. That that must be taken into account when we're adjudicating a visa petition and a regulation which seeks to limit the ability to adjust status on the basis of that very same employment based status. That was the subject of section 245K, 1255K. In other words, in part one of Chevron. In other words, in part one of Chevron, that it makes it clear that the two years had nothing to do with welfare status inside outside the U.S. Thank you very much, Your Honor. All right, thank you. Mr. Forning, you reserve a bottle of time. Thank you, Judge Rundell. Just three brief points on the rebuttal. Our first very briefly, provincial standing, I don't think that can be waived. The district court did address the issue and after Lexmark, as Justice Scalia said, there's a lot of known culture issues in this arena. But after Lexmark, it's no longer known as provincial standing. So any assumptions how it can be waived, I think, for, by the way, side, it really should be called statutory standing or zone of interest standing. But in any event, the inquiry is the same, whether or not Congress intended to establish a cause of action under the statute for the appellees, for example, in this case, and we've already got point of brief. So I don't need the later point

. That would certainly be our position, Your Honor, that we would consider the existence of sections 245K and this ability to adjust status in spite of minor violations of status in these specific employment based categories only. That that must be taken into account when we're adjudicating a visa petition and a regulation which seeks to limit the ability to adjust status on the basis of that very same employment based status. That was the subject of section 245K, 1255K. In other words, in part one of Chevron. In other words, in part one of Chevron, that it makes it clear that the two years had nothing to do with welfare status inside outside the U.S. Thank you very much, Your Honor. All right, thank you. Mr. Forning, you reserve a bottle of time. Thank you, Judge Rundell. Just three brief points on the rebuttal. Our first very briefly, provincial standing, I don't think that can be waived. The district court did address the issue and after Lexmark, as Justice Scalia said, there's a lot of known culture issues in this arena. But after Lexmark, it's no longer known as provincial standing. So any assumptions how it can be waived, I think, for, by the way, side, it really should be called statutory standing or zone of interest standing. But in any event, the inquiry is the same, whether or not Congress intended to establish a cause of action under the statute for the appellees, for example, in this case, and we've already got point of brief. So I don't need the later point. Second. Good. Second. Secondly, regarding the availability of an immigrant visa overseas, I think Clapper, a recent Supreme Court case, really, dresses that issue. When you have a highly attenuated chain of contingencies that could break down at any one point, that does not establish Article 3 standing. And given the fact that this individual would need to wait 10 years upon their departure from the United States, giving yet an immigrant visa, anything could break down at that point in time. And it's just not the type of situation that is sufficient for Article 3 standing. Is section 10 of the APA important to our standing and the else? The judicial review provision. In other words, codified at 5GSC 706. I just want to make sure I'm talking to the right provisions. I haven't actually looked at the original APA in a while. But I think your honor means the judicial review provisions. The DC Circuit certainly has incorporated the arbitrary, capricious standard under 706A2 into the second part of the Chevron Analysis. And I think that analysis, given some hints from the Supreme Court recently, is probably correct. It's the same very lenient standard. It's just simply whether the agency's decision-making is reasonable. It doesn't need to be the best reading the statute and the court can even disagree with it. It just simply needs to be reasonable

. Second. Good. Second. Secondly, regarding the availability of an immigrant visa overseas, I think Clapper, a recent Supreme Court case, really, dresses that issue. When you have a highly attenuated chain of contingencies that could break down at any one point, that does not establish Article 3 standing. And given the fact that this individual would need to wait 10 years upon their departure from the United States, giving yet an immigrant visa, anything could break down at that point in time. And it's just not the type of situation that is sufficient for Article 3 standing. Is section 10 of the APA important to our standing and the else? The judicial review provision. In other words, codified at 5GSC 706. I just want to make sure I'm talking to the right provisions. I haven't actually looked at the original APA in a while. But I think your honor means the judicial review provisions. The DC Circuit certainly has incorporated the arbitrary, capricious standard under 706A2 into the second part of the Chevron Analysis. And I think that analysis, given some hints from the Supreme Court recently, is probably correct. It's the same very lenient standard. It's just simply whether the agency's decision-making is reasonable. It doesn't need to be the best reading the statute and the court can even disagree with it. It just simply needs to be reasonable. The last point, the only real argument that the appellees have in this case is that Congress knows how to set or Congress set up a condition. And when they set up one condition, all other conditions are precluded. That is not any principle of an Israel ball. And I know of it certainly in the DC Circuit, which here is many of these types of agency challenges and confronts statutory interpretation and agency programs. They've rejected that paradigm completely. And we've cited those cases in our briefs, the city of Barnes, Stable and Caterer-Bah County, an EPA case where the exact situation is not in the case of an agency. The situation arose. Very similar situation arose on the statute as we have here where there was a condition in one part not mentioned in another. And the agency was free to borrow the condition from an unrelated section of the statute. But I think their main point was that carrying on is not ambiguous. Well, that's really is the main point because we're pretty confronted with an agency's allegation that we have an ambiguous statute. The party is most often loose because the court owes deference to the agency at the second step. So of course they'll recur to just a chevron step one. That's the strongest part of that case. But unfortunately, I haven't been able to point to anything in the statute that shows that the term at issue is defined or that's resolved in any settled manner whatsoever that would resolve the issue at step one. And you're saying that that breeds ambiguity. The fact that it doesn't have a settled meaning? Well, I'm referring back to the earlier point I made and just to be more clear, if there's no settled common law meaning, for example, in the first publication case that I mentioned, the Supreme Court said, well, under the National Labor Relations Act, for example, it could be that the term employment has a settled common law meaning and under certain circumstances, that meaning may be in-person on the agency. But it did happen so happening that case that they rejected the settled common law meaning because of other indicators in the statute that it was expected that the agency would develop a changing definition that would address facts and circumstances through the administration program

. The last point, the only real argument that the appellees have in this case is that Congress knows how to set or Congress set up a condition. And when they set up one condition, all other conditions are precluded. That is not any principle of an Israel ball. And I know of it certainly in the DC Circuit, which here is many of these types of agency challenges and confronts statutory interpretation and agency programs. They've rejected that paradigm completely. And we've cited those cases in our briefs, the city of Barnes, Stable and Caterer-Bah County, an EPA case where the exact situation is not in the case of an agency. The situation arose. Very similar situation arose on the statute as we have here where there was a condition in one part not mentioned in another. And the agency was free to borrow the condition from an unrelated section of the statute. But I think their main point was that carrying on is not ambiguous. Well, that's really is the main point because we're pretty confronted with an agency's allegation that we have an ambiguous statute. The party is most often loose because the court owes deference to the agency at the second step. So of course they'll recur to just a chevron step one. That's the strongest part of that case. But unfortunately, I haven't been able to point to anything in the statute that shows that the term at issue is defined or that's resolved in any settled manner whatsoever that would resolve the issue at step one. And you're saying that that breeds ambiguity. The fact that it doesn't have a settled meaning? Well, I'm referring back to the earlier point I made and just to be more clear, if there's no settled common law meaning, for example, in the first publication case that I mentioned, the Supreme Court said, well, under the National Labor Relations Act, for example, it could be that the term employment has a settled common law meaning and under certain circumstances, that meaning may be in-person on the agency. But it did happen so happening that case that they rejected the settled common law meaning because of other indicators in the statute that it was expected that the agency would develop a changing definition that would address facts and circumstances through the administration program. What about your colleague's argument that the fact that there is no definition in the regulations should in order to a detriment? But the inquiry under chevron is how the statute reads. Regulations are all went. Do you notice for the questions? Yes, I know just a couple. Does the government dispute that Alan Carr seeks to enter the U.S. solely for purposes of carrying on the location of the Minister? Well, I have no position on that matter because it was an litigation. So, and I don't believe it was actually addressed in the agency's final decision. So, I certainly can't open that because of the chainery doctrine. You know, that would be an ad hoc rationalization at this point. But I think that perhaps goes John's earlier question about the relief. It would need to be reminded back to the agency because they would need to address other factors under unrelated sections of the regulation. Alan Carr may be denied on other grounds. Thank you. Thank you. Thank you. Thank you. Good cases will argue we'll take another advice.

and up to speed and we're so happy she's a part of our courts. So welcome, Judge Crashinge. Okay, our first case of the afternoon, Shalom Pentecostal Church and Carlos Allen Carvus is acting secretary of the U.S. Department of Homeland Security Council. Thank you, Judge Rundal. May I please the court, Jeffrey Fony, for a balance, secretary, Department of Homeland Security. I request three minutes through the bottle. That's great. Thank you. I am received of the court's letter directed from the clerk's office to address two points related to this case. We just want to make sure you were alerted. They're not the only issues, but we just want to go inside. I'll be happy to answer any questions, but let me start with those two points specifically since they were brought to the attention of the parties. The church and Allen Carvus are both lack Article 3 standing for want of redressability. They seek an I-360 petition to employ Allen Car legally in the United States and, relatedly, so that he can adjust the status to being lawful permanent resident status here. Well, the day before he would get a visa such as this, he's removable, correct? He's currently removable, yes. If he gets a visa, is he then removable? Yes. Immediately? He has a visa in his hand, and they can send him out of the country. Well, let me just clarify some terminology. The I-360, if approved, never grants a person status in the United States. That's clear, but is he can they send him out of the country? If he has that petition in his hand? The legally, yes. If, of course, he would be put into removal proceedings, and if the due course, immigration judge determined under the facts and circumstances, then the law that he was removable, that would be his. So you're saying the visa is a nullity? With respect to whether he has lawful status in the United States, yes. The effective party regulation referenced in the clerk's letter, HCFR103.3A1, has no bearing on this case regarding standing Article 3 or otherwise, and I respectfully request that direct the court's attention to consolidated, at HCFR13131.3A31475 on Federal Circuit. It addresses a basic point of administrative role that agencies are, of course, not bound by Article 3, and they may accept interveners, parties to appear before them in proceedings that may not be able to appear in Article 3 courts because of constitutional standing. But if you're applying it the other way, you want to say that he's not permitted. No, I'm just an answer relevant. Well, but does it really matter? Doesn't Shalom have standing? So under one-side versus four-unfrackonomic and institutional rights? This case is properly before us, correct? No, because of one to readjustability. There's nothing that the approved I-360 would give the church in this case. Absolutely nothing. You cannot employ that L. Allen Court legally. You cannot remain in the United States legally through a judgment status. He is statically precluded. Just to be clear, it was the government that was pointing us to the regulation in various cases on standing administrative appeal. So is it your position at this point that those are not relevant for us to consider constitutional standing? With the regulations irrelevant for constitutional standing purposes, correct? But the injury would be addressed. In other words, he would get the visa if we rule that the regulations are all for viers. And he would, as a current dissent, he would not get the visa. So, aren't we, in effect, redressing his injury? No, because he seeks to be employed lawfully in the United States and relatedly to a justice status. He is statically precluded from receiving both the votes. Why isn't that the government recharacterizing the relief that he seeks? What they say they are seeking is the grant of the I-360 petition. So what is the authority for us to go beyond what they say they are asking for and look to the ultimate question of eligibility for a judgment of status rather than eligibility for the petition to be granted? The Immersion Nationality Act as a whole. It governs the entire process. It's a two-step process in this case. The I-360 is really one step, and even if they were granted an I-360 grant, legally, no benefit or right to the church or to Alancar. All right. I think we're talking a little about cost-proccesses here. We know your position, I think. Could you move on to the issue of the regulations and the ultravioletization? Regarding the relationship, the regulation to 1255K, this provision is essentially relevant for three reasons. At least with regard to the operation of this regulation. So you don't want to give it to a big use? It's just the wrong. Not 1255K, no. The ambiguity stems from the INA-101-827, which is the Statue of Provision that creates the Special Immigrant and Religious Worker Program. And the term that is ambiguous in this case is carrying on. And also, well, first, it is not the finding statute, but we don't see the term to find anywhere in the definition section, which is INA-101 General. So how do you give me an example of a different way of defining thinking about looking at carrying on in this context? Well, what a big use about that phrase. Well, the only condition that Congress imposed in this program was a two-year temporal condition. Two years must be the alien must work for two years carrying on. Is there a occupation of vocation? Outside of that temporal limitation, there's no other condition said in the terms unclear. Is the alien required to work waffling in the United States? If in the United States are the required to be paid for carrying on their profession? And all this is left unclear. Well, but there's lots of things unclear. Are they supposed to wear uniform? Or is that carrying on? I mean, if it were that it's full-time employment, that would be one thing. But that's a necessary characteristic of carrying on how, carrying on how, as a full-time employment. But there's lots of things that aren't stated in terms of carrying on. How do you contend? Well, the other point I'd make is that carrying on is used in the framework of the statute twice, carrying on before, solely for the purpose of carrying on. So after you arrive, it's the purpose of carrying on, and in the past is carrying on. But you're supposed to addition, would really only relate to the has-been carrying on. How can we say that what you're suggesting applies to carrying on when it really doesn't work with both of the uses of carrying on? You understand what I'm saying? No, I'm sorry, I don't. Seeks to end with the United States solely for the purpose of carrying on. So that would be prospective, all right? Carrying on. Certainly. Okay. Whereas has been carrying on. Now, you're purported, definite. My idea of full-time would work with both of those. For the purpose of carrying on full-time employment has been carrying on full-time employment. But your definition of an authorized legal status doesn't really work. Oh, it works completely. I'm glad you brought up this example because if we're talking in temporal terms, of course, the alien would intend to come to the United States to obtain the alpha status to carry on in the future, the occupation or vocation. But there's no, but you can't impose a requirement. That's not, you were not imposing a requirement for the future, are we? Certainly, they will require to carry on their vocation. They can't become the United States to work as a janitor. Right. Okay, but that has nothing to do with lawful or unlawful immigration status. Well, certainly, but I think my point and I believe your point as well is that there must be some kind of nexus to the terms of issue and statute. Exactly. And certainly having a lawful employment that the terms and conditions of your employment have to do with and relate to carrying on. But that has nothing to do with authorization from the immigration standpoint. Well, certainly the first provision that your honor mentions does because the purpose of having I from 60 granted and approved is so that you can move to the final step to be employed lawfully in the United States. I don't get it by carrying on. I don't know what other definition of or meaning of carrying on could there be other than engaging in? What am I missing here? Carrying on such vocation, professional work or other work? What is ambiguous about carrying on? You focused on that and I don't get it. Well, none of the connotations of that term other than the temporal limitation of common-supplied or defined. They're left silent. Therefore, on the basic principles of administrative law and the Chevron, that's essentially delegated to the agency to figure out. So because there's no temporal deposition or refinement. Well, there is a temporal definition or refinement. But that's the only refinement that Congress provides. Okay. The two years. I'd like to get the governance you on whether the question of whether the regulation is rendering parts of 1255 case or purfluous. Is that something that we take a count of in the first part of our Chevron analysis or is that a part two construction consideration? Not both. It certainly goes to the ambiguity and that, my understanding is where the appellation of push the point. But the Congress knows how to say a canon as the DC Circuit has certainly read it is really a relevant in the context when Congress grants to administrative agency a program. It's expected that they're going to fill in any of the details. And if there is some overlap, it's simply of love to the agency to resolve. There's certainly no prohibition expressly stated in any of the statutory provisions that are relevant here or any other provision in the eye that I know of that would expressly preclude what the agency has done. Is there actually a conflict or could you give us any scenario where the regulation requiring lawful workers to years would not be inconsistent with 1255K? Yes. First, just to make clear, 1255K in no way will save Alan Corners' case. He's worked far more than 180 days. So this statute would not save him in any sense. But more to your point, there can be several cases in which 1255K would still operate and the regulation would operate in conjunction with it. For example, any case where the Alan has less than 180 days of unauthorized work before or after the two years immediately proceeding the filing of the I-360. So let's suppose it was authorized work. What's it that an alien arrived in the United States as a visitor, for example, and worked for the church unlawfully for 50 days? And then it was granted some other status, like temporary protected status, for example, which entails employment authorization and proceeded to continue to work for the church under TPS in that status. That would be authorized status and could gain the two years of required employment being authorized to satisfy the regulation. And then if the 360 was approved, they could adjust status because they had only had unauthorized work for 50 days prior to the two years of gaining authorized work. And I see I'm not a time. But I'm going to give you another two minutes. The whole issue of the Congressional Directive in 2008 with respect to fraud, that really was directed at sub two and sub three of this provision, not having to do with the minister provision. And how does that fraud relate to immigration status as compared to relating to people's representation of their prior work experience, et cetera? How can you say that that directed from Congress justifies the imposition here? I could have been more clear in the briefs and I do apologize, but we do need to look at the agency's justification. And that did appear explicitly at 72 Federal Register 20447-48. That was the preamble to be noticed for post-reumaking. But it says nothing about immigration status. It's really directed to the representations regarding work experience, position, et cetera. Exactly. So there are two justifications. One is to mitigate and prevent fraud under this Congressional Directive. But secondly, it was an evidentiary rule. It was a bright line rule that was laid down for ease of administration. In other words, if a person in the United States is employed legally in accordance with work authorization, they will likely have documentation that will readily evidence their work in the vocation occupation, for example tax filings or i9 documents that are also required by separate provision of the statute. So that those documents will be readily available because the person had gained their experience through authorized work. That allows for the agency to easily confirm that that work authorization. But ease of administration can't trump the intent of the statute. A lot of things could say, okay, we're going to make this easy. And categorically, you know, impose a requirement that then doesn't have a real rationale. Right. And here the fraud doesn't seem to have a real rationale. How does it? Well, it's interesting that you're on our mentioned that because my understanding is that the Pellies have never had any one point challenged procedurally this rule. They've never said that the agency hasn't propered a proper justification such that it would be violated. Some young line principles that the agency must engage in reaching the reason decision making rather than. We just a step two though, figuring out whether it's arbitrary. Right. That's where we are. Well, in your honest correct, you'll have to focus on the statute at that point. As far as the agency's rationales concerned, I mean, now we have to go what a little reason decision making. But they still asking about the fraud aspect. How are you saying that this is reasonably related to the fraud issue? This issue of, okay, you have to have been here in lawful immigration status for two years. Well, it's a reconciles and takes into account relevant provisions of the INA Congress has had an underlying set forth an underlying principle in the INA that there should not be unauthorized work in the United States period. There is the immigration form and control act in 1986 set forward that paradigm. But as to the special, as to special immigration religious workers in, for 55K, they specifically contemplate an exception to that. So how particularly with the, this act that applied only to subsections two and three, how can you argue that that justifies application to subsection one? Well, I'm not so sure that the congressional qualification is so far reaching, as your honest suggests, if we look at 1255K to introductory clause reads, an INA was eligible to receive immigrant visa under paragraphs, ellipsis and so forth. In other words, Congress had an introductory provision that said that the agency would make independent convictions and qualifications about the adjudication of immigrant visa petitions. Before we even get to the second step of adjustment of status, which is the limitation of 255K, it concerns adjustment of status, not the adjudication of immigrant visa petitions. It was just what is an issue here. But if the aliens are not eligible for adjustment of change of status under 255K as a result of unauthorized work, why would 255K go on to talk about a cap of 180 days on the unauthorized work? If the aliens are mounted the first step in process, and then could still qualify under 245A with the saving clause under 245K, then the alien would adjust status. Which assume they engage in unauthorized work and that that did not preclude their eligibility for adjustment of status. And there are cases which I've mentioned where aliens would qualify under 245K would benefit from that provision. If the unauthorized work was less than 180 days and took place before the two years that's mentioned in 101A27. If we don't find the ambiguity that usually persists in the statute, what does that leave you? Well, obviously it's a court determined that the statute is unambiguous and in your reading the statute, the lack of ambiguity necessitates the reading that the appellees venture in this case, then obviously the step one settles the issue. But obviously if the government has maintained that there's just, we don't read that there is a clear determination here carrying on is not defined. There's certainly no common law, a subtle common law understanding the term that the appellees can point to. And under subtle principles of the Ministry of Law, for example, first publishing Supreme Court said back in the 40s, if there's no common law that's not a reading, the attaches to statutory term and the statute is medallinated to an agency, expected the agency would work that out. So what then would be the remedy? In other words, other than the two years of lawful employment from the government's perspective, is there any other criterion that an own card hasn't satisfied so that when we move on to the agency, would be appropriate as we held in soltene rather than simply affirming or I'm seeing below. Okay. I'm not sure I understand the question. Your Honours asking about the appropriate remedy if you were to find agency error? Would we simply be affirming or is there any reason to be remanding for further consideration, for example, for their investigation or consideration of other criteria for eligibility for the I-360 position? Well, if the court finds that the regulation is ultra-vary, that would necessarily be a remand to act in accordance with the court's legal determination, it's interesting in this case, that under no set of circumstances can now record benefit from the court's ruling because by the statute, he can't adjust status because he's been unauthorized employment from more than 180 days and he has never maintained lawful minimum status. So both of those conditions, now I haven't been fulfilled, he has precluded from the adjustment from the adjustment. All right. Thank you. We'll give him a number of them. May I please the court, Mr. Forning? My name is William Stock. I represent Schillman and a Costal Church as well as Pastor of Colisell and Carr. I'm representing both Pastor Allen Carr and the church, so I would ask that I have about four minutes to address the standing issue for Pastor Allen Carr and say the name of my time to address the other issues that are available. Thank you, wish. Thank you, Your Honor. With respect to the standing issue, we know first that the government had waived the prudential standing issue under the APA and it really the only issue is the constitutional standing issue. And this goes to a broader question of when and whether beneficiaries of immigrant visa petitions can come into court when they believe that the agency has revoked that petition in some way that would harm them. Perhaps outside of the question of adjustment of status for on the basis of that particular immigrant visa petition. Well, he's to not been denied his petition. Correct. And automatically if we if we affirm he would be granted his petition and that goes a little bit to Judge Krass's question of the next step. Because the only reason he was denied was this regulation he would then be granted the petition is accurate. It wouldn't be our manicuron because it would be a second proceeding under Section 245, as Mr. Foray pointed out, if it was in a removal proceeding, that application would be a form of relief from the removal. So that if the immigration judge were to grant it on the basis of the petition, he would be allowed to remain. Okay. But if the immigration judge didn't grant it. But even the opportunity to apply is for closed. Once there's no immigrant visa petition on which to base the Section 245 adjustment. And you're saying in response to my question yesterday he didn't have the visa. He's removable. Today he does have the visa. He's removable but now has an application for relief from removal. Has the opportunity to be. Potentially not exactly. And so the potential benefit answers the redressability issue? I believe so, Your Honor, because without the opportunity even to apply, one never can apply. And if I may, the government's argument proves a bit too much. If we think of the list of, I know right after us, is a proceeding that is a review of a removal order. And under Section 1252, the Section 245 question is not even re-reviewable before this court. Right? So there are, there are steps, I mean the government could come in under their argument. Any time an immigrant visa petition was denied and say, well, Your Honor, it's discretionary whether we ever grant Step 2. So don't bother yourself with Step 1 because under, you know, we'll just come back in here under Section 1252 and say it's a discretionary decision that Your Honor can't review. And it strikes me that that's proving that the government could act arbitrarily at Step 1 just because under Section 1252. So Step 2, kind of, is this even fit to insulate their decision from review? I thought his position was, I'm sorry, I thought his position was slightly different in negating this understood. I thought it was that at the next step he couldn't get redress, he was precluded and that because it was precluded, that's why whatever happened that this stage didn't satisfy the redressability factor of standard. That certainly is his position and I would submit that in 383 pages of administrative record that relates to the I-360 that the government produced as its basis for their decision in this case. But it's precisely two paragraphs on one page which are the factual basis for the assertions Mr. Forning is making today. I'm not prepared to litigate a Section 245 application for Pastor Allen Par that's not before this court, not before the service. And again, it is really, you know, the opportunity to get to Step 2 is all we're seeking. So, so you do not concede then that he is ineligible for adjustment of status today? Correct, Your Honor. I would say that there are many provisions and ways and the meet you pointed some of the ways out that Pastor Allen Par may be ultimately able to redress his status in the United States. Both through administrative actions of various kinds as well as through these application overseas. Mr. Forning's brief would argue on that point that well, certainly it's true he could go overseas but he would have to be out for 10 years and the church might go away and he might stop being a pastor and there are lots of contingencies but I would argue there are lots of contingencies on the positive side as well. Applications that he could make for relief that would allow him to ultimately proceed with a Section 245 adjustment, either before the service or before an immigration judge. I wasn't totally convinced by the argument that the two-year prohibition is necessarily inconsistent with the 180 days. But we sent you a letter requiring us to the lead in to the adjustment of status provision. Do you believe that that lead in is is applicable such that it's notwithstanding this anything contained in or notwithstanding his unauthorized status on the second. Section 245A provides that certain people may apply for adjustment of status. Section 242C7 says that certain of those people are then precluded from adjustment of status on authorized employment and failure to maintain status. And Section 245K makes an exception to the exception, stating that it doesn't apply. So yes, and our point would be that given that whole statutory scheme, it was inconsistent for the government to come out with a regulation which if a pastor came into the United States began serving his or her church and was then later adjusted or changed at a temporary status, for example, finished the two years within a lawful status. That even though Section 245K would allow that pastor to have adjusted status if there wasn't approved visa petition, the service is essentially writing Section 245K out of the statute for that person by saying, well, we never get you to Section 245A because we've denied you visa petition. But they've also identified scenarios where the two would not be inconsistent. Certainly, that's true, but we believe that as we're making a facial challenge here, the government would have to show that there was sort of any circumstance that there's no circumstance where it would be appropriate to grant the 360 but deny the 245. There certainly may be many of those kinds of circumstances that the pastor could be a criminal, the pastor could have suspected terrorism title or 40 different grounds of inadmissibility to the United States, none of which are adjudicated at the petition stage, whether it's an immigrant petition for a religious worker, another worker, a family member, etc. The government has, seems to concede at least in its briefs, that there is the opportunity for adjustment of status or order apply for immigration visa 10 years down the road. So I recognize that you think there are other scenarios such as ambiguity raised that may apply, but just as to these 10 years, if all we're working with is the opportunity to apply 10 years from now, would that for redressability for constitutional standing purposes be sufficient in your view? I believe it would, there are visa petitions in the family system, for example, where a conservative estimate is that it will take 20 to 30 years, 70 years for some nationalities for those visa petitions to be able to sort of come to the front of the line and be eligible to immigrate. In the immigration system, people are willing to wait very long times for the opportunity to come to the United States. So at the time frames, I have for brother and sister petitions under the family-based system, the brother or sister of a U.S. citizen may have to wait 20 or 30 years for the opportunity to come into the United States. If the brother or sister is of a Mexican national, it may be closer to 70 years. All right, I want to address the Chevron. Certainly, Your Honor. Our position is that carrying on is an unambiguous term, specifically as it relates to carrying on of a religious vocation. That Congress chose those words because the word employment doesn't necessarily apply to a Buddhist monk or a Catholic nun who may not receive a compensation for his or her services. It is interesting that there is in fact no statutory definition of carrying on, but there is also a definition section that is specific to this religious work of permutant. It's in section 204.5M5. That provision does not have a definition of carrying on. So it strikes me that if a government's position is that this is an unambiguous phrase, they might have taken the trouble to at least set forth what their interpretation of carrying on was. Well, except in the case of, we've talked about appropriate agencies. It wasn't a definition of appropriate agencies either. I mean, I don't know that that is. I believe it certainly relates to the fact that, as I believe from the question again, and as our position is, that carrying on is a straightforward term. That it isn't susceptible to alternative meetings and that indeed to take carrying on and stretch it to say that because Congress put in a temporal limitation of two years, Congress knew how to say that they wanted limitations on that carrying on. They said they wanted it to be carrying on for two years. They didn't say carrying on for two years in the United States. They didn't say carrying on for two years in a particular religious position. I think that a Congress assumed that the phrase carrying on was, in fact, straightforward when applied to the idea of how one is a religious worker. What if the regulation required full time employment? The regulation does require employment in access of 35 hours per week. I would argue, and it's not before the Court of the point, that that is an open question is to whether the entire structure of this regulation, which was written in order to allegedly combat fraud, may not be susceptible to further challenges. In the case where the government argued that a Catholic known or a Buddhist monk was not employed on a full-time basis because he or she did not have pastubs and W-2s and tax filings. I'd go back to Judge Friendell's question to the government about the first use of carrying on. The statute applies to special ingrents who seek to enter the U.S. solely for the purpose of carrying on this vocation. And then the provision that said, as you hear, is referring back to the carrying on of such vocation. Correct. So isn't it the case that when we read what Congress was initially authorizing people to come and seeking to carry on that vocation that Congress, we all understand what Congress intended at that point was for people to come and seek to work lawfully in that vocation? Correct. The visa petition would be the basis for status that allows the person to work without restriction for the religious domination, perhaps a different religious denomination, perhaps even eventually to change occupations entirely. So why, then, if we agree that that is the plain reading of the first reference to carrying on of the vocation, when we have the second reference back to such vocation, why aren't we, as a matter of just plain reading of the statute, also importing the word in there the understanding that it's lawful? I would agree. I believe the statutory assumption is that after the grant of a permanent resident status, all employment in the United States is, by definition, lawful because lawful permanent residence is defined as the ability to live and work in the United States until that status is taken away. But I would agree that Congress may not have felt the need to expressly say they have said you have to be coming to be a permanent resident in order to carry on the religious vocation. And so to say then separately that you have to still be authorized to its redundant. At that point, you've become a permanent resident, so you are authorized to carry that on. But why is the reference back then to the carrying on of such vocation? Why doesn't that include the concept of lawful work? Because the such vocation is due to the structure of A27C that coming to the U.S. to continue carrying on, refers to both subpart 1, subpart 2, and subpart 3. And so rather than enumerate three separate times that the requirement would be to have been doing either ministerial work or professional work or vocation work for those two prior years, Congress just said carrying on such religious work, meaning that a minister must be coming to be a minister. A professional must be coming to be a professional and another worker must be coming to be another worker. For example, a pastor Allen Car had two years as a pastor and wanted to come to be a religious broadcaster as one of the examples in the regulations. He would need two years as a religious broadcaster to qualify to be a religious broadcaster. So the reference to carrying on such vocation is meant to enact that idea that we want people to have been a pastor if they are immigrating solely to be a pastor. But not to include the concept of lawful work that you agree is an inherent in the first use of the two. Correct. I think the statute says nothing about a requirement that those for those two years be in lawful immigration status or that they be entirely in lawful immigration status. What if we get to step two of Chevron? I think then that that's where section 245K and the ability, the government's position that there's this absolute restriction on the ability to work in the United States and then get other relief under the Immigration National EEC is misplaced. There are exceptions to that rule that are throughout the statute. And so those considerations have never been seen as part of the visa petition process. They've always been seen under eligibility for changes or adjustment of status rather than the visa petition itself. Why is our consideration of 1255K limited to part two? It isn't the law of the circuit under Batista and pressed all that we consider all of the traditional tools of construction. And that's been applied in a fairly broad way. That would certainly be our position, Your Honor, that we would consider the existence of sections 245K and this ability to adjust status in spite of minor violations of status in these specific employment based categories only. That that must be taken into account when we're adjudicating a visa petition and a regulation which seeks to limit the ability to adjust status on the basis of that very same employment based status. That was the subject of section 245K, 1255K. In other words, in part one of Chevron. In other words, in part one of Chevron, that it makes it clear that the two years had nothing to do with welfare status inside outside the U.S. Thank you very much, Your Honor. All right, thank you. Mr. Forning, you reserve a bottle of time. Thank you, Judge Rundell. Just three brief points on the rebuttal. Our first very briefly, provincial standing, I don't think that can be waived. The district court did address the issue and after Lexmark, as Justice Scalia said, there's a lot of known culture issues in this arena. But after Lexmark, it's no longer known as provincial standing. So any assumptions how it can be waived, I think, for, by the way, side, it really should be called statutory standing or zone of interest standing. But in any event, the inquiry is the same, whether or not Congress intended to establish a cause of action under the statute for the appellees, for example, in this case, and we've already got point of brief. So I don't need the later point. Second. Good. Second. Secondly, regarding the availability of an immigrant visa overseas, I think Clapper, a recent Supreme Court case, really, dresses that issue. When you have a highly attenuated chain of contingencies that could break down at any one point, that does not establish Article 3 standing. And given the fact that this individual would need to wait 10 years upon their departure from the United States, giving yet an immigrant visa, anything could break down at that point in time. And it's just not the type of situation that is sufficient for Article 3 standing. Is section 10 of the APA important to our standing and the else? The judicial review provision. In other words, codified at 5GSC 706. I just want to make sure I'm talking to the right provisions. I haven't actually looked at the original APA in a while. But I think your honor means the judicial review provisions. The DC Circuit certainly has incorporated the arbitrary, capricious standard under 706A2 into the second part of the Chevron Analysis. And I think that analysis, given some hints from the Supreme Court recently, is probably correct. It's the same very lenient standard. It's just simply whether the agency's decision-making is reasonable. It doesn't need to be the best reading the statute and the court can even disagree with it. It just simply needs to be reasonable. The last point, the only real argument that the appellees have in this case is that Congress knows how to set or Congress set up a condition. And when they set up one condition, all other conditions are precluded. That is not any principle of an Israel ball. And I know of it certainly in the DC Circuit, which here is many of these types of agency challenges and confronts statutory interpretation and agency programs. They've rejected that paradigm completely. And we've cited those cases in our briefs, the city of Barnes, Stable and Caterer-Bah County, an EPA case where the exact situation is not in the case of an agency. The situation arose. Very similar situation arose on the statute as we have here where there was a condition in one part not mentioned in another. And the agency was free to borrow the condition from an unrelated section of the statute. But I think their main point was that carrying on is not ambiguous. Well, that's really is the main point because we're pretty confronted with an agency's allegation that we have an ambiguous statute. The party is most often loose because the court owes deference to the agency at the second step. So of course they'll recur to just a chevron step one. That's the strongest part of that case. But unfortunately, I haven't been able to point to anything in the statute that shows that the term at issue is defined or that's resolved in any settled manner whatsoever that would resolve the issue at step one. And you're saying that that breeds ambiguity. The fact that it doesn't have a settled meaning? Well, I'm referring back to the earlier point I made and just to be more clear, if there's no settled common law meaning, for example, in the first publication case that I mentioned, the Supreme Court said, well, under the National Labor Relations Act, for example, it could be that the term employment has a settled common law meaning and under certain circumstances, that meaning may be in-person on the agency. But it did happen so happening that case that they rejected the settled common law meaning because of other indicators in the statute that it was expected that the agency would develop a changing definition that would address facts and circumstances through the administration program. What about your colleague's argument that the fact that there is no definition in the regulations should in order to a detriment? But the inquiry under chevron is how the statute reads. Regulations are all went. Do you notice for the questions? Yes, I know just a couple. Does the government dispute that Alan Carr seeks to enter the U.S. solely for purposes of carrying on the location of the Minister? Well, I have no position on that matter because it was an litigation. So, and I don't believe it was actually addressed in the agency's final decision. So, I certainly can't open that because of the chainery doctrine. You know, that would be an ad hoc rationalization at this point. But I think that perhaps goes John's earlier question about the relief. It would need to be reminded back to the agency because they would need to address other factors under unrelated sections of the regulation. Alan Carr may be denied on other grounds. Thank you. Thank you. Thank you. Thank you. Good cases will argue we'll take another advice