[00:00:02] Speaker 00:
Good morning, Your Honors.

[00:00:03] Speaker 00:
Bernal Ojeda for the Plaintiffs.

[00:00:07] Speaker 00:
I'd like to start out in sort of reconciling the statute, 8 U.S.C.

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1252, A2A that has a very sweeping language that, for the most part, precludes

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any review by the district court of orders that come out of immigration court, specifically expedited removal orders.

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I had a hard time sort of grappling with that statute and the federal question under 28 USC 1331 to reconcile those two statutes.

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At glance, plaintiffs would have no business being here if 1252A2 were to be adhered to.

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Under 1252A2, a lot of those cases dealt with

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orders after there were merits hearings, meaning evidence was presented, arguments were made.

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This is a situation which is somewhat unique in that the immigration judges for plaintiffs here acted without judicial authority under 8, 12, 25,

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B1 capital B small letters 3i large letters 3i the court needed to

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After a credible fear determination by the judicial, I mean by the officer, the immigration judge had to then address in an expeditious way the credible fear.

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And that was to be done within 24 hours.

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In no case beyond seven days.

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And so there is a seven day directive that is placed upon the immigration judge.

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And then these two cases, the immigration judge or judges went beyond the seven days.

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How do we know that the seven days is actually a limit on authority rather than just like spurring the agency to action as Brock said?

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Well, because they're expedited removal proceedings, the issue becomes that they're supposed to act quickly to then deal with deportation.

[00:03:05] Speaker 01:
Wouldn't it be in your client's interest for it not to go quickly?

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Well, it would be, but they don't have that choice.

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They're placed in expedited proceedings.

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And the way it's set up is that initially the officer makes a judicial finding of credible fear.

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Well, I shouldn't say a judicial finding.

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They make a finding of whether or not there's credible fear.

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If there is no credible fear, then the alien, if you will, can seek judicial review.

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But that has to be done quickly.

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So when it's not done quickly and an order is made, we're left with plaintiff's contention, avoid order.

[00:03:53] Speaker 01:
And I think- Even if you were right, why wouldn't the remedy be go back and have the asylum interview again and then within seven days have the IJ review?

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Under the immigration procedures, once there's an order,

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by the judge as to credible fear, there is no right to appeal.

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I did file a motion to reconsider and that was denied.

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I can't explain why it was denied, but that would be the only remedy.

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Other than that, that's why this complaint was then filed.

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But your remedy with the complaint now, why wouldn't it be just start over?

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Well, in essence,

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I'm asking the district court to make a finding that the order is void and start all over again.

[00:04:45] Speaker 01:
I thought you were asking to somehow get relief from this rather than start over with the asylum.

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Maybe I misunderstood what your relief was, but I thought you were asking for something more like getting asylum now.

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Well, I'm not speaking to the merits.

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You know, that hasn't been really dealt with.

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And it's really not about the merits.

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It's just about whether or not this void order can be relied upon.

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And what do you think should happen if it can't?

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Well, if it can't be relied upon, then

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I think that things would have to start over, and these aliens would be placed back in removal proceedings.

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But I think there is a federal question under 28-13-31, because this arises from a law with the United States.

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And there's a violation of the statute 8-12-25.

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I'll submit on that unless there's further questions.

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Any questions?

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OK.

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You can reserve your time.

[00:06:25] Speaker 03:
Good morning.

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Elissa Fudum on behalf of the United States.

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The district court correctly held that it lacked jurisdiction to hear appellants' collateral challenge to their expedited orders of removal.

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The district's court's conclusion is firmly supported by the language of AUSC 1252A2A, as well as this court's precedent.

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And when I say this court's precedent, I mean both generally and also specifically as to these two appellants.

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Twice these appellants filed or once for each filed PFRs or what they styled as petitions for review before this court, making the same arguments based on the seven-day rule and seeking relief from this court.

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And twice this court dismissed those PFRs for lack of jurisdiction under 1252A2A.

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Mr. Asimov then sought relief from the mandate, and it also moved for reconsideration, which this court again denied on the same basis of jurisdiction.

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The third time should not be the charm.

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This court should affirm.

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Section 1252A2A is clear on its face.

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It expressly divests the district court of jurisdiction to hear any cause

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any cause or claim arising from or relating to the implementation or operation of an expedited order of removal under 1225B1.

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It also bars jurisdiction and actions challenging the procedures and policies adopted to implement that provision, and it does so notwithstanding any other provision of law, statutory or non-statutory.

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This court has repeatedly held that that section bars all claims, statutory, regulatory, and constitutional, that challenge even collaterally an expedited order of removal.

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And that's even when it goes to the validity of the order itself.

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Just to give one example, and there are many, I would point the court to Alvarado Herrera v. Garland, a Ninth Circuit case from 2021,

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in which there was a challenge to an expedited order of removal concerning the fact that there was no signature showing that there was receipt of the expedited order of removal, and there was also a failure for supervisory removal at the intermediate stage.

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So first there is a credible hearing by an asylum officer, then a supervisor signs off on it, and then it can go to an IJ.

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So in that case, that middle level, the supervisory signature,

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had not taken place.

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And in that case, the court still found that a challenge, a collateral challenge to the underlying validity of the order was barred from review under 1252A2A.

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I'd also refer the court to its decisions in Thurgasium, in more recently Mendoza-Linares, and going back further to Garcia-Duran-Cone, which all stand for the solid proposition that 1252A2 bars jurisdiction.

[00:09:28] Speaker 03:
The only exception obviously comes from 1252E, and that provides for a limited review where there's a question as to whether or not the individual is a non-citizen, whether he was ordered removed via expedited removal, and whether he's a lawful permanent resident or has another status exempting him from removal.

[00:09:50] Speaker 03:
Those limited exceptions apply, however, only in the habeas context.

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In this case, the appellants brought claims solely under the APA and have never raised an argument under 1252.

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And I would submit, nor could they, because this court has recently and repeatedly held that the limitations in Section E2 do not encompass procedural challenges to expedited removal orders.

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And here I would refer the court just briefly to Mendoza Linares, United States, the Barajas Alvarado,

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as well as the circuit decision in Thurgasium before it went up to the Supreme Court.

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Appellant's argument seems to primarily be that Section 1331 restores jurisdiction, and that's something that we firmly disagree with.

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In our papers, we noted, and I would repeat here, that numerous courts, both the Supreme Court and this court, have held that notwithstanding clauses

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do preclude jurisdiction under section 1331.

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The seminal case on that was Patchak v. Zink from 2018 from the Supreme Court.

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And in that case, there was a notwithstanding clause that the court found precluded jurisdiction.

[00:11:07] Speaker 01:
Yes?

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If the agency was just blatantly not complying with the expedited removal procedures, would there be any recourse?

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I mean, I would say no.

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There wouldn't if it was simply procedural.

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I mean, I imagine that

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In trying to find the limits, one could concoct a hypothetical that might cause one to pause and say, well, maybe in an extreme situation, it's a closer question.

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And maybe that would require further thought if we kept trying to push the limits to the outer boundaries of reasonableness.

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But the statute is clear.

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And so I would say that the first line answer is no.

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There would be no review.

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Congress was clear.

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We may or may not agree with that.

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We may or may not think it makes sense.

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But ultimately, 1252 A2A.

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is clear, and this court's precedent has been clear as well.

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And I would note that we're really not there with this case.

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We're talking about a procedural error.

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We're not talking about a circumstance where there was some level of review that was denied to these individuals.

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They received review by the asylum officer.

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They received review by the supervisor, and they received review by the immigration judge.

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So in terms of their rights that they had that are coextensive with the statute, they received those substantive rights in terms of review.

[00:12:30] Speaker 02:
What is the detention status of these two individuals?

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They've both been removed.

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I believe that Mr. Gafarov was removed.

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I want to say it was August of 2023, and I want to say that Mr. Asimov was removed.

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It was earlier than that.

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It may have been May.

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I can't recall the exact dates, but they were both removed.

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Mr. Asimov was removed shortly after this court denied the mandate, denied the state, excuse me, and issued the mandate.

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And Mr. Gafarov was removed, I believe, in August.

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So going back to questions that were raised earlier by Judge Friedland, in terms of remedy, I mean, the remedy that the appellant sought when they were before the district court

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was not to start again the expedited removal proceedings, but was to be placed into regular 240 proceedings with all the additional protections that that entails, which I would submit is clearly not what Congress intended when they set up the expedited removal scheme.

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And at this point, they're no longer in the country.

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So I think it would really be a question of what is, even if the court were to disagree with the United States

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both as to the fact that the seven-day period is not jurisdictional, which I can speak to if the court has questions on it, or the jurisdiction to review.

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Ultimately, the court would have to come up with its own coercive sanction in terms of what the remedy is, which is precisely why the seven-day rule is not jurisdictional.

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There's a long line of Supreme Court authority that the courts may not in the ordinary course come up with their own coercive sanction.

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And one of the mechanisms or metrics for determining whether or not a statute

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that contains language that sounds mandatory at first blush is in fact jurisdictional is whether or not Congress specified a remedy.

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Here they did not, and so we'd only be left in a position where we have to guess what should that remedy be.

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But I would submit we don't even get there.

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If I just return to the 1331 points the council raised, I'm addressing an argument from the papers, although he didn't repeat it here, but I think it's important to note there was

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questions raised by appellants as to the applicability of the Patchett case, because in that case, the notwithstanding provision said, notwithstanding any other provision of law suits, and I'm paraphrasing, related to certain land, quote, shall not be filed or maintained in a federal court and shall be promptly dismissed.

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Whereas here, the statute, after saying notwithstanding any other provision of law, provides certain examples.

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It says, including section

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2241 of Title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review, et cetera, et cetera.

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Essentially, what the appellants have argued is that the including should be read instead of as an example, but instead as a limitation.

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and that those should be the only provisions for which jurisdiction is precluded.

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And we would submit that that changes the word, changes the meaning of the word, including in regular English.

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This case has looked at notwithstanding causes in a closely analogous circumstance in Miranda v. Reno.

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That's a 2001 case from the Ninth Circuit.

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There, the question had to do with 1252A2C, which is a neighboring provision, which has to do with detention.

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excuse me, with removal for individuals who have committed certain felonies and looking at the same language for notwithstanding and looking at the 1331 arguments the court held that the divestment of jurisdiction under 1252A2A was explicit and that 1331 did not provide a detour.

[00:16:12] Speaker 03:
There were other cases in the papers cited by appellants, Axon, Enterprises versus Federal Trade Commission, Thunder Basin,

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I would just quickly note that those cases concerned claim channeling provisions and had to do with what residual jurisdiction might remain in the district court notwithstanding a claims channeling provision.

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This case has nothing to do with claims channeling.

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It's pure statutory divestment.

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So we would submit that those cases are not relevant.

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Council also referred to certain cases.

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I believe there was one in Ray Glacial Bay from 1991

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And I think there was another one, Oregon Natural Resources Council v. Thomas from 1996.

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Those both had to do with implied repeal when you have two statutes dealing with a very narrow subject matter and there's not an explicit repeal in the statute.

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But they're contradictory.

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How do you balance?

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those issues.

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That's obviously not this case.

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This is not a question of whether or not 1252A repealed section 1331.

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So again, those cases are not on point.

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Unless there's specific questions as to the underlying merits decision or any other questions, I would just submit that the district court's decision was on all fours with the state of the law for 1252A2 and that the court should affirm.

[00:17:37] Speaker 02:
Thank you, counsel.

[00:17:38] Speaker 03:
Thank you very much.

[00:17:40] Speaker 02:
Mr. Ojeda, we have a few minutes.

[00:17:44] Speaker 00:
Thank you, Your Honors.

[00:17:47] Speaker 00:
Again, if there is no subject matter jurisdiction, we're left with the idea that immigration judges all around the United States could not adhere to that seven-day directive.

[00:18:04] Speaker 00:
And what is the impact of that?

[00:18:10] Speaker 00:
If there's a strict reading of 1252.

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then there's simply no remedy, even though the directives of federal law is not being adhered to.

[00:18:30] Speaker 00:
And that would be the injustice.

[00:18:32] Speaker 00:
And I'll submit on that, Your Honor.

[00:18:34] Speaker 00:
Thank you.

[00:18:35] Speaker 02:
Very much, Counsel.

[00:18:37] Speaker 02:
As a mob, the U.S.

[00:18:40] Speaker 02:
Department of Homeland Security is submitted.