[00:00:00] Speaker 03:
Thank you.

[00:00:33] Speaker 03:
The final matter that we have for today is Kerry Yia et al versus Alejandro Mayorkas.

[00:00:51] Speaker 02:
Ms.

[00:00:51] Speaker 02:
Korski, good morning.

[00:00:54] Speaker 01:
Good morning, Your Honors.

[00:00:57] Speaker 01:
May it please the court, Ashley Gorski for plaintiffs.

[00:01:00] Speaker 01:
I'd like to reserve eight minutes for a battle.

[00:01:03] Speaker 01:
Plaintiffs are three ordinary, law-abiding U.S.

[00:01:06] Speaker 01:
citizens who are Muslim and who are subject to intrusive and irrelevant questions about their faith when they return home to the U.S.

[00:01:14] Speaker 01:
from international travel.

[00:01:15] Speaker 03:
Let me stop you there, counsel.

[00:01:19] Speaker 03:
I've been really puzzled by the briefing by the government because government seems to have sort of now put forth another argument, which is a standing question.

[00:01:29] Speaker 03:
So I guess, do you assume from their filings then that that's the basis, they've indicated that's the basis that they want us to affirm now, correct?

[00:01:39] Speaker 01:
Yes, Your Honor, this is a very unusual appeal and that the government has abandoned nearly every argument it made below except for one.

[00:01:46] Speaker 03:
How should we treat that abandonment at this stage?

[00:01:49] Speaker 01:
At this stage, Your Honor, because plaintiffs have plausibly alleged a discriminatory policy or practice of religious questioning, the court should treat those arguments as abandoned and remand the case for discovery as the government proposes.

[00:02:05] Speaker 00:
Why is a policy and practice necessary?

[00:02:08] Speaker 00:
This is not a Menell case under Section 1983.

[00:02:11] Speaker 00:
If you've alleged that there have been repeated actions against your plaintiffs,

[00:02:18] Speaker 00:
and it's likely that they will continue.

[00:02:21] Speaker 00:
You don't have to prove a policy in practice, I don't think.

[00:02:27] Speaker 00:
Am I wrong on that?

[00:02:29] Speaker 01:
We agree with you, Your Honor.

[00:02:31] Speaker 01:
We have shown a likelihood of recurrence.

[00:02:33] Speaker 01:
20 border officers have subjected plaintiffs to religious questioning on 10 separate occasions at six different courts of entry.

[00:02:39] Speaker 00:
So it seems to me that the finding of policy and practice in this case, as opposed to a 1983 case, is irrelevant.

[00:02:48] Speaker 01:
We agree that it's irrelevant, but we've also, we've pled it, we've met it.

[00:02:52] Speaker 01:
And so in some ways it's academic because we've so clearly, plausibly alleged a discriminatory policy or practice.

[00:02:59] Speaker 03:
And the district court has found standing in this case, correct?

[00:03:02] Speaker 01:
That is correct.

[00:03:02] Speaker 01:
The district court held that plaintiffs had adequately alleged a discriminatory policy or practice.

[00:03:08] Speaker 05:
So you're asking us simply, you're asking, urging us on the basis on which the government's argued this, you're asking us to affirm the district court.

[00:03:15] Speaker 01:
Well, we're asking for the district court's judgment to be reversed.

[00:03:18] Speaker 05:
The judgment has to be reversed, but the reasoning for the district court's order would actually stand.

[00:03:24] Speaker 05:
I mean, this is so topsy-turvy.

[00:03:26] Speaker 05:
We agree.

[00:03:28] Speaker 05:
And if we do, as the government suggests, if we agree that you've adequately pled this and send us back to the district court, is the government still free to come back and make the substantive arguments on the Establishment Clause, the Free Exercise Clause, RFRA?

[00:03:42] Speaker 05:
Or have they now waived all of that?

[00:03:43] Speaker 01:
Well, Your Honor, we are no longer pursuing our Establishment Clause claim, but they have waived those arguments.

[00:03:50] Speaker 01:
That's a question for another day, the scope of the waiver.

[00:03:53] Speaker 05:
They've waived them before us.

[00:03:54] Speaker 01:
Yes.

[00:03:55] Speaker 05:
I just don't understand whether they're now thinking that they're going to waive them before the district court.

[00:04:02] Speaker 01:
Because they have waived them before you.

[00:04:04] Speaker 01:
If the evidence in this case ultimately conforms to the pleadings,

[00:04:07] Speaker 01:
They should be bound by those waivers, but the Court doesn't have to reach that question today.

[00:04:13] Speaker 01:
I think the Court may simply remand for discovery.

[00:04:18] Speaker 00:
Right.

[00:04:18] Speaker 00:
If you take a look at the red brief and the footnote on page 25, you would be satisfied if we were to remand.

[00:04:27] Speaker 01:
Yes, Your Honor.

[00:04:27] Speaker 01:
We would be satisfied if you were to remand for discovery.

[00:04:33] Speaker 01:
Now, defendants do make a few different arguments about why, in their view, plaintiffs' allegations of a discriminatory policy or practice are implausible.

[00:04:43] Speaker 01:
First, they rely heavily on the idea that DHS has a written policy stating that it does not discriminate.

[00:04:48] Speaker 01:
But this court has repeatedly held in Hunter, in Redmond, that a government agency can be held liable for a practice or an unofficial policy that contradicts the formal written policy.

[00:05:00] Speaker 01:
In addition, this memo, the McAleenan memo, what the government refers to as the DHS Memorandum, is not a meaningful anti-discrimination policy.

[00:05:10] Speaker 01:
It contains no standards pertaining to discrimination.

[00:05:14] Speaker 01:
And that's in sharp contrast to a separate DHS memorandum on the use of race and ethnicity that requires DHS personnel to use race and ethnicity only where they have a compelling government interest and the use is narrowly tailored to that interest.

[00:05:30] Speaker 01:
It explicitly applies strict scrutiny.

[00:05:32] Speaker 01:
And that's the standard that should apply here, because religion is also a protected class.

[00:05:37] Speaker 01:
But this McAleenan memo doesn't mention strict scrutiny.

[00:05:40] Speaker 01:
It has no standard.

[00:05:41] Speaker 05:
Not only that, but it's got three exceptions.

[00:05:43] Speaker 05:
And exception number three says, unless we think it's necessary for some other reason, which we're not going to anticipate at this point.

[00:05:49] Speaker 05:
So it just seems to me that this is an enormous exception, which means that these officers may have thought that they were enforcing some other policy, which you now wish to challenge under strict scrutiny.

[00:06:02] Speaker 01:
That's exactly right, Your Honor.

[00:06:04] Speaker 01:
The McAleenan memo permits religious questioning under an extraordinarily lax standard that invites discrimination and that shows that it is likely that plaintiffs will be subject to religious questioning in the future.

[00:06:17] Speaker 01:
Second, defendants argue that there were other reasons for the questioning so that plaintiffs' 10 incidents should not count toward the policy or practice.

[00:06:26] Speaker 01:
For Imam Karieh and Mr. Moosley, defendants point

[00:06:29] Speaker 01:
to watch list status, but both plaintiffs plausibly allege that they were placed on the watch list in error.

[00:06:35] Speaker 01:
And more importantly, the fact that someone is on a watch list does not explain the particular religious questions challenged here.

[00:06:44] Speaker 01:
It does not explain questions like how many times a day do you pray?

[00:06:48] Speaker 01:
Do you pray daily?

[00:06:49] Speaker 01:
How religious do you consider yourself?

[00:06:51] Speaker 01:
And watch list status would certainly explain additional questioning at the border, other questioning focused on unlawful activity, but it doesn't explain the questions challenged here.

[00:07:01] Speaker 01:
And for these questions, it is more than plausible

[00:07:04] Speaker 01:
that discrimination is a substantial or floating factor.

[00:07:06] Speaker 05:
The government hasn't admitted even the existence of the watch list, as far as I can tell, but certainly has denied that these folks were on a watch list, although it's willing to assume that they were, and then take that as an explanation.

[00:07:19] Speaker 05:
Let's assume that there is a watch list and that your clients were on the watch list.

[00:07:25] Speaker 05:
Does that change the nature of your suit?

[00:07:27] Speaker 05:
Why can't you then challenge and say, well, yeah, but you went way beyond anything that the government should be entitled to do?

[00:07:34] Speaker 01:
Yes, and the government acknowledges the existence of the watch list.

[00:07:36] Speaker 01:
It does not confirm or deny whether these plaintiffs were on the watch list, but it shouldn't change the nature of these claims because the questions that are asked of plaintiffs are completely irrelevant to any legitimate purpose, let alone a compelling purpose that CBP

[00:07:51] Speaker 01:
might assert.

[00:07:52] Speaker 01:
The questions have no bearing on whether plaintiffs are going to provide, whether they are involved in terrorist activity or whether they could provide evidence of that activity.

[00:08:04] Speaker 01:
And then for Mr. Shaw, defendants... Why do you say that, Ms.

[00:08:07] Speaker 00:
Korski, especially in view that yesterday was 9-11?

[00:08:13] Speaker 00:
It's not true that all Muslims are terrorists, but all the terrorists on 9-11 were Muslims.

[00:08:21] Speaker 00:
And they were a particular kind of Muslim, weren't they?

[00:08:24] Speaker 00:
They were Sunni Muslims.

[00:08:25] Speaker 00:
They were Wahhabi Muslims.

[00:08:27] Speaker 00:
Why aren't religious questions relevant to determine whether the individuals are likely to be extremist Muslim terrorists?

[00:08:40] Speaker 01:
Well, the questions asked here, the questions challenged in this lawsuit, are not relevant to the detection of terrorists at the border, because these questions are questions like how many times a day do you pray?

[00:08:51] Speaker 01:
Millions of Americans, including millions of Sunni Muslims, pray daily, several times.

[00:08:56] Speaker 00:
Doesn't it go to the devotion that the religious person has to his religion?

[00:09:02] Speaker 00:
And if the religion itself is a hallmark of violence,

[00:09:08] Speaker 00:
Doesn't that have some relevance?

[00:09:10] Speaker 00:
But I'm quite prepared to say that these questions that I'm asking are totally irrelevant to this appeal, because as far as I'm concerned, this appeal deals only with the issue of the practice.

[00:09:24] Speaker 00:
And I think the practice issue is irrelevant.

[00:09:28] Speaker 01:
Your Honor, the practice of Islam is not a hallmark of violence.

[00:09:32] Speaker 01:
And given that millions of Americans are Muslim,

[00:09:36] Speaker 01:
it cannot be the case that the government has free reign to interrogate all Muslim Americans at the border about the depth of their faith.

[00:09:43] Speaker 00:
That is an issue which could be played out in a trial court under strict scrutiny, right?

[00:09:48] Speaker 01:
Exactly.

[00:09:49] Speaker 01:
And Your Honor, too, asked the way the question was framed was about whether these questions are relevant.

[00:09:53] Speaker 01:
But the relevance, the standard that governs here is strict scrutiny.

[00:09:56] Speaker 01:
The questions need to be narrowly tailored to the detection of a terrorist threat at the border.

[00:10:01] Speaker 01:
And these questions are not.

[00:10:03] Speaker 01:
Third, defendants cite no case from any court holding the allegations like plaintiffs are insufficient to survive a motion to dismiss.

[00:10:11] Speaker 01:
They rely on three custom and practice cases, Sabra, Trevino, and Christie.

[00:10:17] Speaker 01:
In Sabra and Trevino, both involved one plaintiff alleging one relevant incident.

[00:10:23] Speaker 01:
In Christie, two plaintiffs pointed to one incident apiece, and they said that they were subject to unique treatment, not a pattern.

[00:10:33] Speaker 01:
The allegations here involving plaintiffs, 10 incidents, dozens of complaints to DHS and four lawsuits brought by more than 20 Muslim Americans concerning more than 40 incidents of religious questioning are very different.

[00:10:47] Speaker 01:
And Sabra was the only one of these cases decided at the motion to dismiss stage.

[00:10:52] Speaker 01:
It's very unusual for a court to grant a motion to dismiss on policy or practice grounds because it's a fact intensive question.

[00:10:59] Speaker 01:
And then finally, even if the court were to conclude that plaintiffs have not plausibly alleged a discriminatory practice, plaintiffs' claims should still proceed, and that's for two reasons.

[00:11:10] Speaker 01:
First, plaintiffs may still seek expungement of the records reflecting the past unlawful questioning.

[00:11:17] Speaker 01:
Expungement is a form of relief that does not depend on a showing that the religious questioning is likely to recur.

[00:11:24] Speaker 01:
because the harm is the government's retention and dissemination of the records it has already collected.

[00:11:30] Speaker 01:
And these defendants are properly named because they control the database in which these records reside, and they're the ones responsible for the policies concerning the maintenance of these records.

[00:11:43] Speaker 01:
And then second, plaintiffs' claims under the Religious Freedom Restoration Act and their associational claims don't depend on a showing of discrimination against Muslims.

[00:11:55] Speaker 01:
I would just note, finally, that if defendants have reason to believe that a traveler can provide evidence of terrorism or other criminal activity within CDP's mandate, plaintiffs would not object to CDP asking those questions.

[00:12:12] Speaker 01:
But what plaintiffs experience when they come back home from international travel is altogether different.

[00:12:18] Speaker 01:
Border officers single them out as Muslim and conduct fishing expeditions into their personal religious beliefs.

[00:12:24] Speaker 01:
These questions are not narrowly tailored.

[00:12:27] Speaker 01:
And I will preserve the remainder of my time for rebuttal.

[00:12:30] Speaker 01:
Thank you.

[00:12:30] Speaker 03:
Very well.

[00:12:30] Speaker 03:
Thank you, counsel.

[00:12:43] Speaker 04:
Daniel Aguilar for Secretary Mayorkas and the federal defendants.

[00:12:47] Speaker 04:
So I want to focus on the policy pattern or practice claim, because that's how the parties litigated this issue in the district court.

[00:12:55] Speaker 04:
And you can see that excerpts of record 30-32, the district court's opinion, where it's saying the premise for plaintiff's theory of liability here is establishing a pattern or practice.

[00:13:06] Speaker 04:
And that's why this has been litigated.

[00:13:07] Speaker 03:
Hold on one second.

[00:13:08] Speaker 03:
I guess I want to make sure I understand.

[00:13:11] Speaker 03:
Sure.

[00:13:12] Speaker 03:
Would it be fair to say then that you have abandoned the basis for the court's affirmance in the first instance?

[00:13:21] Speaker 04:
We are not asking this court to affirm the district court's judgment based on the district court's ruling on the merits, our argument on appeal.

[00:13:28] Speaker 03:
You've abandoned them and you've waived them.

[00:13:30] Speaker 03:
Would that be fair?

[00:13:30] Speaker 04:
We are not raising them in this court.

[00:13:32] Speaker 04:
That is correct, Your Honor.

[00:13:33] Speaker 05:
And so if the if you go back, if you if we send you back to the district court, are you abandoning them there?

[00:13:39] Speaker 04:
No, Your Honor, as we've said in footnote five in our brief, what we are saying is we're not asking this court to affirm the district court's judgment based on its analysis of the legal standards to the pleadings alone, as we say in footnote five.

[00:13:52] Speaker 04:
As I said, we think that they have not plausibly alleged a policy pattern or practice and we can get into the merits of that.

[00:13:58] Speaker 04:
If the court disagrees, we would ask for a remand so that the parties can engage in discovery and eventually move for summary judgment.

[00:14:07] Speaker 04:
But I want to engage on why we don't think that this has been plausibly pled as a pattern or practice claim.

[00:14:14] Speaker 04:
So on pages 30 to 32, the District Court is analyzing why they think that's important.

[00:14:19] Speaker 04:
If you look to the substance of plaintiff's claims, they repeatedly allege that the reason why the agencies and the official capacity defendants are liable

[00:14:29] Speaker 04:
is because they have plausibly alleged a pattern or practice or policy.

[00:14:33] Speaker 04:
That's at paragraphs 194, 200, 206 to 209, 216, 222, 233.

[00:14:40] Speaker 04:
This was their theory of the case and that's why we engaged with them on it, both in the first motion to dismiss and the second motion to dismiss.

[00:14:47] Speaker 04:
That was the party's understanding of why this theory of liability.

[00:14:50] Speaker 03:
Indicated that three individuals have been stopped 10 times over the period of five years.

[00:14:55] Speaker 03:
Why isn't that enough?

[00:14:56] Speaker 03:
To plausibly allege.

[00:14:58] Speaker 03:
the concern here.

[00:15:00] Speaker 04:
And I think that that's exactly why we engage in the merits of that on the discussion of how Iqbal and Twombly apply to those when there is an obvious alternative explanation for secondary screening.

[00:15:12] Speaker 05:
Okay, so what's the alternative explanation?

[00:15:13] Speaker 04:
So for Mr. Shaw, it's his suspicious behavior during the secondary screening, right?

[00:15:18] Speaker 04:
As soon as he's selected for secondary screening, he says, I don't want to be searched.

[00:15:22] Speaker 04:
When they pick up his notebook, he says, I don't want you to read that.

[00:15:26] Speaker 04:
He's then not exactly elaborative about his financial work that's mentioned in the notebook.

[00:15:31] Speaker 04:
His religious writing is in there as well, when he says, why are you asking me questions about that?

[00:15:35] Speaker 04:
It's alleged the CBP officer responds, we're asking because of what you found in the notebook, which you didn't want us to read.

[00:15:41] Speaker 04:
He then says, when asked to search his electronic devices, I'd rather not be searched and I'd be willing not to re-enter the United States.

[00:15:48] Speaker 04:
Those kind of activities during secondary inspection are red lights for the CBP officers to stop and assess the situation and ask, why does this person not want me to inquire further?

[00:16:00] Speaker 04:
And it's a reason for asking particular questions about the things that Mr. Shaw did not want those officers to read.

[00:16:06] Speaker 04:
For the other two plaintiffs, Imam Karieh and Mr. Moosley, plaintiffs allege that they were on government terrorist watch lists, and so that is a reason for the secondary screening.

[00:16:16] Speaker 04:
Some of the questions that they were asked during the secondary screening are, I know that plaintiffs allege some other specific questions, but one of them, for example, on paragraph 58,

[00:16:26] Speaker 04:
is Imam Karieh left for a pilgrimage on the Hajj.

[00:16:31] Speaker 04:
And when he returned to the United States, the question was, did you go on pilgrimage?

[00:16:34] Speaker 04:
Have you been on the Hajj before?

[00:16:38] Speaker 04:
And to the extent that they're challenging that the written policy of DHS is somehow invidious or explicitly permits discrimination, I don't think that's true.

[00:16:46] Speaker 04:
That policy is saying if you're coming into the United States on, for instance, a religious visa for temporary religious work, the officer may have to ask questions about that if you're seeking asylum for political persecution.

[00:16:58] Speaker 05:
So the questions here are all legitimate if you get referred to secondary?

[00:17:02] Speaker 04:
That is not our argument.

[00:17:03] Speaker 04:
I was simply pointing out that some of these particular questions clearly fall within those buckets.

[00:17:07] Speaker 04:
Obviously, we take plaintiffs' allegations as they are.

[00:17:10] Speaker 04:
We accept them as true for the purposes of the motion to dismiss.

[00:17:13] Speaker 05:
Assuming that the questions are right, are these rogue officers?

[00:17:17] Speaker 04:
I think that that's at most what the complaint alleges.

[00:17:20] Speaker 05:
It's alleging that two plaintiffs on a terrorist... I'm just asking whether that's the government's position, that these questions were, assuming that they were asked,

[00:17:29] Speaker 05:
that these are rogue questions issued by rogue officers.

[00:17:36] Speaker 04:
Without further context in the complaint and without a discovery at this opportunity yet, I don't have a particular explanation for some of the questions.

[00:17:46] Speaker 04:
On that basis, I think at most what the complaint alleges, excepting that all is true without further context or other evidence.

[00:17:52] Speaker 05:
And the government would not be willing to defend the officers and the questions that they were asking about religious practices.

[00:17:58] Speaker 04:
That gets out ahead of the decisions that I can make standing before the court here I mean our argument here is it does seem to get way out and that's why this probably just has to go back

[00:18:08] Speaker 04:
And again, we've suggested if you disagree with her plausibility argument, but we think for the reasons explained here, that where essentially, we read the allegations as being consistent with their theory of liability, but something more would be needed as this court explained in, for instance, in very century aluminum company, which is the case that applied the Star versus Baca case that they applied and explained, so you need additional factual allegations to flesh out the complaint.

[00:18:34] Speaker 04:
And I know that they cite the other allegations made, complaints submitted to DHS or other litigation.

[00:18:42] Speaker 04:
The other litigation wasn't cited in their complaint.

[00:18:45] Speaker 04:
And to the extent that they're saying other people have made similar complaints, I don't think that gets you past the plausibility threshold, right?

[00:18:51] Speaker 04:
If other people had said, I believe that Southwestern Bell and Atlantic Bell are engaged in antitrust violations, that by itself doesn't tend to add to the plausibility of the pleadings in Twombly.

[00:19:04] Speaker 04:
I'm happy to answer any other questions that the court has.

[00:19:08] Speaker 03:
I don't have any other questions.

[00:19:10] Speaker 03:
No other questions.

[00:19:12] Speaker 03:
Thank you, counsel.

[00:19:13] Speaker 03:
Thank you.

[00:19:22] Speaker 01:
Just responding to my friend's last point, this court can of course take judicial notice of the four other lawsuits that plaintiffs have referred to in their briefing.

[00:19:31] Speaker 01:
And in three of those cases,

[00:19:33] Speaker 01:
the plaintiffs stated an equal protection claim.

[00:19:37] Speaker 01:
The defendants moved to dismiss and the district courts found that the plaintiffs had plausibly alleged discrimination.

[00:19:44] Speaker 01:
So these are not merely individuals alleging that they were subject to unlawful religious questioning.

[00:19:49] Speaker 01:
A court has found that those allegations are plausible.

[00:19:53] Speaker 05:
So your friend on the other side from the government argues that Mr. Shaw engaged in suspicious behavior which justified him being referred to secondary because he said he didn't want them to look at

[00:20:01] Speaker 05:
to look at his book, and he was willing not to enter the United States.

[00:20:06] Speaker 05:
Is that sufficient to undo your arguments about policy or practice?

[00:20:12] Speaker 01:
Not at all, Your Honor.

[00:20:14] Speaker 01:
The argument about Mr. Shaw seeming suspicious is absolutely a red herring.

[00:20:18] Speaker 01:
At the outset of his interaction with border officers, he invoked his rights not to consent to the search.

[00:20:25] Speaker 01:
At that point, the officers became suspicious.

[00:20:28] Speaker 01:
They started looking through his journal, and then they began asking him a litany of religious questions like, how religious do you consider yourself?

[00:20:35] Speaker 01:
How religious do you consider your family members?

[00:20:38] Speaker 01:
And when Mr. Shaw asked, why are you asking me these questions, the CBP officer said, we are asking you because of what we found in your journal.

[00:20:47] Speaker 01:
So we don't need to speculate about the CBP officer's motives.

[00:20:51] Speaker 01:
They were explicit.

[00:20:52] Speaker 01:
They were asking him these irrelevant religious questions based on improper assumptions about Islam because of what they found in his journal, which as we allege contained innocent notes about his private religious beliefs and practices which are rooted in peace and nonviolence.

[00:21:11] Speaker 01:
And it is incomprehensible that if a Christian traveler had been in secondary inspection, had said,

[00:21:16] Speaker 01:
I don't really want to be searched and was carrying a scriptural journal that contained their private meditations on the life of Jesus that a CBP officer would then ask them the same litany of religious questions.

[00:21:30] Speaker 01:
It wouldn't happen.

[00:21:31] Speaker 03:
I immediately imagined, I mean I looked at those facts and I immediately imagined of my

[00:21:37] Speaker 03:
grandmother going through the airport with her rosary and then having a litany of questions asked about her, about her religious beliefs.

[00:21:47] Speaker 03:
So it was certainly puzzling.

[00:21:49] Speaker 01:
We agree, Your Honor.

[00:21:51] Speaker 01:
It's just extraordinarily difficult to imagine border officers asking a Catholic traveler, how often do you pray the rosary?

[00:22:00] Speaker 01:
How many times a day do you pray the rosary?

[00:22:02] Speaker 05:
But if you had a Presbyterian group in, let's say, Duluth, Minnesota, that had engaged in domestic terrorism, and we had people at the border stopping folks coming in from Manitoba on their way to Duluth, Minnesota, could we ask them if they're Presbyterians?

[00:22:18] Speaker 01:
If the inquiry is individualized, if it is narrowly tailored to a compelling government interest.

[00:22:25] Speaker 01:
So depending on the facts there.

[00:22:26] Speaker 05:
I mean, I appreciate that's just a boilerplate answer.

[00:22:30] Speaker 05:
It's just strict scrutiny, but that just means that everything has to be tested.

[00:22:36] Speaker 05:
But it would not be irrelevant to ask questions about one's religious practice and perhaps to ask about one's religious devotion to Presbyterianism.

[00:22:45] Speaker 05:
if the government thought that there was some correlation between Presbyterianism and domestic terrorism.

[00:22:52] Speaker 01:
Your Honor, we don't think correlation alone would be sufficient.

[00:22:56] Speaker 01:
We maintain that there would have to be some kind of specific justification or belief that this particular traveler could provide evidence of a crime.

[00:23:04] Speaker 01:
is the standard that this court articulated in the Bursey case, which involved a grand jury witness who was questioned about their First Amendment protected associations, associations with the Black Panthers.

[00:23:16] Speaker 01:
And this court held that the grand jury witness did not need to respond to questions about their protected associations unless those questions had a substantial possibility

[00:23:27] Speaker 01:
of revealing evidence of a crime.

[00:23:29] Speaker 01:
And that gives a little more concreteness to the strict scrutiny standard in this context, Your Honor.

[00:23:36] Speaker 01:
With respect to the scope of the waiver, in other contexts, this court has been very clear that a party cannot offer up successively different legal or factual theories that could have been presented in a prior request for review.

[00:23:51] Speaker 01:
So something that plaintiffs are concerned about is the possibility of remand, we proceed to discovery,

[00:23:57] Speaker 01:
and then its summary judgment, the evidence conforms to the pleadings, and yet the government tries to advance legal arguments that it could have made here that it refused to make here.

[00:24:10] Speaker 01:
So in that sense, we think the defendant should be bound by their waiver on remand.

[00:24:15] Speaker 01:
If there are no further questions.

[00:24:16] Speaker 00:
So if we remand, your position is that they can't raise the other issues that the judge found regarding the questions were

[00:24:27] Speaker 00:
permissible.

[00:24:30] Speaker 01:
Your Honor, our position is that the legal arguments that they've abandoned here about, for example, what plaintiffs are required to allege to state a free exercise claim, what plaintiffs are required to allege to state a claim under the Religious Freedom Restoration Act, that they can't

[00:24:48] Speaker 01:
sing a different song once we're back on remand.

[00:24:51] Speaker 01:
They've had an opportunity to say here, plaintiffs have failed to state those claims.

[00:24:56] Speaker 01:
They're refusing to.

[00:24:56] Speaker 03:
They've asked to send it back to, if we go this route, if we disagree with them on standing, they've asked to send it back for factual determination.

[00:25:06] Speaker 03:
That's how I understand it.

[00:25:08] Speaker 05:
I understood the government to say it would go to summary judgment, so they can't come back with 12B6.

[00:25:12] Speaker 05:
That's correct.

[00:25:12] Speaker 03:
Right.

[00:25:13] Speaker 05:
Yes.

[00:25:14] Speaker 05:
But once you engage in discovery, they can come back and still defend

[00:25:18] Speaker 05:
the basis of RFRA, free exercise clause, equal protection, and so on.

[00:25:23] Speaker 01:
It may be a question for another day, but I don't think that the government should be permitted to make legal arguments that it could have made here, where it could have said plaintiffs failed to state a claim, and then back on summary judgment, they have a new or an old legal theory that they've abandoned and that they try to present to the district court and then subsequently to this court.

[00:25:44] Speaker 03:
Any additional questions?

[00:25:45] Speaker 03:
All right, thank you, Council.

[00:25:47] Speaker 03:
Thank you for the arguments by both Council today.

[00:25:50] Speaker 03:
The matter of Mr. Kyrie versus Mayorkas will be submitted.

[00:25:57] Speaker 03:
Thank you, and we will be adjourned for the day.