[00:00:16] Speaker 01:
You may proceed.

[00:00:17] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:20] Speaker 01:
Ethan Nutter for plaintiffs, and I'd like to reserve three minutes for rebuttal.

[00:00:25] Speaker 01:
The question before this Court is whether 8 U.S.

[00:00:28] Speaker 01:
Code Section 1252 F-1 deprives courts of all authority to compel the executive's compliance with its own policies regarding the U.S.

[00:00:38] Speaker 01:
border.

[00:00:39] Speaker 01:
And because Section 1252 F-1 is not so broad, the District Court erred, and in this case,

[00:00:46] Speaker 01:
The courts can compel compliance with this policy that would allow non-citizens to wait in line for processing without the fear of being turned back to Mexico to wait in dangerous and squalid conditions.

[00:01:00] Speaker 01:
And I want to start with kind of what is undisputed about this is that the government agrees this is a binding policy that the government is required to follow.

[00:01:10] Speaker 01:
Looking at 2 ER 104.

[00:01:12] Speaker 03:
So where is this policy?

[00:01:15] Speaker 03:
Where is it set down?

[00:01:19] Speaker 01:
So it originated in November 2021 memo, where the government said the policy is that once Title 42 ends, non-citizens must be allowed to wait in line.

[00:01:34] Speaker 01:
And then that, when Title 42 ended in May of 2023, was reinforced in the preamble as part of the Circumvention of Lawful Pathways rule.

[00:01:44] Speaker 01:
And it was also promulgated to OFL personnel through musters and training in the weeks following that.

[00:01:52] Speaker 03:
So is this policy reflected in a regulation, or is it just in policy documents and in the preamble?

[00:02:02] Speaker 01:
So it's primarily in the policy documents and the preamble.

[00:02:06] Speaker 03:
If it were to be made a regulation,

[00:02:09] Speaker 03:
One of the things they have to do in a notice of proposed rulemaking is put the statutory authority for the regulation.

[00:02:18] Speaker 03:
What would the statutory authority be cited for this?

[00:02:22] Speaker 01:
Well, so the government has maintained that this is part of their broad statutory authority to control the flow of immigration at the border.

[00:02:29] Speaker 01:
Particularly, they've cited 6 U.S.

[00:02:31] Speaker 01:
Code, I guess, 211-G about the

[00:02:35] Speaker 03:
CBP's powers, but they... That just assigns the powers to them.

[00:02:41] Speaker 03:
The powers are recited in the INA.

[00:02:43] Speaker 01:
Well, that's one of the sources of authority, yes.

[00:02:47] Speaker 01:
But the government has maintained that Section 1225, the key section that the government argues here, does not require

[00:02:55] Speaker 01:
any duties to non-citizens on the Mexico side of the border, whereas this policy does.

[00:03:00] Speaker 01:
This policy says how the government will treat non-citizens who have not crossed the border.

[00:03:06] Speaker 01:
And that's been the government's consistent policy, is that Section 1225 doesn't apply across the border, but this policy does.

[00:03:13] Speaker 01:
And what's clear is that the government is not following this policy.

[00:03:17] Speaker 03:
So even the government's... Isn't it a policy about what's gonna happen to people who will eventually make it to the border?

[00:03:24] Speaker 03:
I mean, this is a policy about how to exercise the processing authority at the border, ultimately, isn't it?

[00:03:31] Speaker 01:
So it does potentially have a collateral effect on processing.

[00:03:35] Speaker 03:
It's not collateral.

[00:03:36] Speaker 03:
The policy is a policy about processing people at the border.

[00:03:40] Speaker 03:
It isn't like here's a substantive asylum rule or here's a rule about cancellation that then has a collateral effect on processing.

[00:03:50] Speaker 03:
This is a rule about or a policy about processing, which is what F1 is all about, isn't it?

[00:03:57] Speaker 01:
Well, no, Your Honor, so this policy predates the actual processing.

[00:04:02] Speaker 01:
And that's the key.

[00:04:03] Speaker 01:
Under this court's precedent for the collateral effects, the question is whether it is one step removed.

[00:04:09] Speaker 01:
And here, yes, primarily the goal is to be processed and inspected.

[00:04:13] Speaker 03:
What comes from those cases, from footnote four of the Supreme Court's case and from Gonzalez, what comes from that is you're anchored in an injunction that is directed

[00:04:27] Speaker 03:
at a statute that's not in chapter four.

[00:04:32] Speaker 03:
And that's not what you have here.

[00:04:35] Speaker 03:
You have a policy about exercising the chapter four authority.

[00:04:38] Speaker 03:
So it's embedded within chapter four.

[00:04:41] Speaker 01:
No, Your Honor, we disagree.

[00:04:43] Speaker 01:
And one of the reasons is that the government doesn't promise inspection and processing if you wait in line.

[00:04:49] Speaker 01:
The policy that this injunction would enforce would simply allow non-citizens to wait, but it doesn't guarantee inspection.

[00:04:56] Speaker 01:
Non-citizens may choose to leave the line for their own reasons.

[00:05:00] Speaker 01:
This policy does not guarantee prompt.

[00:05:04] Speaker 00:
If an asylum seeker successfully waited in line,

[00:05:08] Speaker 00:
was not turned back at the end of the line.

[00:05:11] Speaker 00:
Pursuant to what you're requesting, would there not be an obligation on CBP's part to actually conduct the inspection?

[00:05:19] Speaker 01:
So yes, CBP's obligation under the statutes is to inspect and process, but the specific injunction that we're seeking does not compel that.

[00:05:28] Speaker 01:
And that's one of the key distinctions.

[00:05:30] Speaker 01:
For instance, so this court's precedent makes clear that the collateral effects is not limited to just the substantive eligibility questions.

[00:05:39] Speaker 01:
For instance, in Gonzalez with a Z,

[00:05:42] Speaker 03:
If it doesn't compel the processing, so when they get to the front of the line, then they can turn them away?

[00:05:48] Speaker 03:
I don't understand how it doesn't do that.

[00:05:51] Speaker 01:
Well, so the particular injunction would not require them to actually process them.

[00:05:57] Speaker 01:
The policy allows the CBP officers to process in order based on operational capacity, or even close the port if operational needs require it.

[00:06:09] Speaker 01:
And so the actual text of the injunction that plaintiffs are seeking is about that pre-processing step.

[00:06:16] Speaker 01:
Now, we agree that the statutes themselves would

[00:06:19] Speaker 01:
require processing in those situations, but the injunction itself would not.

[00:06:24] Speaker 04:
Is that what we look at then, trying to understand what the object of the injunction bar is?

[00:06:36] Speaker 04:
Is it the injunction?

[00:06:37] Speaker 04:
Is it the policy?

[00:06:39] Speaker 04:
How do you understand that?

[00:06:41] Speaker 01:
So the object of the injunction bar under Alamon Gonzalez is the effect on the processes carrying out the covered provision.

[00:06:51] Speaker 01:
And here, the actual injunction is an antecedent step to the inspection and processing.

[00:06:57] Speaker 04:
So you have an APA challenge, for example, that comes right at 1225 that says that actually that one of the other reasons that they're required to do this, aside from the Icardi claim, is that 1225 requires it, right?

[00:07:09] Speaker 01:
That's correct.

[00:07:10] Speaker 01:
And in that case, plaintiffs are just seeking declaratory relief.

[00:07:13] Speaker 01:
We're not requesting an injunction under that.

[00:07:16] Speaker 04:
How is that a different theory than the theory that motivates your injunctive relief?

[00:07:21] Speaker 01:
The declaratory and the APA claims are broader.

[00:07:25] Speaker 01:
Here we're focused on this narrow pre-inspection time when non-citizens are waiting at the border.

[00:07:33] Speaker 01:
Just for clarification, the Gonzalez case in 2020 was about immigration detainers that were issued prior to detention and arrest under section 1226.

[00:07:44] Speaker 01:
And this court reasoned that because that is an antecedent step and that detainer authority is not grounded in section 1226, an injunction on detainers is permissible, notwithstanding that an arrest might be the consequence of a detainer.

[00:08:00] Speaker 01:
And so that's exactly what we have here.

[00:08:03] Speaker 01:
We have this injunction that operates on the pre-inspection and processing waiting in line, the rights that the government has granted to non-citizens that says, we will not turn you away.

[00:08:15] Speaker 01:
And that injunction can compel compliance with that policy.

[00:08:19] Speaker 01:
But we've stopped short of asking for the actual compliance with the inspection and processing duties.

[00:08:24] Speaker 00:
The guidance doesn't mention waiting in line.

[00:08:25] Speaker 00:
So I'm just I'm confused as to how your proposed injunction is actually enforcing the

[00:08:32] Speaker 00:
The guidance.

[00:08:33] Speaker 00:
Maybe we've already tried to answer it, but I don't understand the answer.

[00:08:36] Speaker 01:
So, Your Honor, the guidance does mention waiting in line.

[00:08:39] Speaker 01:
So, at 2 ER 258, the guidance says, in all cases, however, undocumented non-citizens who are encountered at the borderline should be permitted to wait in line if they choose and proceed into the POE for processing as operational capacity permits.

[00:08:55] Speaker 01:
So that that's what we're focusing on is that portion of the policy that allows non citizens to wait in line if they choose.

[00:09:03] Speaker 01:
And the government has argued that there is a one-to-one connection between waiting in line and inspection and processing.

[00:09:11] Speaker 01:
But the record shows that that's not true.

[00:09:13] Speaker 01:
So non-citizens named plaintiffs in this case have sometimes decided that they don't want to wait in line because the government is not processing people expeditiously.

[00:09:24] Speaker 01:
Or Mexican authorities sometimes exercise their own authority and clear the line.

[00:09:31] Speaker 01:
But I do want to be clear, this injunction would prohibit US officials from using Mexican officials to remove people from the line.

[00:09:41] Speaker 01:
But that's the only way that that would affect that, is under the classic Rule 65, an injunction runs against those acting in concert.

[00:09:50] Speaker 03:
This isn't a line for handing out food.

[00:09:54] Speaker 03:
This is a line to be processed for entry into the United States.

[00:10:00] Speaker 01:
Yes, and it's an important right that the government in this policy has reiterated that non citizens are allowed to wait in line.

[00:10:08] Speaker 01:
And why that is important is because of how dangerous it can be to wait in northern Mexico, compared to the relative safety of waiting in line, which

[00:10:17] Speaker 01:
is no picnic, but the record is replete with examples of kidnapping.

[00:10:23] Speaker 01:
The government put in a Straus Center report in its own filings that mentioned two ERs, I think they're on 168, that 114 migrants were found after being kidnapped by the cartels.

[00:10:39] Speaker 01:
Isabel Doe, one of the plaintiffs, her husband was murdered on the way to the airport, trying to go actually to Canada because she had been turned away previously from the US.

[00:10:50] Speaker 01:
But even after that, the government was still not allowing people to wait in line, and so she had to return back to northern Mexico.

[00:10:57] Speaker 01:
And that's the kind of danger that non-citizens are facing and why this injunction is important and why compliance with the government's own policy is the bare minimum that the government can do.

[00:11:10] Speaker 04:
How does the U.S.

[00:11:11] Speaker 04:
government, can you just add a little more detail to how the U.S.

[00:11:15] Speaker 04:
government enforces or doesn't enforce the waiting in line in another country?

[00:11:22] Speaker 01:
So my understanding based on the record is that primarily US CBP officers are placed at the borderline and they, when they interact with non-citizens, will tell them you cannot wait in line.

[00:11:34] Speaker 03:
So some of them say you can't be processed without a CBP-1 appointment, but for example... Are they in Mexico and going down the line in Mexico and talking to people, what is your claim?

[00:11:47] Speaker 01:
So the claim is US Customs and Border Protection officials or OFO officials are telling non-citizens on the Mexico side of the border that they cannot wait in line.

[00:12:00] Speaker 04:
And how can they enforce that?

[00:12:03] Speaker 01:
Well, so for example, for Luisa Doe at 2ER 329, CBP officers said, you have to leave or we will call the Mexican authorities to remove you.

[00:12:14] Speaker 01:
And so that's the kind of explicit threats that not allowing non-citizens to wait in line.

[00:12:19] Speaker 03:
So the Mexican authorities allow the CBP folks to come

[00:12:26] Speaker 03:
into Mexico and go however long into the line and talk to people on the line and kick them off?

[00:12:34] Speaker 01:
I think primarily the CBP people stay on the US side of the border, but it does depend a little bit.

[00:12:40] Speaker 01:
But then when non-citizens approach the port, for example, like Louisa Doe was not allowed to wait in the line, she was told, you have to leave.

[00:12:49] Speaker 03:
Where was she when she was told?

[00:12:52] Speaker 01:
She was on the Mexico side.

[00:12:53] Speaker 03:
And a U.S.

[00:12:54] Speaker 03:
official was on the Mexican side.

[00:12:57] Speaker 01:
I don't know if the particular affidavit is clear about the CBP official's location exactly, but it's right at the border, I think on the U.S.

[00:13:06] Speaker 01:
side in that case.

[00:13:07] Speaker 04:
So Mr. Nutter, I guess this is a puzzle about trying to understand both sides' reading of this 1252 and its scope and then kind of what's left after that.

[00:13:19] Speaker 04:
I presume that one of the purposes behind 1252 is to avoid

[00:13:27] Speaker 04:
courts from reaching too broadly into sensitive executive branch decisions about immigration and, in this case, what's actually happening in another country.

[00:13:40] Speaker 04:
It would be strange, given presumptions against extraterritoriality and others, to say that the way that you get around that is by establishing that this is not happening in this country, that essentially you're asking for an injunction whose primary impact is in another country.

[00:13:59] Speaker 04:
How do you square that with the purposes behind 1252 and our usual hesitancy and presumptions against extending the judicial power extraterritorially?

[00:14:09] Speaker 01:
So I don't think that this judicial power would extend extra-territorially because it would be aimed at U.S.

[00:14:14] Speaker 01:
persons and their conduct.

[00:14:17] Speaker 01:
And because Article III courts have personal jurisdiction over U.S.

[00:14:20] Speaker 01:
officials, that authority can extend wherever the official acts.

[00:14:25] Speaker 01:
And here, for the purpose of 1252F1, that's with the backdrop that to strip district courts and circuit courts of their Article III equitable powers requires the clearest command under the California Supreme Court's decisions.

[00:14:42] Speaker 01:
And so we're really talking about how do you analyze the scope of 1252F1?

[00:14:47] Speaker 01:
Because Alemán Gonzalez does make clear that 1252F1 is a clear command stripping equitable authority.

[00:14:55] Speaker 01:
It's not a complete stripping of jurisdiction, but that's a different question.

[00:14:59] Speaker 01:
But here the scope does not extend to policies that aren't implementing the covered statutes.

[00:15:09] Speaker 01:
And here the government has chosen to promulgate this policy.

[00:15:12] Speaker 03:
It does not extend to policies that are not implementing the covered statute.

[00:15:17] Speaker 03:
But this policy does seem to implement the covered statutes.

[00:15:22] Speaker 03:
Because it's a policy about how they're going to process people at the border and how they're going to manage the line of people who are approaching the border for processing.

[00:15:31] Speaker 03:
It's inherently tied to that power.

[00:15:35] Speaker 01:
But it needs to be directly tied to that power.

[00:15:37] Speaker 01:
And that's this Quartz-Gonzalez opinion again, the 2020 Gonzalez, where the government had argued that the immigration detainers were a helpful tool in their 1226

[00:15:49] Speaker 01:
arrest and detention policies.

[00:15:52] Speaker 01:
But this court recognized that nonetheless, the detainer itself was not part of that statute.

[00:15:57] Speaker 01:
And so an injunction could run against the detainer in that case.

[00:16:03] Speaker 00:
But I guess that brings us back, and you're right.

[00:16:07] Speaker 00:
The guidance does speak to waiting in line.

[00:16:08] Speaker 00:
But it's waiting in line for what?

[00:16:12] Speaker 00:
It's to be inspected.

[00:16:13] Speaker 00:
It's not just waiting in line for the sake of waiting in line.

[00:16:18] Speaker 01:
That's right, but that's kind of the same question in Gonzales with detainers.

[00:16:21] Speaker 01:
It's not a detainer just to hold them for any reason.

[00:16:25] Speaker 01:
It's a detainer, you know, to

[00:16:27] Speaker 01:
arrest them under 1226, but that's the difference in what Gonzalez with an S in 2007 says is one step removed from the covered provision.

[00:16:38] Speaker 01:
And that's the key, is that there is one step removed from the waiting in line here to the actual inspection and processing under 1225.

[00:16:47] Speaker 03:
Just a procedural question.

[00:16:48] Speaker 03:
The only issue, as I understand it, that we have in front of us

[00:16:53] Speaker 03:
is an issue of preliminary injunction.

[00:16:56] Speaker 03:
So we don't have any issue related to declaratory relief or whether declaratory relief is covered by F-1.

[00:17:03] Speaker 03:
All that is still in the district court and not part of this appeal.

[00:17:06] Speaker 03:
Am I reading that correctly?

[00:17:07] Speaker 01:
That's correct, Your Honor.

[00:17:08] Speaker 01:
This is solely the preliminary injunction under the Icardi claim.

[00:17:12] Speaker 03:
Okay.

[00:17:13] Speaker 03:
And so there was no aspect in the request that was resolved

[00:17:18] Speaker 03:
by the district court's order relating to declaratory relief.

[00:17:22] Speaker 03:
It's just injunction.

[00:17:23] Speaker 01:
That's correct.

[00:17:25] Speaker 01:
And so, just to reiterate, one thing to clarify the scope of this, looking at other statutes that limit equitable authority, the Tax Injunction Act and the Anti-Injunction Act, and, you know, the Supreme Court, under the Tax Injunction Act, in direct marketing the parole, was interpreting a similar provision, and I want to read it just to be clear, that the Tax Injunction Act, 28 USC 1341, courts shall not enjoin, suspend, or restrain

[00:17:52] Speaker 01:
the assessment, collection, or levy of any tax.

[00:17:56] Speaker 01:
And the issue in direct marketing was information reporting requirements that Colorado had imposed that would have helped with assessment.

[00:18:04] Speaker 01:
But the Supreme Court said that the Tax Injunction Act does not apply because that information reporting is antecedent to the assessment.

[00:18:14] Speaker 01:
even though it might be helpful to or related to, the injunction was still permissible in that case because it operated prior to the statutory phrase assessment.

[00:18:25] Speaker 01:
And here, where the policy is operating prior to the statutory phrase, the operation of section 1225 in this case.

[00:18:34] Speaker 03:
Can I save some time for a revolt?

[00:18:40] Speaker 01:
Yes, Your Honor.

[00:18:40] Speaker 01:
And with that, we ask you to reverse.

[00:18:47] Speaker 03:
Here now from Ms.

[00:18:49] Speaker 03:
Shinners.

[00:19:02] Speaker 03:
You may proceed.

[00:19:03] Speaker 02:
Thank you, Your Honor.

[00:19:04] Speaker 02:
Good morning, and may it please the court.

[00:19:06] Speaker 02:
Catherine Shinners on behalf of defendants at police.

[00:19:10] Speaker 02:
The class-wide injunction plaintiffs seek is precluded by section 1252 f1 even if plaintiffs are seeking to enforce the self-imposed requirement that non-citizens be permitted to wait in line at the border.

[00:19:22] Speaker 02:
Plaintiffs have made several concessions in their reply brief and hear it argument as to the limits of what their requested injunction would do and although the government appreciates those concessions and that they are seeking to

[00:19:35] Speaker 02:
to define the term turned back to just relating to what cdp officials uh... say to people who seek to wait in line to be inspected in process and they clarify what precisely they're seeking to enforce the november twenty twenty guidance i do want to point out that these are we're not fully developed are clearly laid out in their briefing for the district court and certainly not in writing uh... and certainly not as clearly as in their reply

[00:20:01] Speaker 02:
but regardless the district court's decision was correct and I do want to focus a bit on what plaintiffs requested before the district court in their briefing because it does demonstrate the close causal relationship as Your Honors have recognized.

[00:20:15] Speaker 03:
Do you think that the limitations that you've just referenced from the reply in that argument would make a difference to the outcome?

[00:20:22] Speaker 02:
No.

[00:20:23] Speaker 02:
No, Your Honor.

[00:20:24] Speaker 03:
I just... I... Because it would seem that if they had, you know,

[00:20:31] Speaker 03:
a blunderbuss or overbroad request and the district court rejected it and it gets clarified in the briefing here that that might be an argument to send it back.

[00:20:42] Speaker 02:
No, I, I, if the, it does not make a difference to our argument.

[00:20:47] Speaker 02:
It's the, the argument that we presented in the briefing is correct and the district court was correct in that even with those concessions, the act that

[00:20:59] Speaker 02:
the acts that the requested injunction would seek to enjoin would impose requirements on the government to implement covered procedures.

[00:21:10] Speaker 02:
And I wanted to focus on what they requested just to show, one, the extremely close causal relationship between

[00:21:24] Speaker 02:
between a no turn back directive or allowing individuals to wait in line to be inspected and processed and imposing a requirement inspection and processing.

[00:21:34] Speaker 02:
The second reason why that's important is because it shows that even if you're seeking to enforce the government's own policy

[00:21:40] Speaker 02:
They're just like with the implementation of statutes, there are disagreements over the potential scope of what that policy even means.

[00:21:49] Speaker 02:
So it's important that, although plaintiffs emphasize that this is the government's policy that they're seeking to enforce, that it still falls within the scope of Section 1252-F1, and that there's a good reason why that should not be carved out from Section 1252-F1.

[00:22:09] Speaker 04:
What's your answer to Judge Collins' question for your friends on what the statutory authority would be if you were asked to give it, which I will ask you to do now?

[00:22:21] Speaker 02:
The guidance implements both the general authorities of the government and some specific procedures, including procedures under 1225.

[00:22:32] Speaker 02:
As noted in the brief,

[00:22:34] Speaker 02:
The guidance is about the management and processing of non-citizens.

[00:22:39] Speaker 02:
And in this context, the non-citizens are arriving non-citizens without documents sufficient for admission.

[00:22:45] Speaker 02:
And when the text of the document refers to processing, it is referring, and plaintiffs do not dispute this, to procedures that are governed in the first instance by the covered statute 1225.

[00:22:56] Speaker 04:
How do you distinguish that from the arguments I believe you've made elsewhere that 1225 does not apply to people waiting in another country?

[00:23:10] Speaker 02:
That's correct.

[00:23:11] Speaker 02:
Although the government is not required

[00:23:15] Speaker 02:
to the scope of 1225 in the government's view does not extend to individuals who are waiting in another country.

[00:23:24] Speaker 04:
OK, so why isn't this a collateral effect rather than a direct effect given that concession?

[00:23:30] Speaker 02:
Right.

[00:23:31] Speaker 02:
Even if the no turn back directive is not directly inspecting and processing someone, the act

[00:23:45] Speaker 02:
of the no turn back in joining, in joining, I apologize.

[00:23:55] Speaker 04:
Well, you've put yourself, the government's put itself in a difficult position, I think, by arguing one thing in one all-ultralato case and another thing in another all-ultralato case with respect to the scope of 1225, hasn't it?

[00:24:08] Speaker 02:
I apologize, Your Honor.

[00:24:09] Speaker 02:
And I'd like to elucidate my position.

[00:24:11] Speaker 02:
Please.

[00:24:14] Speaker 02:
Even if the authority for saying or permitting people to wait in line, even if that is not an implementation of inspection and processing, the relationship here cannot get any closer.

[00:24:27] Speaker 02:
There is no closer relationship between

[00:24:30] Speaker 02:
requiring the procedures of inspection and processing and permitting those individuals to wait in line for inspection and processing.

[00:24:38] Speaker 02:
The very purpose that those individuals are waiting in line is to be inspected and processed.

[00:24:45] Speaker 02:
And the class definition in this case, or the proposed class definition in this case, are those who claim to have been denied access to the asylum process.

[00:24:57] Speaker 02:
Plaintiffs define that as

[00:25:01] Speaker 02:
define access to the silent process as inspection and processing under 1225.

[00:25:06] Speaker 04:
How do you distinguish that from our Gonzales case, the detainer case that your friend raised?

[00:25:13] Speaker 02:
Yes, in Gonzalez versus Ice, there was no dispute, or in this case, excuse me, there's no dispute that inspection and processing is governed by 1225.

[00:25:24] Speaker 02:
And there's no dispute that the people that are seeking to wait in line at the border for entry into the port of entry that are members of the proposed class are seeking those procedures.

[00:25:36] Speaker 02:
In this case, an injunction

[00:25:38] Speaker 02:
would directly impose the government to take actions to allow people to wait in line to be inspected and processed.

[00:25:46] Speaker 02:
So it would directly impose requirements to take action to take action to implement inspection and processing, regardless of the authority for the CBP officer that is standing at the border.

[00:26:00] Speaker 02:
Inspection and processing is

[00:26:06] Speaker 02:
The management of inspection processing in this case is directly the proposed injunction directly imposes requirements on the government

[00:26:28] Speaker 02:
to implement inspection and processing by allowing people to wait in line to be inspected and processed.

[00:26:34] Speaker 04:
Why wouldn't that be true in the metering case or the pre-CPB-1 turn back cases or some of the other cases where prior to the Aleman Gonzalez case, the government took the position that these statutes didn't reach that far.

[00:26:53] Speaker 02:
I think the government still, the point is not that the statutes reach into Mexico, and although that could potentially- The effects of the statutes for purposes of 1250.

[00:27:04] Speaker 04:
Yeah.

[00:27:06] Speaker 02:
My apologies.

[00:27:07] Speaker 04:
Go ahead.

[00:27:07] Speaker 02:
The injunction in this case by requiring CBP, although that to permit individuals to wait in line to be inspected and processed is the

[00:27:17] Speaker 02:
is operationally imposes requirements to inspect and process.

[00:27:24] Speaker 02:
Now, I do want to address that plaintiffs say there's no guarantee that inspection or processing would happen, but it still imposes requirements concerning inspection and processing on the government, even if those duties don't extend yet to those in Mexico.

[00:27:44] Speaker 02:
the statutory scope, it might make the question a bit easier, but it doesn't change the resolve that section 1232 F1 still precludes the injunction here.

[00:27:53] Speaker 04:
Well, it's inspection and processing of whom, people who are physically present or arriving in.

[00:28:03] Speaker 04:
We don't spend a lot of time parsing that language here, but we're trying to figure out what words, we know

[00:28:11] Speaker 04:
What's happening?

[00:28:12] Speaker 04:
We know the verb.

[00:28:13] Speaker 04:
I'm trying to figure out the noun here.

[00:28:15] Speaker 04:
Who is it applying to?

[00:28:16] Speaker 04:
People who are arriving in president?

[00:28:18] Speaker 04:
What's the government's view as to the words in 1225 that do this work?

[00:28:26] Speaker 02:
Again, the government's view is not that 1225 applies to those in Mexico, although that issue

[00:28:33] Speaker 02:
that issue is currently on appeal in the AOL-1 case.

[00:28:38] Speaker 02:
But the government's view is not that.

[00:28:39] Speaker 02:
We're looking at the effect of the injunction on the government's implementation of 1225.

[00:28:44] Speaker 02:
And requiring or permitting individuals to wait in line at the border has the effect, it is not a collateral effect, but it has the effect of requiring the government to implement inspection and processing in a particular way.

[00:29:01] Speaker 02:
It has the effect of

[00:29:02] Speaker 02:
requiring the government to allow people to wait in line to be inspected and processed.

[00:29:07] Speaker 02:
And there's no closer relationship between those two.

[00:29:10] Speaker 02:
And I think I would like to go back to your question about the detainer case.

[00:29:13] Speaker 02:
In that case, the court's decision in that case hinged on the fact that the detainer procedures it found resided in a different statute.

[00:29:26] Speaker 02:
Here, the procedures at issue reside in 1225, although the authority potentially for managing intake.

[00:29:35] Speaker 04:
So the procedures that would address the no turn back policy, the procedures of US officials directing non-citizens on the other side of the border what to do are covered by 1225?

[00:29:55] Speaker 02:
the effect of the injunction is on procedures that are covered by 1225.

[00:30:02] Speaker 02:
And that is the government's position.

[00:30:05] Speaker 02:
But because it is an effect does not mean it is a collateral effect.

[00:30:08] Speaker 02:
And it's different because the plaintiffs aren't seeking to enforce a particular

[00:30:14] Speaker 02:
substantive immigration statute, or a detainer statute that's governed by a particular different section of the code.

[00:30:20] Speaker 02:
What they're seeking to enforce is guidance that pertains to the management of intake of individuals to be processed under the procedures at 1225.

[00:30:30] Speaker 04:
Who are, by definition, outside of the country.

[00:30:34] Speaker 02:
Once they are inside of the country, under the November 2020 guidance,

[00:30:41] Speaker 02:
They are to be processed under section or inspected and processed under section 1225A3 and other provisions of section 1225.

[00:30:48] Speaker 04:
So I think that's a yes.

[00:30:50] Speaker 04:
That the effect is outside of the country and that that is a direct enough effect on 1225, 1225's coverage that it would bring the injunction bar into play.

[00:31:04] Speaker 02:
It is a direct enough effect on the government's implementation of 1225.

[00:31:11] Speaker 02:
And again, this is the authority, the precise authority

[00:31:25] Speaker 02:
at issue is, or the source of the asserted right is not the key inquiry for whether the injunction is covered by 1252F1 and precluded by 1252F1.

[00:31:39] Speaker 02:
It is the effect on the government's implementation of covered procedures.

[00:31:46] Speaker 02:
The question is whether it requires the government to take actions or not to take actions to carry out, implement,

[00:31:54] Speaker 02:
covered procedures here.

[00:31:56] Speaker 02:
If the injunction directly required inspection and processing, there would be no question.

[00:32:00] Speaker 02:
And as Your Honors pointed out, other claims that plaintiffs have raised seek to directly require inspection and processing.

[00:32:10] Speaker 02:
But the turn back directive does essentially the same thing.

[00:32:14] Speaker 02:
It requires inspection and processing, ultimately, as to those who are waiting in line.

[00:32:19] Speaker 02:
And again, that's

[00:32:23] Speaker 02:
Although inspection and processing does not take place until individuals are on U.S.

[00:32:30] Speaker 02:
soil, unless the noncitizen leaves, that is what takes place.

[00:32:36] Speaker 02:
That is what they are in line to do.

[00:32:50] Speaker 03:
You agree that we have no issue of declaratory relief in front of us, so we'd have no occasion to say anything about that issue with respect to F1?

[00:33:07] Speaker 02:
Yes, Your Honor.

[00:33:07] Speaker 02:
The only issue before the court is the denial of preliminary injunctive relief.

[00:33:15] Speaker 02:
I want to point out one additional line in the guidance

[00:33:21] Speaker 02:
The very guidance that says permitting non-citizens to wait in line is for the purpose of allowing them to proceed into the POE for processing as operational capacity permits.

[00:33:32] Speaker 02:
That's cited at plaintiff's reply brief at 6-7 and again at 26.

[00:33:41] Speaker 02:
And that is what plaintiffs say that they are seeking to enforce through their no turn back directive.

[00:33:48] Speaker 02:
It expressly refers to

[00:33:50] Speaker 02:
the fact that people who are waiting in line then shall be permitted to proceed into the POE for processing as capacity permits.

[00:34:03] Speaker 02:
I also want to go back to what I stated at the beginning.

[00:34:08] Speaker 02:
Before the district court, plaintiffs made very clear that, again, that they were seeking to impose obligations to inspect and process.

[00:34:15] Speaker 02:
They said they were seeking to enjoin defendants' failure to follow their binding guidance to inspect and process asylum seekers.

[00:34:23] Speaker 02:
Before the district court, they did not really define what they meant by turnbacks, but they did call it a refusal to process.

[00:34:30] Speaker 02:
They said CBP has a policy under which CBP officials refuse to process asylum seekers at POEs who present without a CBP-1 appointment despite the binding guidance.

[00:34:40] Speaker 02:
And that's at 2ER-226.

[00:34:44] Speaker 02:
They also specifically equated a no turn back directive to a self-imposed obligation to inspect and process to ER 45.

[00:34:53] Speaker 02:
Thus, again, this demonstrates how close the relationship is between a no turn back directive and requirements regarding the implementation of inspection and processing that are procedures governed by 1225.

[00:35:21] Speaker 02:
If your honors If your honors have no further questions Thank you.

[00:35:42] Speaker 03:
All right.

[00:35:43] Speaker 03:
Thank you.

[00:35:43] Speaker 03:
We'll hear rebuttal I

[00:35:58] Speaker 01:
Just a few quick points, your honor.

[00:36:01] Speaker 01:
First, I want to respond to counsel's claims that plaintiffs did not develop this argument at the district court.

[00:36:07] Speaker 01:
That's not true at 2ER 2627.

[00:36:10] Speaker 01:
Not 2ER, it's the first volume.

[00:36:15] Speaker 01:
At the district court hearing, counsel made clear that this was primarily about the waiting in line, and the district court was aware and asked counsel for the government to respond to that this is about waiting in line.

[00:36:28] Speaker 03:
I want to just clarify on that point.

[00:36:33] Speaker 03:
If the policy were reframed so that the only thing that you were challenging was a violation of the policy by officers at the window who, when they get to the front of the line and they're there, they say, oh, you have no appointment?

[00:36:57] Speaker 03:
Go.

[00:36:59] Speaker 03:
is that still within the scope of the injunction that you saw?

[00:37:04] Speaker 01:
So in that case, if they say you can't wait in line, that would be within the... No, they've said they've waited in line, they get to the front, they say no appointment, go.

[00:37:13] Speaker 01:
No, that would be not allowing them to... Because at that point, if the government says that we can't process you

[00:37:19] Speaker 01:
for operational reasons or based on capacity, that's sort of a different question about whether 1225 allows for delays based on capacity.

[00:37:27] Speaker 01:
But this specific injunction is about allowing non-citizens to wait for that inspection.

[00:37:32] Speaker 03:
So you're not asking for an injunction against the practice that I just articulated, are you?

[00:37:39] Speaker 03:
Or what's the answer to that?

[00:37:41] Speaker 01:
I think the answer is yes, they can't tell them to go away.

[00:37:45] Speaker 01:
But the injunction would not compel them to inspect that person.

[00:37:49] Speaker 03:
So what are they supposed to do with them?

[00:37:53] Speaker 01:
They're supposed to allow them to wait because the other part of their policy is that they... They're at the front of the line.

[00:37:57] Speaker 03:
They're at the window.

[00:37:58] Speaker 03:
They're at the... The CBB officer is there and he says, no appointment.

[00:38:03] Speaker 03:
You're gone.

[00:38:04] Speaker 01:
Right.

[00:38:04] Speaker 01:
Which goes to kind of the government's whole theory here is that they don't have to process people or they don't want to, but their policies are... But you want an injunction against that.

[00:38:13] Speaker 03:
So what did they... How is the injunction complied with?

[00:38:17] Speaker 03:
What would they do

[00:38:18] Speaker 03:
to comply with the injunction?

[00:38:21] Speaker 01:
Under the injunction, they would allow that person to wait.

[00:38:24] Speaker 03:
And then under their own policies, they're going to just stand there at the front of the line just with their hands folded waiting.

[00:38:30] Speaker 03:
You want them to be processed.

[00:38:33] Speaker 01:
Yes.

[00:38:34] Speaker 03:
At the front of the line, they can't turn them away.

[00:38:37] Speaker 03:
They've got to process them.

[00:38:39] Speaker 03:
That's what you're asking for.

[00:38:41] Speaker 01:
They don't have to process them immediately under our injunction.

[00:38:46] Speaker 03:
You're focusing on the part of the injunction that deals with the back of the line.

[00:38:52] Speaker 03:
But your injunction carries to the front of the line and the interaction at the window.

[00:38:56] Speaker 03:
That's 1225.

[00:38:58] Speaker 01:
No, Your Honor, we disagree.

[00:39:01] Speaker 01:
That's the pre-inspection and processing allowing them to wait.

[00:39:06] Speaker 01:
And to be clear, the government agrees that Section 1225 doesn't apply on the Mexican side of the border at the window.

[00:39:14] Speaker 03:
It certainly applies at the window.

[00:39:16] Speaker 01:
But our injunction doesn't require the inspection.

[00:39:20] Speaker 01:
And that's the one step away.

[00:39:21] Speaker 03:
You said that the injunction wouldn't let them be turned away at the window.

[00:39:25] Speaker 01:
Correct.

[00:39:26] Speaker 01:
But it would not compel the inspection that would follow.

[00:39:30] Speaker 01:
And that's the distinction.

[00:39:31] Speaker 01:
What would happen?

[00:39:31] Speaker 03:
So what can the officer do to comply with the injunction other than process them?

[00:39:38] Speaker 01:
The officer can allow them to wait.

[00:39:40] Speaker 00:
Stand there.

[00:39:41] Speaker 00:
But it seems nonsensical.

[00:39:42] Speaker 00:
I mean, for how long indefinitely?

[00:39:46] Speaker 01:
So that's sort of a different question that's primarily before the AOL 1 panel about how long inspection and processing can be delayed, but that's not before this court or this injunction.

[00:39:57] Speaker 01:
I will say to one point that Judge Collins raised is if you think that it wasn't clear enough at the district court, the appropriate remedy is to remand for the district court to parse this, but it was clear enough.

[00:40:09] Speaker 04:
But Mr. Nutter, I guess I'm not sure what's left of the injunction.

[00:40:12] Speaker 04:
If your proposed injunction applies to non-citizens arriving or attempting to arrive at a port of entry, so they've arrived, that is what triggers the processing.

[00:40:28] Speaker 01:
So that would trigger the statutory dues, but the injunction itself, and to the extent that the proposed order was... How many steps away is that then, removed from...

[00:40:38] Speaker 04:
the processing, if it sounds like it's less than one, if they're at the window.

[00:40:42] Speaker 01:
I would say that's still one step removed because it doesn't actually require the inspection and processing.

[00:40:47] Speaker 00:
What should we make of the language then at ER 45, which states that defendants do not contest the self-imposed obligation to inspect and process

[00:41:04] Speaker 00:
such non-citizens.

[00:41:06] Speaker 00:
So what do we make of that?

[00:41:09] Speaker 01:
So that goes to the text of the government's policies and the text of the government's statutes.

[00:41:15] Speaker 01:
But it doesn't necessarily go to the effect of the injunction.

[00:41:19] Speaker 01:
And that's what 1252-F1 is looking at, is what is the effect of the injunction.

[00:41:24] Speaker 01:
And here, the effect is one step removed.

[00:41:27] Speaker 01:
I know I've gone well over my time, but.

[00:41:29] Speaker 03:
If we're asking you questions, you're allowed to answer.

[00:41:32] Speaker 01:
But that is one step removed under this court's precedent that Alamon Gonzalez expressly preserved in footnote four, and that's the distinction.

[00:41:41] Speaker 03:
Thank you, counsel.

[00:41:46] Speaker 03:
The case was argued is submitted.

[00:41:49] Speaker 03:
And with that, we are concluded our session for this morning.

[00:42:10] Speaker 00:
here.