[00:00:01] Speaker 04:
Good afternoon, and welcome to the Ninth Circuit.

[00:00:04] Speaker 04:
Before we begin, Judge Paez and myself would like to thank once again Judge Katsubai from Oregon for visiting with us. It's been very helpful, and as always, it's been a privilege. Thank you, Judge. Thank you.

[00:00:16] Speaker 04:
I know, is there going to be a split on the petitioner side?

[00:00:19] Speaker 00:
So, Your Honor, I'm for a leaky and plan to use the whole time to discuss the...

[00:00:32] Speaker 04:
Okay.

[00:00:35] Speaker 04:
Okay.

[00:00:37] Speaker 04:
Got it. That makes sense. Okay. Council, whenever you're ready.

[00:00:50] Speaker 00:
Good afternoon, your honors, and may it please the court. Morgan Russell from the ACLU on behalf of Amiki and supportive petitioners. I'll aim to save three minutes for rebuttal, and I'll watch the clock.

[00:01:04] Speaker 00:
Before I jump into why the rule is inconsistent with the statute, I did just want to preface that discussion by reiterating that Amiki's position is that the court does not need to reach the legality of the rule in order to grant this petition.

[00:01:20] Speaker 00:
And we don't think this case is the best vehicle for deciding on the legality of the rule as we noted in our brief Both the East Bay case that's currently pending and right for decision back Before the district court on remand from this court and the MA case that's right for decision in DC present additional claims against the rule apart from the statutory issue that this court asked for briefing on and that includes claims that turn on the administrative record for the rule, which is not before the court in this petition.

[00:01:55] Speaker 04:
So what is happening with the East Bay case? It's in the district court after the remand.

[00:01:59] Speaker 00:
It's in the district court following the remand.

[00:02:02] Speaker 00:
Judge Tiger ordered supplemental briefing last summer once the case was remanded, and those were filed last summer. It's been pending back in the Northern District of California since then, and in the D.C. case, so you know. There was renewed summary judgment briefing following an abeyance in that case.

[00:02:21] Speaker 05:
Let me ask you this. Why would it be...

[00:02:25] Speaker 05:
Why do those cases present a better vehicle?

[00:02:28] Speaker 00:
Our position is just that they present a more comprehensive vehicle to get at all the aspects of the rule in addition to the statutory question. For example, in the transit ban decision, East Bay 2, before this court, that rule was the majority held the rule to be in conflict with the statute and also arbitrary and capricious based on the record in that case.

[00:02:55] Speaker 00:
Another member of the panel, Judge Miller, disagreed on the statutory question, agreed it was arbitrary and capricious based on the record. So our position is just that. There's a likelihood that one side or the other would seek further review whenever the legality of this rule is decided.

[00:03:12] Speaker 00:
Our position is that at least as our interests go, it would be important for there to be a comprehensive vehicle that includes all those issues whenever that further review happens of the rule.

[00:03:25] Speaker 01:
So what additional issues are they? Maybe I'd also ask it from the other side. What makes the other cases, particularly the D.C. case, a better vehicle?

[00:03:35] Speaker 00:
Well, both of those cases present, for example, an argument similar to the argument from the prior transit ban decision from this court that the administrative record for the rule showed that asylum is not actually available in transit countries. And so the rule was arbitrary and capricious because it reached a conclusion contrary to the administrative record. in asserting that asylum was meaningfully available in those places. That's an argument, for example, that turns on facts about those transit countries in the administrative record.

[00:04:09] Speaker 00:
And so, you know, we think it would be important for a case in which the rule, the legality of the rule is gonna be decided and could go up for further review to include that aspect as well, as well as the pure statutory question.

[00:04:25] Speaker 00:
Let me ask you this.

[00:04:27] Speaker 06:
Do you think that our prior cases in East Bay 1 and East Bay 2 foreclosed the rule?

[00:04:36] Speaker 00:
I do. Yes. Yes, Your Honor. We do think the rule is inconsistent with the statute under those decisions.

[00:04:44] Speaker 01:
So then it ought to be a fairly straightforward decision, and yet you would still ask this court not to consider whether the CLP is invalid because of some other cases that might make their way through. Note that I think one of the cases was stayed for quite a long time and for which a decision I think hasn't been made. So at some point, everything will be held up if a decision isn't approached.

[00:05:14] Speaker 00:
Right, Your Honor. So the East Bay case was, there was a stay pending appeal issued by this court. Judge Pius was on the panel.

[00:05:22] Speaker 00:
Then subsequently, There was an abeyance. It came out of abeyance. The case was argued, and it was remanded back to the district court.

[00:05:31] Speaker 00:
As I said, the supplement briefing on remand has occurred. That case is ripe for decision. I realize that the court will do what it thinks it needs to do in deciding this petition. I just wanted to state our position while I have the opportunity.

[00:05:43] Speaker 04:
And so how would you rule to avoid dealing with the rule?

[00:05:46] Speaker 00:
So I think two possibilities, Your Honor. One would be...

[00:05:52] Speaker 00:
Assuming that the court is inclined to reverse on the denial of asylum, we think it would make sense to reverse on the denial of withholding as well, which was based on those same issues, past persecution and nexus, which are the same, the nexus standard being even different. easier a lower bar than the asylum nexus standard and if the court does that we think it would make sense to also instruct the agency on remand to consider in the first instance whether the petitioners qualify for the family unity exception to the rule which this family would appear to potentially qualify for if either of the parents either of the adult petitioners is ultimately found eligible for withholding.

[00:06:33] Speaker 00:
So that's one possibility which we sketched out in the amicus in footnote two. Another possibility could be to hold this petition until the East Bay case comes back to the court on remand if the court were so inclined.

[00:06:48] Speaker 00:
With all that said, if the court does reach the legality of the rule in deciding this petition, the court certainly should hold the rule unlawful. In the two East Bay cases, this court has already held that the government cannot force people to come to ports of entry or to have sought protection in a transit country in order to maintain their eligibility for asylum here in the United States.

[00:07:12] Speaker 04:
So you mentioned earlier that we stayed at the first East Bay pending appeal. What are we going to make of that? Does that suggest that...

[00:07:22] Speaker 04:
precedent doesn't govern any of this and that all that means you know that likelihood of success of the merit is weaker in this case because of the changes in the rule

[00:07:31] Speaker 00:
So the order granting a state pending appeal did not provide reasons. I think even if it had, and even if this was the merits of that same East Bay case, that wouldn't be binding on this panel for the reasons explained in the panel opinion in the East Bay entry ban case, which kind of addressed that issue, sort of the effect of a stay opinion. The state order in the East Bay case was, you know, as I said, didn't provide its reasoning, so I don't think there's much that can be drawn from that.

[00:08:09] Speaker 04:
Well, can we presume for the state, though, that that panel at least thought that the two prior precedents of the entry rule and the transfer rule were not governing...

[00:08:17] Speaker 00:
I'm not sure, Your Honor. I mean, I think one distinction is that at the time that this rule, the circumvention of lawful pathways rule, was sort of in effect at the border as the government's kind of first line effort to, in its words, manage the border. That's not the case now. This rule stopped applying to people who crossed the border on May 11, 2025.

[00:08:48] Speaker 00:
So it's no longer sort of serving that whatever front end.

[00:08:51] Speaker 06:
How many people were affected by the rule? Do you know?

[00:08:55] Speaker 00:
I'm not sure, Your Honor. I don't know if the government knows. I think thousands, tens of thousands of people came in within that two-year period at least. So, you know, everyone who came in during that period has their cases pending in immigration court. They're still subject to the rule. We certainly are. you know, working to try to get the rule vacated through the other cases, and there is urgency in that respect.

[00:09:21] Speaker 04:
Two related questions, if you don't mind. Do you know, because this rule only applies to non-Mexicans, do you know in that period how many non-Mexicans would have crossed?

[00:09:30] Speaker 00:
I don't have that number, Your Honor.

[00:09:32] Speaker 04:
And then, because the rule is over, and I don't know if the government's trying to reinstate it, is there a mootness problem?

[00:09:40] Speaker 00:
Well, I don't think there's a mootness problem, certainly. So the way it works, just to be clear, is anyone who came in, and this is in the regulation, specifically at 8 CFR 1208.33, the last subsection makes clear that anyone who came in during that period, May 11, 2023 to May 11, 2025, you know, who's in that category of non-Mexicans, adults, and family to whom the rule applies. The rule continues to apply to them in their proceedings going forward, whenever those ultimate immigration court proceedings are.

[00:10:12] Speaker 00:
So there's sort of a whole cohort of thousands of people who entered during that period to whom the rule applies.

[00:10:17] Speaker 04:
And maybe another reason why we wouldn't rule, because it would only apply to this petitioner, whereas in the other East Bay case, it would probably be more inductive relief. Would that be true, or...?

[00:10:26] Speaker 00:
Right, we're seeking, in both of those district court cases, the remedy we've sought is vacatur.

[00:10:31] Speaker 04:
That's the remedy that the district court- And here the remedy would only just be for the one petitioner, or could you seek vacatur in this

[00:10:38] Speaker 00:
Well, I don't think we can get vacater. I think if this court were to hold in this petition or another petition for review that the rule is unlawful, then I think that decision would be binding on immigration courts within the Ninth Circuit.

[00:10:52] Speaker 00:
But it wouldn't vacate the rule as such, and it wouldn't affect...

[00:10:56] Speaker 01:
For all of the individuals and noncitizens that are subject to the CLP between that two-year time period, in the absence of any decision about whether the CLP is valid or not, are they still subject to the ongoing procedures for removal under the immigration laws? Meaning, I mean, while we're waiting for the best case, as you might be asking this court to consider, are people also still being potentially subject to the application of the CLP?

[00:11:28] Speaker 00:
Yes, yes, Your Honor.

[00:11:29] Speaker 01:
And so they could be removed while we're waiting for a decision to be made?

[00:11:34] Speaker 00:
Yes, yes, Your Honor.

[00:11:35] Speaker 01:
And I also understand East Bay 1 and 2 address a different rule, not the CLP, and I think that's one of the arguments that the CLP is sort of a different – a different variation of the same species, or at least maybe one of the arguments about the difference between the two. So East Bay 1 and 2 don't do anything with respect to how CLP is being applied now until we address CLP.

[00:12:00] Speaker 00:
Right, so because it's different rules, different agency actions, those decisions haven't, you know, they haven't kind of vacated this rule, this rule is still in effect. We do think that those decisions essentially control the statutory question because in those two cases, This court held that the government, as I was saying, can't force people to come to ports of entry, can't force people to have sought protection in transit countries.

[00:12:25] Speaker 00:
This rule reimposes those same two requirements as its supposed waffle pathways for people to come to the country and preserve their asylum eligibility. But the government can't force people to choose between illegal requirements that it couldn't impose standing alone.

[00:12:42] Speaker 00:
And so we think

[00:12:44] Speaker 04:
But here they combine the two, right? The transit rule and entry rule.

[00:12:48] Speaker 00:
Right.

[00:12:49] Speaker 04:
And then add on like an exceptional circumstance.

[00:12:51] Speaker 00:
Yeah, there's an emergency, a narrow emergency exception. But that emergency exception we also think doesn't distinguish or save this rule.

[00:13:00] Speaker 00:
I see that's my, I have three minutes left.

[00:13:02] Speaker 04:
We'll give you, I mean, yeah, please finish.

[00:13:04] Speaker 00:
Sure. We don't think that emergency exception can distinguish or save this rule either, because in the same way, the government can't require someone to show extraordinary circumstances to get an exception from a requirement that the government couldn't impose in the first place. And we think the Supreme Court's decision in Gall, the United States, is instructive on that point.

[00:13:28] Speaker 00:
I think there is also a second reason I think there's a second reason.

[00:13:36] Speaker 00:
Aside from this sort of problem of imposing two requirements that they couldn't impose in the first place and making people choose between them, we have a sort of second statutory theory, a second reason the rule is unlawful that we think is equally straightforward, which is that Now it's clear from the government's own data that really the only option was for people to come to the port of entry.

[00:14:02] Speaker 00:
And the so-called transit denial pathway is really just a very narrow exception to that clearly dominant kind of entry-based option. method of operation of the rule. So the vast majority of people who were able to overcome the bar, it's because they came to the port of entry with a CBP-1 exception. The government's data shows that both under the prior transit ban that this court held unlawful and under this rule, only a tiny percentage of people have ever been able to satisfy that.

[00:14:35] Speaker 00:
It was 2% of people for nearly the whole year that the prior transit ban was in effect. The government's declarations in the district court cases about this rule showed that it was similarly tiny percentage, some share of 3% or 4%.

[00:14:52] Speaker 00:
So we think in practice, this rule operates as just another entry ban that conflicts with the first sentence of the asylum statute that makes asylum available whether or not at a designated port of arrival.

[00:15:07] Speaker 04:
Let me, if I may.

[00:15:08] Speaker 00:
Yeah, please.

[00:15:09] Speaker 04:
Why don't we just finish the questions and then we'll give you as much time for rebuttal.

[00:15:12] Speaker 06:
Let me just ask you a few questions about looking at the rule in the context of this case.

[00:15:23] Speaker 06:
So the petitioner has a claim for asylum withholding in CAT. Yes, sir. If I'm not mistaken.

[00:15:33] Speaker 06:
So is it okay or is it proper to think about the asylum, request for asylum, to think, well, under the rule, there's a presumption that the petitioner is not eligible for asylum. Right? Is that the way it works?

[00:15:53] Speaker 00:
Right. Presumption is the terminology of the rule. I think in practice it's just really operates as a bar with exceptions.

[00:16:00] Speaker 06:
Okay. So until he can get over that, until the petitioner can overcome that bar, he's not eligible for asylum. Is that right?

[00:16:10] Speaker 06:
Right. He can overcome it by the exceptions or by showing that the presumption is rebutted.

[00:16:18] Speaker 00:
Right, or as we pointed out, one exception that only applies in removal proceedings is the family unity exception, where if the bar would apply, but at least one of the family members can qualify for withholding, and that's the only way. Because withholding doesn't have derivative beneficiaries involved, if the only way for the family to all get to stay is through asylum, then that can kind of kick in as another way for the family to open up the bar.

[00:16:46] Speaker 06:
Maybe this is a question for counsel, for petitioner, but in this case, was the family bar raised at all?

[00:16:55] Speaker 00:
The exception? The exception, I'm sorry. I'm not sure on the record if it was raised. I do know that it wouldn't have applied under the immigration judge's decision below because the immigration judge denied withholding to the whole family, and the family unity exception is only...

[00:17:14] Speaker 00:
is only available if at least one of the lead petitioners, one of the parents who can have the kids as a beneficiary would qualify for withholding. So that's why it wouldn't have been available below under the agency's you know, basis for decision, but if this court reverses as to withholding and as to asylum, it could be available, and so that's why we think it could make sense for the agency to address that in the first instance if this court does reverse as to both withholding and asylum.

[00:17:45] Speaker 06:
Okay, so the BIA denied the petition primarily on the basis of no proof, prior, no past persecution, what happened was it didn't rise to the level of persecution, and there was no nexus.

[00:18:01] Speaker 06:
If we were to conclude that both those determinations were supported by substantial evidence, then I guess there would be no reason to reach... Right, then the court also wouldn't reach the legality of the rule.

[00:18:13] Speaker 00:
I think that's the government's reason why the court doesn't need to reach it.

[00:18:17] Speaker 06:
We do have discretion, though, whether or not to reach it, correct?

[00:18:22] Speaker 00:
Right, as I said, I just wanted to make our position clear. I understand that the court can decide how it wants to handle the case if it does decide to reverse on asylum.

[00:18:35] Speaker 04:
The prior rules, the entry rule and transit rule, do they have this rebuttable presumption? I thought it was just a flat-out bar, right?

[00:18:42] Speaker 00:
Right. I mean, it's phrased as a bar maybe more clearly in those rules. You know, I would note that in the prior transit-based rule, there was an exception. There was an error exception there for... trafficking victims. So it's not the case that there were no exceptions in those prior rules. I don't think the rebuttable, the framing as a rebuttable presumption is particularly meaningful. I mean, one thing is that's only, even that rebuttable presumption language is only the rules terminology for the emergency exception.

[00:19:16] Speaker 00:
The other kind of, the transit denial exception or You know, the supposed exception for parole programs, those, as I understand it, are just kind of phrased as exceptions or ways to overcome the bar, whereas it's the emergency exception that's phrased as a rebuttal ground.

[00:19:36] Speaker 04:
Oh, it's just the emergency exception that can be rebutted? It's not the whole eligibility?

[00:19:43] Speaker 00:
I believe that's the part of the regulation that's phrased specifically as a rebuttal ground.

[00:19:50] Speaker 01:
And all of these questions turn on the first step of determining asylum, which is eligibility to even apply, as opposed to the merits decision.

[00:20:01] Speaker 00:
Well, eligibility, I think eligibility on the merits, yeah, right. It's a bar that would deny people eligibility regardless of the merits of their individual case. Obviously, as in this case, the agency could kind of rule in the alternative. That's what happened here. They said on the merits, we're denying based on past persecution and nexus, and then we're also saying and the alternative that would be barred by the rule?

[00:20:28] Speaker 01:
Sure, and I'm just sort of rolling back to the original question that we were discussing, which is the difference between whether CLP is supportable under the statute or not. And it seems like all of this really needs – in the context of the government's – of the Attorney General's discretion – it's much more limited with respect to step one, eligibility to apply for asylum, where there's maybe a different set of rules for discretion or determination of getting asylum or having asylum denied.

[00:21:05] Speaker 00:
Yes.

[00:21:06] Speaker 01:
And I want to make sure that there's a very, I think, pretty clear limit as to what the Attorney General is allowed to do as it relates to whether non-citizens can apply in the first instance.

[00:21:21] Speaker 00:
Yeah, I think I understand the question now, Your Honor. My apologies. So yes, we think the government argues here their primary defense of the rule is that they can draw on their ultimate discretion to deny asylum even to eligible non-citizens to give them some more leeway or power in adopting eligibility rules like this one. And I think that this court's precedent squarely forecloses that argument as well.

[00:21:49] Speaker 01:
I mean, 1158 is pretty clear about placing modifications or limits to eligibility only so long as it is consistent with the INA.

[00:22:07] Speaker 01:
And so it is a limit of authority. I think it's been understood to be based on precedent that it is a limit of the Attorney General's authority to determine eligibility to apply for asylum in that first step analysis.

[00:22:24] Speaker 00:
Yes, Your Honor. So this court held, and specifically in the transit ban case, rejected exactly the kind of discretionary argument the government makes here, quoted the government's brief saying almost word for word what it says here, that asylum is always a matter of executive discretion, never of entitlement, said that's different from the power to adopt regulatory eligibility bars because that power to adopt regulation Regulatory bars is constrained by Congress's requirement in section 1158 b2c That such regulations be consistent with the entirety of the of the asylum statute and the court said that Kind of allowing the government to use its ultimate discretion to give it additional leeway and adopting those bars would make that consistency requirement in section b2c superfluous

[00:23:12] Speaker 04:
So what I always find fascinating, though, I mean, I think you would concede that the government can use the fact of the entry, illegal entry outside the port in the individual case, right, as a discretionary factor in denying asylum. But if they put it in paper beforehand, then that's inconsistent. I've never understood that argument.

[00:23:35] Speaker 00:
So I think what the board and this court have long held is that manner of entry can be one factor at that ultimate discretionary stage. But even then, the board has said it can't be dispositive. This court has cautioned that it is worth little weight. And so it has to be kind of at most one factor in that holistic totality of the circumstances determination at the discretionary stage.

[00:24:00] Speaker 00:
And I think this court has properly distinguished that kind of holistic analysis at the discretionary stage from a bar at the eligibility stage?

[00:24:09] Speaker 04:
Wouldn't one argument be that this rule does consider other factors as well? It's like if you met, you know, any of these other emergency, medical emergencies, all the other exceptions that they talk about. So it is not just the factor of entry at the port, it's other factors as well.

[00:24:26] Speaker 00:
Well, I don't, I really don't think it's, I really think this is worlds away from the kind of holistic totality of the circumstances analysis that Matter of Pula requires and that this court has upheld and supported. I mean, in reality, people needed to come to a port of entry unless they could show one of a couple of exceptions.

[00:24:51] Speaker 00:
The parole exception actually was not available to the people who were subject to the rule, so that's a quote-unquote exception for people who aren't subject to the rule in the first place. I don't think that gets the government anywhere. The transit denial exception is kind of one other possibility, but that's only ever been satisfied by a tiny percentage of people, and those kind of very tiny exceptions, I think, this court didn't find relevant in the transit ban case. It had a small exception like that. The Supreme Court has not found it, those kind of tiny exceptions, to be matter in cases like the National Federation of Independent Businesses cases, a case that we cited about the OSHA COVID vaccine mandate.

[00:25:34] Speaker 00:
And that leaves the emergency exception. So really, it's this port of entry requirement, one tiny exception for transit. this emergency exception that is an exception to this port of entry requirement that the government can't impose in the first place.

[00:25:48] Speaker 00:
So I do think it's quite a different setup that is, we think, squarely controlled by the court's prior decisions.

[00:25:56] Speaker 00:
Is there any other questions?

[00:25:57] Speaker 01:
Maybe we should hear from the government. Could I put a bookmark on something?

[00:26:02] Speaker 01:
You started with a fairly provocative suggestion, which is we shouldn't address the CLP here. And I have to say that I'm not sure I either understand or am I convinced by your explanation so far. It's been a bit too vague. You don't need to answer it now, but when you come back on your additional time, I'd like for you to hit me over the head with a clear explanation as to why you don't think we should be touching the rule in this case because other cases are better postured.

[00:26:34] Speaker 01:
Now, again, you don't need to answer it now, but I'm going to give you an opportunity.

[00:26:36] Speaker 00:
Can I take one quick stab at it now, Your Honor? Well, I think our interest is in getting this rule vacated and...

[00:26:44] Speaker 00:
keeping it vacated and we think the best way to ensure doing that, like if we could decide the cases the way we wanted to decide them, we think the best way to ensure doing that in a way that produces the most the strongest decision with the best chance of surviving any subsequent review would be in one of those other cases.

[00:27:11] Speaker 01:
So I do understand that's the interest that you've described, but I need you to be granular with me. I don't understand at this stage why you think it isn't the best way or why you think another case is the best way, eliminate the qualitative adjective. I want you to tell me specifically what is at stake, what decisions would expose this case to something that you wouldn't like as opposed to those other cases. Specifically, but I want to defer the time left and hear from the government next.

[00:27:41] Speaker 00:
I think what I would say is very concretely, I would point to the example of Judge Miller in the transit ban case, who did not agree on the statutory holding that this court reached, but did agree that the rule was nonetheless illegal because of the fact that it wasn't supported by the administrative record. We think...

[00:28:01] Speaker 00:
either before this court or another court should the rule be reviewed. There may be jurists who might share that inclination, and that is one example of why we think one of the cases that present those claims as well would be the best vehicle to resolve the... Is that the only sort of tactical consideration?

[00:28:24] Speaker 00:
I think that's kind of maybe the most concrete one, Your Honor.

[00:28:29] Speaker 01:
Concrete is yet to be cured, though, so I might still pepper you with some questions when you come back.

[00:28:36] Speaker 04:
Absolutely, Your Honor. Thank you. Thank you, counsel. We'll hear from the government now.

[00:28:40] Speaker 04:
George?

[00:28:46] Speaker 02:
May it please the Court, Matthew George for the Attorney General. I'd like to start out, I know the court invited Amicus to participate in both his supplemental briefing and the argument today, but the government does have a concern when now Amicus is the only participant in argument today. It raises some of the concerns about case or controversy and people without a stake in this litigation. Indeed, there's an attorney here representing petitioners who have a direct stake in this litigation who did raise this, and now that attorney apparently is not going to make any argument before the court either about this rule or about the merits of the case.

[00:29:24] Speaker 02:
The government has a concern with that. The court may do with it what it will.

[00:29:29] Speaker 06:
Well, any way you cut it, the rule is here.

[00:29:33] Speaker 02:
But at the same time, now essentially all the argument the court has heard is from the same third party that's arguing in these other cases.

[00:29:42] Speaker 06:
The petitioner filed a supplemental brief as well, and the petitioner addressed the same arguments in his own way.

[00:29:51] Speaker 02:
That's true, but the court just heard 20 or 30 minutes of argument from not the petitioner.

[00:29:57] Speaker 04:
What's wrong with inviting amici? Don't we do that all the time?

[00:30:00] Speaker 02:
It's more where a petitioner is presenting nothing in this case. That's more the government.

[00:30:03] Speaker 04:
But he has presented something.

[00:30:05] Speaker 02:
But not today at argument.

[00:30:08] Speaker 02:
Maybe that's a small point. That's just a point the government would like to make.

[00:30:11] Speaker 01:
Although you started out with the small point, perhaps not your biggest point. So why should it be treated as a bigger point than you suggest?

[00:30:21] Speaker 02:
Well, to some extent, yes. I mean, some of the concerns that the court has had in the past with some of these rules or these regulations, are standing and case for controversy and sort of these organizations that are bringing these challenges rather than people with direct stakes in the litigation. So here we have someone with a direct stake in this litigation who's not making any direct argument to the court. Yes, he filed a supplemental brief. He's not making any oral.

[00:30:48] Speaker 02:
Right.

[00:30:49] Speaker 02:
And I recognize that distinction.

[00:30:51] Speaker 04:
Yeah, maybe, I mean... That is something that's new that just happened. If there's something that maybe you could present in the 28J letter if they've got a collision argument.

[00:31:00] Speaker 02:
Look, I don't think we're going to win on it, Your Honor. I'm interested.

[00:31:03] Speaker 04:
I've never thought of that. So if you've got something more, I think we should hear it. But let's, I think, focus on the merits.

[00:31:10] Speaker 01:
Alternatively, we can invite Mr. Aho to make a comment.

[00:31:15] Speaker 01:
That was tongue-in-cheek, Jeff. Okay.

[00:31:20] Speaker 02:
It's just strange as someone who's done many arguments and with amicus many times, not particularly this one, but when the court directs them to divide time and there's no division, it's zero and 15 or something. I'm surprised by that. That's unusual. It's unusual.

[00:31:35] Speaker 04:
There's something to it. Just let us know.

[00:31:37] Speaker 02:
Thank you, Your Honor.

[00:31:39] Speaker 02:
Going beyond that, the government does, I think, agree with amicus here in that this is probably not the best case to address this issue. this rule given the alternative merits decision that the immigration judge and board made in this case.

[00:31:54] Speaker 01:
Do you agree, though, that the other cases that Vika's counsel described would be better cases?

[00:32:03] Speaker 02:
They're better in some senses. This one is better in the way that there is someone with a direct stake in the litigation who actually has raised the argument, and so some of those concerns about organizational standing and case or controversy and all that aren't present in this case, and kind of some of the reasons that Amicus mentioned earlier about the breadth of the ruling.

[00:32:25] Speaker 02:
I think the government would probably prefer a decision from this court, maybe not in this case, but... Rather than vacating the rule in toto, which might happen with some of these district court cases, and then sort of litigating from that, this decision would cover essentially all of the Ninth Circuit, assuming, I don't know if the court would publish it or not, and that might affect what reach that might have with the rule as well. I assume it would immediately go en banc, no matter if the court were to, probably whatever the court would do.

[00:32:58] Speaker 02:
But so. I have to say something will go on.

[00:33:01] Speaker 06:
Do you know, are there any other three judge panels either here in the Ninth Circuit that have this case? I mean, I've seen this rule come up.

[00:33:08] Speaker 02:
Right.

[00:33:09] Speaker 06:
In other cases, we've said we're not going to reach the issue because we're denying the petition. Aren't there other cases that have this?

[00:33:18] Speaker 02:
I'm not familiar with them, Your Honor. There may very well be. And probably the ideal case for addressing this rule would be one where the agency didn't make alternative merits findings. I don't know if that would ever occur. And that's, I think, something really important for the court to look at when considering this rule. A lot of the litigation, the East Bay and the MA and the district court, look at this rule in the abstract, just on an administrative record and all that kind of stuff. Here we have this rule applied to an actual litigant in the course of proceedings.

[00:33:51] Speaker 02:
And the court can see how this rule is actually applied. I know some of the discussion was between application and eligibility and maybe even confusing those terms.

[00:34:02] Speaker 02:
The rule does say it applies to eligibility. It doesn't apply to applying for asylum. And this case illustrates that fact. Here, petitioners were able to apply for asylum. They had a full hearing on the merits of their claims. And then when it was time to make a decision on those claims, that's when the agency applied the rule and said, well, You're not eligible for asylum because of this rule, but I'm also going to make an alternative merits finding on asylum. And that's the only issue really before the court on merits is asylum.

[00:34:34] Speaker 04:
Wait, so now I don't understand why the government then doesn't think that this is best vehicle. Because there's none of the standing problems with organizational standing, which I've said my piece on, and we've got the facts of that.

[00:34:46] Speaker 02:
Right. It's more in consulting with my superiors, sort of strategizing and trying to figure out how do we want things to proceed and all of that.

[00:34:59] Speaker 06:
So you would prefer to see, as Amicus does, that one of the district court cases work its way through the system?

[00:35:09] Speaker 02:
I can't say for sure that's what the government wants. I don't know.

[00:35:15] Speaker 02:
That's going to happen probably no matter what.

[00:35:16] Speaker 01:
It would also seem that if I accept Amiga's counsel's concerns about this case, you would want us to make a decision on this case because it's on rockier ground if it goes further up on reviews.

[00:35:34] Speaker 01:
I mean, rockier ground in terms of the merits or rockier ground in... I mean, maybe either, but I imagine... I mean, so this case, I think from the way in which you're describing it, perhaps as I think his counsel is describing it, if the administrative record is really at issue, then this case could just simply be reversed on those grounds alone as opposed to even addressing the rule. Oh, talk about the merits of this case. Yeah.

[00:36:00] Speaker 02:
If that were the case... Perhaps here that's not an issue, that the record does not compel the conclusion that the petitioners are eligible for asylum.

[00:36:10] Speaker 01:
Do you want to talk about the legal issues here? Why do you think the Attorney General has the discretion in light of 1158's restriction about adopting rules that must be consistent with INA?

[00:36:27] Speaker 02:
Well, there are two things to distinguish between in terms of the statute and this rule. 1158A1 talks about application for asylum versus eligibility is what the rule talks about, and then B2C talks about restrictions on eligibility for asylum.

[00:36:46] Speaker 01:
And when you say eligibility, are we talking about the knocking on the door, sort of metaphorically speaking, as opposed to...

[00:36:53] Speaker 01:
Actually, I don't want to spend too much time describing the metaphor, so I'll take that one back. But the eligibility to apply.

[00:37:00] Speaker 02:
Well, I want to be very precise with words here about ability to apply versus eligibility to receive. And so this case illustrates the fact that there was no restriction on ability to apply for asylum. Petitioners applied for asylum. There was no ban on that. There was no application of a rule or a regulation until it was time for a merits decision.

[00:37:28] Speaker 01:
That's when the immigration judge... And that's the unique posture of this case.

[00:37:31] Speaker 02:
That's how it would probably work in every case. There would be no ban on submitting an application because these applications are for asylum, for withholding, for protection under the regulations implementing the Convention Against Torture. So it's a unitary application, and then the immigration judge is going to Is there a question?

[00:37:51] Speaker 06:
No, go ahead. I'm sorry.

[00:37:52] Speaker 02:
It's a unitary application, and then the immigration judge is going to have a merits hearing on all of the claims and review all of them, as happened here, and then only when it's time for a decision on the merits of those claims is that ban going to be applied or that bar, and that's because now someone's not eligible.

[00:38:11] Speaker 06:
A version of this argument was advanced in East Bay 1, the entry case, which the panel said, this really doesn't make any sense because...

[00:38:20] Speaker 06:
One hand here says, oh, yeah, you can apply. The other hand over says, uh, no, you're not eligible.

[00:38:29] Speaker 06:
Right.

[00:38:31] Speaker 05:
Does that make any sense to you?

[00:38:34] Speaker 02:
Well, I think this case illustrates why.

[00:38:35] Speaker 06:
Which is the government, I should say. I don't want to put you on the spot.

[00:38:39] Speaker 02:
Well, this case is a good illustration of why that's not the absurdity the court kind of mentioned before. And I think that's some of the. the drawbacks of litigating some of these things in that sort of abstract theoretical way is you don't see how the agency actually applies these rules. I mean, compare it to say the one year bar on asylum when someone doesn't apply within one year of arriving. It's done the exact same way. They have a full merits hearing on their application and then it's at the end that they say, well, you didn't apply within a year so I have to deny you asylum.

[00:39:10] Speaker 02:
It's the same thing here. I have to deny you asylum because I have to apply this regulation.

[00:39:19] Speaker 04:
And here we have... So you're saying everyone that's subject to CPL will get a full-blown asylum hearing and they present all the facts and everything?

[00:39:27] Speaker 02:
I can't say for certain. I don't want to make that promise. That should be how it works, assuming they're also applying for, say, withholding and cat protection. The merits are going to be the same for those claims, and so they're going to have a whole hearing on it, and then the agency can then assess of, like...

[00:39:43] Speaker 02:
Maybe you merit asylum. Maybe we're not going to apply the bar because your claim is so strong or something. I don't know how that would work necessarily. I mean, here, obviously, the merits of the claim don't meet the standard.

[00:39:53] Speaker 01:
Did East Bay 1 and 2, they made their way through review to the Ninth Circuit through the district court? Yes, Your Honor. And so this case is arriving. to the Ninth Circuit through the BIA. And that's also one of the reasons why, as I'm understanding your argument now, that's one of the reasons why this case isn't postured appropriately to review the CLP directly because of the administrative records, the existence of the administrative record and determinations by both the IJ and the BIA.

[00:40:31] Speaker 02:
In terms of, say, APA, whether this rule is promulgated correctly and all that kind of stuff, yeah, those issues wouldn't be able to be presented in this case if that's something the court is concerned with. That would have to come through.

[00:40:42] Speaker 06:
Let me ask you this. And I don't know. There's a lot of issues here, and I haven't really sorted them all out yet.

[00:40:51] Speaker 06:
But suppose we were to conclude that the rule is invalid.

[00:40:59] Speaker 06:
Okay.

[00:41:01] Speaker 06:
Does that preclude the district court litigation that's ongoing?

[00:41:06] Speaker 02:
I suppose.

[00:41:07] Speaker 06:
I mean, all those other issues about APA review and all that, whether the rule should be vacated.

[00:41:17] Speaker 06:
Wouldn't that still be alive and the district court would just have the benefit of a decision from us?

[00:41:23] Speaker 02:
I think my armchair guess would be the district court litigation would still continue, especially given that some of the issues with the administrative record or how it was promulgated aren't present. And so maybe that is still some piece of it that isn't waived or abandoned or something like that in terms of how it was presented to the court. And so all of those would be preserved. I can't say for sure.

[00:41:48] Speaker 02:
The only thing I can say for sure is it probably will continue no matter what, in some form. It would be my guess, regardless of what the court did here. Maybe it would inform the district judge of what to do.

[00:42:00] Speaker 06:
It seems like any ruling here in favor of the petitioner would have to be very narrow. Because we're in a very confined kind of, we have an administrative record. There's only certain things we can look at and do.

[00:42:14] Speaker 02:
Right, and also how the court framed the question in terms of the supplement of briefing that sort of limits the universe, I suppose, of what was argued and what was presented. I think it's all consistent with what Petitioner presented. I believe both to the board and to the court in his opening brief are there.

[00:42:31] Speaker 06:
Right. He argued that it was invalid.

[00:42:33] Speaker 04:
Right. It's just a statutory argument.

[00:42:35] Speaker 02:
Right. Petitioner didn't bring up some of the other, how it was promulgated.

[00:42:38] Speaker 04:
Do you think the arbitrary and capricious is before us? It's a little ambiguous. No. The initial opening brief, I think, mentions arbitrary and capricious.

[00:42:49] Speaker 02:
I'll say I didn't get that read, Your Honor. Maybe that was just how I read it, but...

[00:42:54] Speaker 02:
I didn't pick up on that, but obviously I deferred to the court. The words are in there.

[00:42:59] Speaker 04:
Whether or not it's a full-blown argument is questionable. Can I ask a question on the regulation? So it's a rebuttable presumption, and is it only the three methods under subpart 3 that are the ways to rebut the presumption? Is there any other way?

[00:43:22] Speaker 02:
Well, other than it not applying to the unaccompanied children, aliens with authorization to travel or seek parole, aliens who were denied, there's sort of that class of people who it just doesn't apply to.

[00:43:34] Speaker 02:
Yes, I guess there is the acute medical emergency, the imminent and extreme threat to life or safety, and the victim of a severe form of trafficking. As far as I'm aware, those would be the ways to rebut it.

[00:43:44] Speaker 04:
Okay. I was just wondering if, you know, after hearing this full-blown asylum hearing, could the IJ just say, you know, you've rebutted it through another way, even though it's not one of those statutorily or regulatorily listed ways, but you don't think that's the case?

[00:43:59] Speaker 02:
On the face of it, no.

[00:44:00] Speaker 04:
I suppose... Because it does say, you know, a rebuttable presumption... What is the exact phrase?

[00:44:08] Speaker 04:
A rebuttable presumption of ineligibility for a sign that implies to an A and blah, blah, blah. And, you know, it... So it opens up the possibility that there's other ways to rebut it.

[00:44:17] Speaker 02:
Certainly silent on whether that's an exclusive list. Correct.

[00:44:20] Speaker 04:
That's a good way to say it. But you don't have a view if it's... No.

[00:44:24] Speaker 02:
I think this is the first time I've ever seen it actually applied. And...

[00:44:29] Speaker 06:
Well, there are other cases where it's been done.

[00:44:33] Speaker 02:
There are. This very panel had another case with it and decided not to decide this issue and decided the merits of the petition. So that's what we would urge here.

[00:44:41] Speaker 04:
And then can you give me an argument on why you think East Bay 1 and 2 are not controlling here and must lead to the outcome that this regulation is unlawful?

[00:44:53] Speaker 02:
Well, I think as the court has already gotten into a little bit, those are different arguments. regulations that were passed. This is not the exact same regulation. It does have this rebuttable presumption. It is not a categorical ban. That's probably the biggest thing, at least with the very first transit ban or port of entry.

[00:45:12] Speaker 01:
Isn't it a de facto categorical ban? With the numbers that we were discussing earlier, it effectively amounts to a ban that's categorical.

[00:45:22] Speaker 02:
I'm not sure that's how a court would say it's categorical if the text doesn't say categorical. I mean, maybe the numbers are small. Well, form over function or function over form. Is that a canon of statutory interpretation?

[00:45:33] Speaker 01:
Well, that's just me spouting at the moment.

[00:45:37] Speaker 02:
It's not one I'm familiar with. There's a rebuttable presumption, and aliens can try to rebut the presumption, and maybe there are other factors that may be meritorious that they could present to an immigration judge that may carry the day. I don't know. Obviously, it's silent on whether that's an exclusive list.

[00:45:55] Speaker 01:
Now, I think we're going to get into a discussion about terminology, and we were touching on it a bit before, but this non-exclusive list really is a It's a function of the merits-based decision on whether to deny a grant asylum, not on whether one is eligible for asylum.

[00:46:17] Speaker 01:
I think I need to drill this in, and I need your help in drilling this in with my understanding of it more. I've understood this to be a two-step analysis, a process.

[00:46:28] Speaker 01:
are you allowed to apply? And I get you're going to say that anybody can apply, but there is a question of sort of eligibility first. And if you're eligible based on the CLP rule, then you still have all of the other factors and considerations an IJ can assess in determining whether asylum should be granted.

[00:46:49] Speaker 02:
Well, that's the case for anyone, regardless of this rule, of whether you merit asylum. So let's take that out.

[00:46:55] Speaker 01:
And we're not talking about merit at all. But I just want to make sure that If I'm looking at these two spheres, we're setting one aside, which is the merits-based asylum decision determination. And we're only dealing with it. And CLP only deals with, are you eligible to apply? And I want to make sure, are we using the same language here?

[00:47:13] Speaker 02:
Well, I would say it's not eligible to apply.

[00:47:17] Speaker 02:
You can apply. There's no ban on applications. It's then whether you're eligible to receive asylum or be granted asylum.

[00:47:23] Speaker 01:
Okay. And I appreciate that nuance is important. The eligibility to receive is understood. And that's where CLP comes into play. And that's also where the government is, the Attorney General is restricted in what conditions or restrictions can be placed on the eligibility to receive. That doesn't exist in the other sphere that we're not going to talk about, which is the determination.

[00:47:50] Speaker 01:
On the merits. On the merits. Right.

[00:47:52] Speaker 02:
Well, I mean, Congress did anticipate the Attorney General making restrictions on eligibility. That's B2C.

[00:47:59] Speaker 06:
As long as it's consistent. Right, as long as it's consistent.

[00:48:02] Speaker 01:
And as long as it's consistent is also understood and means a restriction on authority, on the Attorney General's authority. It's not a grant of expansive authority, but a limit on what the Attorney General can do.

[00:48:20] Speaker 01:
I suppose that's one way of looking at it, yes. I think it's an accurate way of looking at it. Because in contrast, in the second sphere, the merits-based decision, that same limitation isn't present as it is in 1158, I think, B2C.

[00:48:40] Speaker 02:
I'm having trouble determining what you mean by merits.

[00:48:42] Speaker 01:
The second sphere that we're not talking about. The discretion for the Attorney General to determine whether to grant or deny asylum. On the merits. On the merits. That's what I mean when I say merits-based decision.

[00:48:59] Speaker 02:
Right. That would be after a determination of whether this rule applies.

[00:49:03] Speaker 01:
My point is that the statute is clear that there is a restriction on the Attorney General's discretion when adopting rules that limit or condition eligibility to receive asylum. That does not exist on the other side of the equation, which is the merits-based decision.

[00:49:25] Speaker 02:
Yes. I think if I'm understanding, Your Honor, what you're saying is So the step one is whether we even get to that second step, I guess.

[00:49:33] Speaker 01:
Is that how you're feeling? This case is all about step one. Right. Okay. But I'm using step two as simply an opportunity to contrast what level of discretion or authority the Attorney General has. They're two different spheres. It seems to me from the statute, Attorney General does have greater latitude in step two than it does in step one. Do you agree or not?

[00:49:55] Speaker 02:
In terms of... I mean, that's also statutorily restricted because an alien would have to meet the statutory definitions and elements of asylum. So that's my hesitancy to say yes. I think in terms of facts and things and maybe we're talking about the ultimate grant in terms of discretion, then I would agree with you, yes. Then the immigration judge could consider whatever he or she wanted in terms of making that decision.

[00:50:21] Speaker 01:
Well, is the attorney general's authority the same in either sphere?

[00:50:25] Speaker 01:
to adopt rules that determine eligibility to receive and eligibility to grant or deny asylum. No. That's your position. Right, and that's because that's what the statute says. Right.

[00:50:36] Speaker 02:
I think we're saying the same thing. I'm not positive.

[00:50:38] Speaker 01:
Well, I think you want me to agree with you.

[00:50:42] Speaker 01:
It's always the case, isn't it? I just see that the scope of authority for the Attorney General as granted by statute is different between the two, but you think they're the same? No.

[00:50:57] Speaker 02:
No, in terms of there is that.

[00:51:01] Speaker 02:
In terms of putting, I guess, explicit limits on eligibility, they must be consistent with the rest of 1113.

[00:51:10] Speaker 01:
Is that same language, consistent with, also in determining eligibility, excuse me, the grant or denial of asylum considerations?

[00:51:20] Speaker 02:
I think based on that question, no.

[00:51:23] Speaker 02:
I think we're on the same, in terms of the question I'm answering, you're asking and I'm answering.

[00:51:27] Speaker 01:
I'm going to stand down.

[00:51:31] Speaker 01:
I don't want to consume all the time.

[00:51:33] Speaker 06:
So let me just shift this just a little bit in a different direction for a moment. And maybe I should have asked these questions of petitioner's counsel.

[00:51:46] Speaker 06:
Shifting to the eligibility determination, apart from...

[00:51:51] Speaker 06:
rule that we've been discussing on the merits. So if I recall, we didn't hear argument in this case when we were in Seattle, so we didn't get a chance to hear from the parties about the agency's decision on the merits, because they made an alternative decision, correct? Correct, Your Honor. Okay, and the agency focused on two, with respect to asylum, two primary issues, if I remember correctly. I may be wrong. One was What happened here didn't rise to the level of persecution.

[00:52:23] Speaker 06:
That's correct.

[00:52:24] Speaker 02:
Okay.

[00:52:24] Speaker 06:
The other was, had to do with, was there a nexus? Correct. And that had to do with whether or not all taxi cab drivers were...

[00:52:39] Speaker 06:
were persecuted or only some of them were persecuted.

[00:52:44] Speaker 02:
Well, the agency found that money was the motivation.

[00:52:48] Speaker 06:
Yeah, so that money... Not any protected group. Right, so that money was what was in play only and not taxicab drivers. No membership in a group. Right.

[00:53:01] Speaker 06:
And that underlaying that was a notion that the board took was that...

[00:53:09] Speaker 06:
they were going to assume for purposes of the decision that taxicab drivers or whatever was a protected social group. They didn't decide that issue. Right. Okay.

[00:53:24] Speaker 02:
I'll just say that would probably fail. I mean, going back to a matter of Acosta, that's never been a group.

[00:53:29] Speaker 06:
But they didn't decide it. But they would have to decide it if we sent it back.

[00:53:33] Speaker 02:
If the court determined that the record compelled a conclusion that membership in a group motivated Placido to extort the money?

[00:53:42] Speaker 06:
Yes. Let me ask you this.

[00:53:47] Speaker 06:
Wasn't this a mixed motive case?

[00:53:50] Speaker 02:
No.

[00:53:51] Speaker 06:
Why not?

[00:53:52] Speaker 02:
Because the agency determined that money was the sole motivation here.

[00:53:58] Speaker 06:
Wasn't there evidence that they were after all taxicab drivers?

[00:54:03] Speaker 02:
They were after money, and that's what taxicab drivers had or perceived to have was money. So in that sense, yes.

[00:54:11] Speaker 02:
And in the same way, are bank robbers persecuting banks just simply because they only rob banks?

[00:54:20] Speaker 02:
That's where the money is.

[00:54:24] Speaker 06:
In your view, there was no evidence that they were also after him because...

[00:54:30] Speaker 06:
Of his status as a taxi cab driver making good money.

[00:54:35] Speaker 02:
There's no evidence in the record that Placido gave, had any care that it was a taxi business versus some other business that was producing money. He wanted money.

[00:54:46] Speaker 06:
Bottom line. Just give me your money. Yes.

[00:54:50] Speaker 06:
Whether it's $1,000, $8,000, or $100,000. Whatever. Whatever it was.

[00:54:55] Speaker 02:
He gave him, you know, he left him alone for years, and then as soon as he gave him the $1,000, now all of a sudden it's $100,000. Now I'm not, basically, I've got a fish on the hook now. Let me go for broke. Let me really go after this guy because now he's responded. It's essentially like a telemarketer, some sort of spam email. Once you respond, that never stops.

[00:55:16] Speaker 01:
You know, as I recall, the record in the...

[00:55:21] Speaker 01:
immigration judge did find the petitioner to be speaking credibly, testifying credibly about what occurred.

[00:55:30] Speaker 01:
There is a portion of the transcript in which the petitioner explains that they were going after all taxi drivers, not just some, and not just based on whether they were rich or poor. The rich or poor issue might have come into play with how much Mara 18 and the other individual Placido was asking for but they were going after every taxi driver and there was evidence in which they did not go after restaurant owners so it was very specifically and precisely focused on taxi drivers as a whole taxi drivers who had the money are perceived to have the money in the same way people who go after who rob banks are they

[00:56:17] Speaker 02:
persecuting banks, or is that they want the money, so that's where they go?

[00:56:23] Speaker 01:
So you like the record to be framed and considered as a focus on money, not a status as taxi drivers. And would you agree, though, that if the focus or this court considers that this record establishes that all taxi drivers were – or preyed upon, and it's a status, a particular social group, that it will rise to the level of a particular social group, as opposed to just simply going after money.

[00:56:51] Speaker 01:
Let me rephrase. So if we were to conclude that, no, this case and the evidence really establishes that Placido and Mara 18 were focusing on the status, the group. They cared about taxi drivers. Taxi drivers, and not just to focus on money. then what's your defense or counter to that?

[00:57:15] Speaker 02:
I would say what in the record compels that conclusion.

[00:57:18] Speaker 01:
Okay. So it's a substantial evidence question for you. Okay. Right.

[00:57:22] Speaker 02:
And it's not just is there some evidence of it?

[00:57:25] Speaker 01:
Oh, I understand it's not just some evidence, but as I understood the record, it appeared to me that either the IJA or the BIA did not address the all-encompassing all-taxi driver testimony.

[00:57:40] Speaker 02:
Well, they did by saying money was the motivation. That's how they say that there's no other alternative. That's what the agency found here was money was the motivation. There's no need to address something else when money was the motivation. There's no other motivation.

[00:57:55] Speaker 06:
Let me just ask one more question. So this discussion that we're having right now, all, let's say we were, actually deciding the case, we would never get to this discussion.

[00:58:16] Speaker 06:
We would only get to this discussion if we were to conclude that the rule doesn't apply.

[00:58:24] Speaker 02:
In terms of a straight application, yes. Our argument was obviously this is an alternative finding. You can bypass the CLP and just address the merits.

[00:58:34] Speaker 06:
Let me ask you this. Is it proper just to bypass this? The CLP and just go straight to the merits.

[00:58:41] Speaker 02:
That's what this panel did in a companion. Well, I mean, it was a mem dispo.

[00:58:45] Speaker 02:
We can do just about anything within reason. Right. I mean, it's an alternative merits finding.

[00:58:52] Speaker 02:
It's a decision on the merits. You don't need to decide something. I mean, that's what the Supreme Court said in Begama's bad. You don't need to decide things that don't bear on the merits necessarily. You can deny this just on the merits of the asylum.

[00:59:06] Speaker 02:
and be done with it. I mean, in a way, you could almost argue that if you reach the CLP and deny the merits or something, like it might be just dicta or something, because it wasn't necessary to decide the case. I'm not saying that's the case, but you could make the argument.

[00:59:21] Speaker 01:
Yeah, OK.

[00:59:22] Speaker 06:
All right. Thank you very much.

[00:59:25] Speaker 01:
Can you describe the evidence in this record that supports the BIA's finding that under the CLP, the petitioners were not subject to imminent extreme danger.

[00:59:38] Speaker 01:
Because in the reverse, if there is substantial evidence of that fact, then they would be eligible under CLP.

[00:59:47] Speaker 02:
Correct. That would be sort of an alternative pathway. That's where they made the claim that they were kidnapped or subject to a threat of kidnapping by the smuggler.

[00:59:59] Speaker 01:
It's actual testimony. No one is controverting that testimony. Right. So at this stage, it's only a determination about whether what occurred, in fact, rose to the level of extreme danger.

[01:00:16] Speaker 02:
I'm not trying to imply that that didn't happen or anything like that. I'm just trying to use vernacular. So they said that they...

[01:00:25] Speaker 02:
had this threat of kidnapping from the smugglers, and then they said that they were able to simply just walk away. And that's what the board said. That's why it wasn't an imminent and extreme.

[01:00:33] Speaker 06:
What was the timing there? Do you know?

[01:00:36] Speaker 02:
I don't. It's really a few sentences, really, of testimony about that that petitioners provided.

[01:00:42] Speaker 06:
Did it all happen a few days before they crossed the border or a few months before they crossed the border? I'm really not sure. Imminent means it's just about to happen.

[01:00:54] Speaker 02:
Like I said, I mean, it's maybe two pages total where they talk about it. And if this is something that they really thought was compelling, they should have raised it to the board. I don't think they made any argument sort of on the merits really. Say testimony was missing or something of like we didn't really fully present the merits of this. our exception to, or our rebutting of the CLP rule here. And so what we're left with is just this really skeletal notion of a threat was made, they were able to walk away, and then the agency concluded that that's not imminent or extreme.

[01:01:30] Speaker 01:
I appreciate your paraphrasing and summary, but I understood the record to be a little more different. The threat was made to pay more money. If you don't, then I'm going to call, I think, the cartel to come pick you up, or I think the terms were screw you up, which was basically to take them up. Then if I understood the testimony correctly, the petitioner testified that they had to wave a bus down in the middle of a road somewhere to be able to escape.

[01:01:59] Speaker 02:
The coyote, but that doesn't sound very imminent if you're able to somebody has to make a phone call and you're able to go wave a bus down I Know in the spite of interest, but if the panel wanted to grant the petition on the merits I

[01:02:16] Speaker 04:
How can you avoid the CLP issue? Well, then I don't think you can.

[01:02:21] Speaker 02:
I think the court has to address it in that instance.

[01:02:23] Speaker 04:
Okay. Or you can't assume CLP doesn't apply or that an exception applies and then grant?

[01:02:31] Speaker 02:
Right. I think you could do that. The only way to grant it would be to decide it on the merits. Decide the CLP issue whether it applies here or whether it's valid or some sort of – resolve that issue and then also resolve the merits of the issue.

[01:02:45] Speaker 04:
You can't assume anything away in the CLP, I guess? You can't assume that exception applied? Okay.

[01:02:52] Speaker 06:
I have one last question for you from my perspective, for me only, and that is one of the alternatives the council proposed was, well, maybe you should just stay this case pending the outcome of the district court proceedings in East Bay 1.

[01:03:09] Speaker 02:
We would not like the court to do that at this stage, given that the court has resolved the companion case already with the same issues, the same sort of on-the-merits type of thing. Who knows how long that could take. That could take years, really, for that litigation to play out, and that's not something the government wants in this case, given that we have an alternative merits decision.

[01:03:31] Speaker 02:
Essentially, they got the remedy here of, like, as though it didn't apply. They have a decision on the merits. This case is only about asylum.

[01:03:37] Speaker 02:
And then we're arguing whether they should be banned from asylum or something, but they have a decision on the merits on asylum.

[01:03:43] Speaker 01:
Okay. Is the Attorney General contemplating any other rules similar to these?

[01:03:49] Speaker 02:
Not that I'm aware of. I know the option was there to extend this rule with this administration, and it opted not to do that.

[01:03:59] Speaker 06:
I thought there was something in place, wasn't there? Didn't they promulgate something that was similar and then it got stayed by a court in D.C.?

[01:04:08] Speaker 02:
Most likely they did promulgate something and it was stayed, Your Honor. I don't know. I don't have exactly on point what that might be. I apologize.

[01:04:17] Speaker 06:
I thought there was, you know, I knew there's so much going on here.

[01:04:22] Speaker 06:
Thank you.

[01:04:22] Speaker 04:
Thank you, counsel. Thank you. Why don't we put five minutes for rebuttal?

[01:04:32] Speaker 00:
Thank you, Your Honors. A few points. I thought I might pick up just on that last question, Judge Paez, to clarify. So after this rule was issued in mid-2023, in June 2024, the Biden administration issued what it called the skewering the border rule, which was basically a reversion to a straight entry-based ban that would apply in what the administration called emergency situations. circumstances so only when there was a certain amount of border crossings but it was in effect for a number of months from mid-2024 onward and then it was vacated by the dc district court um in early 2025 so that was sort of the successor to this rule january 20th 2025 when president trump came back into office issued an even more sweeping proclamation um that barred asylum across the board at the southern border.

[01:05:28] Speaker 00:
That is a subject of litigation that's now at the D.C. Circuit. So that's sort of the state of play of successive kind of asylum ban-type actions.

[01:05:37] Speaker 01:
And that was through an executive order?

[01:05:39] Speaker 00:
Yeah, it was a presidential proclamation, right, without an accompanying regulation.

[01:05:46] Speaker 00:
In terms of maybe kind of working backwards, in terms of, Judge Bumate, your question about...

[01:05:53] Speaker 00:
a way to not reach the legality of the rule.

[01:05:56] Speaker 04:
If they wanted to grant the petition, yeah.

[01:05:58] Speaker 00:
Yeah, so we do think, again, that the court could reverse this to asylum and then remand, assuming the rule is lawful, remand for the agency to consider application of the family unity exception in the first instance. What the government said in their brief is...

[01:06:15] Speaker 00:
The court shouldn't do that because the agency held that the petitioners were ineligible for withholding and waived that argument. But in their BIA brief, the petitioners argued that they established past persecution and that they established nexus. If they're right about both of those things, then those go to both asylum and withholding. So that's why we think if the court remanded reverses as to asylum, it would make sense to reverse on withholding as well, and then remand for consideration of that exception, the family unity exception, that was never considered before by the agency.

[01:06:52] Speaker 00:
So that's kind of the route that we would propose.

[01:06:55] Speaker 01:
And that's all without needing to address CLP?

[01:06:58] Speaker 00:
Right, that's sort of assuming that the rule is lawful you know, I guess sort of a type of avoidance approach.

[01:07:04] Speaker 01:
Assuming without deciding that COP is lawful.

[01:07:07] Speaker 00:
Right, and the agency should get the opportunity in the first instance to see if this exception, which could be available, applies.

[01:07:16] Speaker 00:
On the...

[01:07:19] Speaker 00:
Council mentioned that this rule is not categorical and that distinguishes it from the prior rules. The problem with the prior rules is not that they didn't have exceptions. As I mentioned before, the prior transit-based rule did have an exception for trafficking victims. The problem with the prior rules is that they barred people from asylum for reasons that Congress in the asylum statute indicated were not valid reasons to bar people. This rule does that exact same thing. If someone is barred under this rule, it is because they did not come to a port of entry and did not first get a denial of protection from a transit country.

[01:07:56] Speaker 00:
So I think it operates in the same way in its operative terms and is foreclosed by those decisions.

[01:08:04] Speaker 00:
On the issue of...

[01:08:07] Speaker 00:
eligibility to apply versus eligibility to receive.

[01:08:11] Speaker 00:
As Judge Pius noted, that issue was already decided in the East Bay One case about the prior entry ban. And I think as a practical matter, there's another reason that makes sense, which actually my friend mentioned, which is that The one-year bar, the one-year application bar, which is sort of framed as a bar to applying rather than a bar to eligibility, is applied in the exact same way, the government said, and that's right.

[01:08:41] Speaker 00:
Even those quote-unquote application bars don't actually stop someone from submitting their application to the immigration court. The application is submitted.

[01:08:51] Speaker 00:
And just like in this rule, it then, you know, it goes to their kind of merits hearing with an immigration judge, and it's not applied until that point. So the way they function really is the same. That's even reflected in the asylum regulation, not just sort of a matter of practice in immigration courts, but it's reflected in the regulation. at 8 CFR 1208.13 , which says, for applications filed on or after April 1997, an applicant shall not qualify for asylum if either Section 1158, A2, which is the application bars, or B2, which is the eligibility bars, applies.

[01:09:32] Speaker 00:
So the structure for deciding those bars, even under the regulation, is the same. I see my time is up.

[01:09:39] Speaker 04:
Can I ask one question? So I take it from your opening argument that there's an arbitrary and capricious claim in the East Bay 3 litigation But I was just looking at the brief here, the opening brief. It does mention that this rule is arbitrary and capricious. So what's the difference?

[01:09:58] Speaker 00:
Well, I think one issue is that this court's order for supplemental briefing and amicus, inviting amicus briefing, specifically asked for briefing on the consistency with the statute. So we limited ourselves to a 15-page brief about consistency with the statute.

[01:10:15] Speaker 04:
But the claim is here, though.

[01:10:16] Speaker 00:
Do you... So I think there... So...

[01:10:21] Speaker 04:
That doesn't limit the claims of this case if it's an opening brief.

[01:10:26] Speaker 00:
Right. So what I would say is that's what we as amicus briefed. There are in the East Bay cases Arbitrary and capricious claims that turn on the administrative record, as I mentioned before, kind of the record about the transit country is similar to the prior transit ban case. There's also arbitrary and capricious claims about the kind of the face of the reasoning of the rule.

[01:10:52] Speaker 00:
Those, you know, perhaps this court could reach in that case. The district court kind of addressed those arguments in the prior decision before the previous appeal in the East Bay case, sort of about the reasoning of the rule, its sort of assumption that people, I guess specifically one of the arguments was that the agency is denying asylum for reasons that Congress didn't think were relevant to asylum, like availability of parole programs, things like that.

[01:11:25] Speaker 00:
I think if this court wanted to address those, it might make sense to ask for a supplemental briefing on those specific arbitrary and capricious arguments, you know, unless you think that there is enough there in the prior briefing to get at it. But I would make that distinction between kind of the facial arbitrary and capricious claims that are about kind of the reasoning of the rule and the preamble on its face, which perhaps the court could get to, and arbitrary and capricious arguments based on the administrative record for the rule, which I don't think the court can really get to.

[01:11:57] Speaker 00:
Because that's an APS claim. It's an APA claim that this court's review of this petition is limited to the administrative record for this petition. This petition doesn't include the record for the rule.

[01:12:09] Speaker 04:
The first type of arbitrary increases claim you were talking about, the facial one, is that an APA claim too?

[01:12:15] Speaker 00:
It's an APA claim. I mean, I don't know. I think the court could perhaps...

[01:12:22] Speaker 00:
I don't know that there's anything that prevents the court from considering that kind of facial APA claim in a petition for review.

[01:12:29] Speaker 00:
If it's kind of about the face of the agency action, I think it would be perhaps unusual. But I don't know that there's something that would totally foreclose you from doing that. We do think that the district court cases kind of present the cleanest and most comprehensive cases for addressing the rule.

[01:12:47] Speaker 01:
I did want you to try to come back with something more concrete.

[01:12:52] Speaker 01:
and specific about why you think this isn't the case that should address CLP other than just simply it not being the best one.

[01:13:00] Speaker 01:
Anything else that you can tell me?

[01:13:04] Speaker 00:
I think that's the reason for our concern and the reason that we wanted to say that is we think there is other cases that present kind of additional bases and that could be based give the best chance of kind of getting an enduring decision that.

[01:13:22] Speaker 01:
So cases that proceeded through litigation in the district court as opposed through an appeal to the ninth of a BIA decision are better cases to address CLP in your mind?

[01:13:34] Speaker 00:
Yes, I think so. I mean, because they present these additional aspects of legality of the rule, including particularly claims based on the— Including arbitrary and capricious. Including arbitrary and capricious, and particularly arbitrary and capricious claims that are based on the record. I do think that's a distinction that can become very important in further litigation on the legality of the rule.

[01:13:54] Speaker 01:
And why is that?

[01:13:55] Speaker 01:
Why would it be more important or very important to address this?

[01:13:58] Speaker 00:
Well, it could be important because, as I mentioned before, not all judges would necessarily. I think it's this court's precedent forecloses the government's argument that this rule is distinguishable from the prior ones.

[01:14:12] Speaker 00:
We don't have Supreme Court precedent holding that yet, for example. So we're interested in having the kind of.

[01:14:19] Speaker 00:
most comprehensive and strongest vehicle if this case, if the legality of the rule goes up for further review, which I think there's a good likelihood that it could.

[01:14:28] Speaker 04:
Okay. Well, thank you very much, counsel. Thank you. Thank you both. And this case is submitted.

[01:14:33] Speaker 00:
Thank you.