[00:00:00] Speaker 02:
Good morning.

[00:00:02] Speaker 02:
Good morning.

[00:00:03] Speaker 02:
May it please the court, Benjamin Hayes for the appellants.

[00:00:06] Speaker 02:
If I could, I'd like to reserve four minutes for rebuttal.

[00:00:09] Speaker 02:
Keep your voice up, would you, Mr. Hayes?

[00:00:10] Speaker 02:
Yes, please.

[00:00:11] Speaker 02:
Yes, I will.

[00:00:12] Speaker 02:
This case involves a straightforward question of statutory interpretation.

[00:00:16] Speaker 02:
8 U.S.C.

[00:00:17] Speaker 02:
Section 1225A,

[00:00:19] Speaker 02:
deems all aliens who are present in the United States without admission or who arrive in the United States to be applicants for admission.

[00:00:28] Speaker 02:
And 1225B2A provides that all such applicants for admission shall be detained pending their removal proceedings.

[00:00:36] Speaker 02:
And as the Fifth Circuit held just last month, the statute mandates detention without bond

[00:00:42] Speaker 02:
for any alien who cannot show that they are entitled to be admitted, and that is true regardless of how long they are present in the country unlawfully.

[00:00:50] Speaker 02:
The petitioner's contrary interpretation of the statute is not only at war with the statute's text,

[00:00:56] Speaker 02:
but it would reimpose the same perverse regime that Congress sought to discard when it adopted a RIRA and Section 1225 in 1996, a regime in which aliens who intentionally violate law are given preferential treatment in the form, in this case, of bond hearings, while those who enter the United States in accordance with law presenting at a port of entry are subject to mandatory detention.

[00:01:21] Speaker 00:
Well, you suggest that

[00:01:23] Speaker 00:
This is an easy answer, but we do also have a very detailed dissent from the Fifth Circuit.

[00:01:30] Speaker 00:
So we're here anew to take a look at this.

[00:01:35] Speaker 00:
And by my count, there's at least three Supreme Court decisions that use this language seeking admission in the way that the plaintiff class is using here.

[00:01:50] Speaker 00:
I'm having trouble wondering how do we discard Jennings, which is as recent as 2018, Lang May May, 1958, and Landon V. Placencia in 1982.

[00:02:04] Speaker 00:
And they distinguish between an alien already physically present and one outside or at the border or on a ship seeking admission.

[00:02:15] Speaker 00:
Do we just disregard those Supreme Court cases?

[00:02:18] Speaker 02:
So I think the first two are talking more about the certainly are not interpreting this statue, but I think referring to the entry fiction in terms of Jennings, which, which is, as you say, the case that is most contemporary and one that they rely on.

[00:02:33] Speaker 02:
I don't think it's a matter of disregarding Jennings.

[00:02:35] Speaker 02:
I think the point is that Jennings just did not decide this question.

[00:02:39] Speaker 00:
Well, of course they didn't decide the question.

[00:02:40] Speaker 00:
They were looking at the whole issue of timing and a whole different question.

[00:02:46] Speaker 00:
But the court is quite clear there where they say 1225B covers aliens seeking to enter the country at the nation's borders and ports.

[00:03:02] Speaker 00:
and Section 1226 provides the rule for aliens already in the country.

[00:03:08] Speaker 00:
And that's the language we see repeated in these Supreme Court cases, this distinction between 1225 and 1226.

[00:03:18] Speaker 00:
And you're just saying disregard that because that's not the exact

[00:03:22] Speaker 00:
question that was decided?

[00:03:23] Speaker 02:
It's not that it wasn't just the exact question not being decided.

[00:03:27] Speaker 02:
It's not even related to it, right?

[00:03:29] Speaker 02:
The question that the Supreme Court was answering in Jennings was whether 1225 and 1226 can be read using the canon of constitutional avoidance to be read to have a statutory right to a bond hearing.

[00:03:42] Speaker 02:
So whether they mandate detention or whether there's a safety valve that can be read into them.

[00:03:47] Speaker 02:
And that is the only thing that the Supreme Court was addressing there.

[00:03:50] Speaker 02:
The language that Your Honor is referring to isn't part of that analysis.

[00:03:54] Speaker 02:
So it's not the kind of persuasive dicta that's kind of wrapped up in the analysis.

[00:03:57] Speaker 00:
The difficulty is that we have history going back to 1958 where they say, well, the laws have always distinguished between those seeking admission, that's the key phrase here, and those that are already here, whether they be here

[00:04:11] Speaker 00:
lawfully or unlawfully.

[00:04:13] Speaker 00:
Then we have 30 years of practice where that's always been the case up until just now.

[00:04:21] Speaker 00:
So on that point, do we give any credit to the fact that for 30 years this has been the practice, the exact practice of, well, I'll call it the INS for short terms, and the fact that just recently totally jettisoned that position

[00:04:41] Speaker 00:
and has gone the opposite way.

[00:04:43] Speaker 00:
Is there anything to be made of those circumstances?

[00:04:49] Speaker 02:
So I think there are a couple things there.

[00:04:51] Speaker 02:
First, with respect to this, I believe Your Honor referred to a line differentiating between entry and there was already present.

[00:04:59] Speaker 02:
I think that's a line that Congress, through the definition of applicant for admission, was trying to

[00:05:04] Speaker 02:
was trying to obliterate.

[00:05:06] Speaker 02:
What they were trying to do was to put everyone who is entering and present in the country on equal footing.

[00:05:11] Speaker 02:
That's what that definition does.

[00:05:13] Speaker 02:
So I think going back to 1952, et cetera, I think that ERIRA through 1225s was trying to create a new day with respect to the treatment of those coming in versus those in.

[00:05:22] Speaker 02:
They were trying to equalize treatment.

[00:05:24] Speaker 00:
OK, can I just stop you there?

[00:05:26] Speaker 00:
And I appreciate that.

[00:05:27] Speaker 00:
But an important point is that Congress did define

[00:05:33] Speaker 00:
applicant for admission, that's a statutorily defined term, but they didn't define seeking admission and that you can't then I don't think jump to the conclusion that those are somehow synonymous.

[00:05:49] Speaker 02:
So I don't believe they are synonymous but and I'm not jumping.

[00:05:52] Speaker 00:
So what do they mean then?

[00:05:54] Speaker 00:
I mean if you are seeking admission and you are an applicant for admission.

[00:06:03] Speaker 02:
So I think the answer is in section 1225A3.

[00:06:06] Speaker 02:
And 1225A3 says that all aliens, including alien crewmen, who are applicants for admission, and the key words, or otherwise seeking admission, et cetera, shall be inspected by immigration officers.

[00:06:20] Speaker 02:
And so I think the clear takeaway from that language, this or otherwise language, is that applicants for admission are a subset of those seeking admission.

[00:06:29] Speaker 02:
And this is, we've cited cases from the Seventh Circuit,

[00:06:33] Speaker 02:
The 11 circuits, fill a real decision, all of which, including now the 5th circuit analyzing this exact text, which have understood that or otherwise language to create a catch all relationship where that which comes before is understood.

[00:06:46] Speaker 02:
The logic of the sentence means that that which comes before is subsumed within the broader category that comes after.

[00:06:53] Speaker 02:
And so.

[00:06:53] Speaker 02:
that logic applied here means, if you are an applicant for admission, you are therefore seeking admission.

[00:06:59] Speaker 01:
Isn't admission, I agree with Judge McKeown that seeking admission has not been specifically defined, but admission is defined in 1101A.

[00:07:14] Speaker 01:
And that admission is lawful entry after inspection and authorization by an immigration officer.

[00:07:24] Speaker 01:
That definition, does it apply to both applicants for admission and those seeking admission?

[00:07:32] Speaker 02:
Yes.

[00:07:33] Speaker 01:
I would think so.

[00:07:37] Speaker 02:
So, just to finish up my point on the, or otherwise clause, I think that the takeaway from that language is to create a logical relationship between applicant for admission and seeking admission.

[00:07:49] Speaker 02:
And that means.

[00:07:51] Speaker 02:
that the petitioner's argument that seeking admission requires that the alien being going out and doing something or engaged in some kind of affirmative act makes absolutely no sense because if you are an applicant for admission that has whether what the alien is doing

[00:08:08] Speaker 02:
trying to literally seek out admission is totally irrelevant to the definition.

[00:08:13] Speaker 02:
A1 deems aliens who are arriving or present in the United States to be applicants for admission full stop.

[00:08:20] Speaker 02:
It's irrelevant what they are doing.

[00:08:22] Speaker 02:
And the logic of A3 shows that if you are an applicant for admission, you are seeking admission.

[00:08:27] Speaker 01:
How do you answer the position that for 30 years from 1997 to recently,

[00:08:36] Speaker 01:
The Immigration Service, as I always call it because I remember it that way, the Immigration Service has applied 1226 to those people who are in the country and who have surreptitiously entered.

[00:08:50] Speaker 02:
So a couple of points on that.

[00:08:52] Speaker 02:
First of all, I want to distinguish between interpretation and practice.

[00:08:55] Speaker 02:
So we have cited in our brief regulations that were promulgated right after ORIHRA in 1997, which mirror the interpretation of the statute that we've put forward.

[00:09:07] Speaker 02:
So I don't think it's fair to say that the executive has always interpreted the statute in the way that it had been carried out for 30 years before.

[00:09:16] Speaker 02:
I think at the very start, there was an understanding, and the Fifth Circuit discusses this as well,

[00:09:20] Speaker 02:
an understanding of what the statute means.

[00:09:22] Speaker 02:
And nonetheless, the practice departed from that.

[00:09:25] Speaker 02:
But in terms of the 30-year practice, which Your Honor discussed, I don't think that ultimately carries the day.

[00:09:32] Speaker 02:
Obviously, I think when one looks at that, it's supposed to carry the inference that

[00:09:37] Speaker 02:
because it's been done so long, it necessarily is the way it must have been.

[00:09:42] Speaker 02:
I think first line is statutory authority cannot evaporate just as a consequence of disuse.

[00:09:48] Speaker 02:
The Supreme Court said that in Bank of America.

[00:09:50] Speaker 02:
And I don't think this is one of those circumstances where we're kind of like the dog that didn't bark argument really is strong.

[00:09:57] Speaker 02:
It is not as if

[00:09:59] Speaker 02:
There is that it is not as if the executive wasn't using 1225 B2 to mandate detention before.

[00:10:05] Speaker 02:
It has always been understood to mandate detention.

[00:10:08] Speaker 02:
The question there is only scope.

[00:10:10] Speaker 00:
So it's like, you know, I want to go back and push back a little bit on, you keep going back to legislation and ERIRA.

[00:10:17] Speaker 00:
And if you look at the legislative history on that point, what Congress said is it intended to restate the pre-existing scheme

[00:10:27] Speaker 00:
of release on bond for an alien who is not lawfully in the United States.

[00:10:33] Speaker 00:
They said that very clearly in the House report.

[00:10:36] Speaker 00:
So what the legislation was doing was eliminating other disparities in this exclusion and deportation process.

[00:10:47] Speaker 00:
So the Congress is very clear that enacting an IRA, that it's not somehow magically

[00:10:53] Speaker 00:
blessing or changing the scheme that if you were in the United States, you would be entitled to a bond hearing.

[00:11:00] Speaker 00:
So what do you make of that?

[00:11:02] Speaker 00:
We just disregard that?

[00:11:03] Speaker 02:
No.

[00:11:04] Speaker 02:
So I think a few things on that.

[00:11:05] Speaker 02:
I think first of all, as petitioners try to do, they try to draw a distinction based on the legislative history between removal proceedings and detention, as if the legislative history itself was trying to draw that distinction.

[00:11:17] Speaker 02:
And I think that's a false distinction because the detention here is only in service of

[00:11:22] Speaker 02:
removal.

[00:11:23] Speaker 02:
I think DeMore v. Kim and other Supreme Court cases have said that is why it exists.

[00:11:27] Speaker 02:
It facilitates the removal proceeding.

[00:11:29] Speaker 02:
So I don't think there's much to be read into the fact that it just refers to removal proceedings and doesn't single out detention by itself.

[00:11:36] Speaker 00:
Well, I mean, but what it does do is it reinforces pretty clearly that if you're even if you're an alien who's not lawfully in the United States, which is different from someone at the border, you're not in the United States yet.

[00:11:51] Speaker 00:
then you're entitled to a bond hearing.

[00:11:53] Speaker 00:
So I don't even think you need to get to legislative history.

[00:11:57] Speaker 00:
We want to go back to where you started, which was the statute.

[00:12:01] Speaker 00:
And what concerns me with your interpretation of the statute is that basically you have a situation where you're having the exception swallow the rule between 1225 and 1226.

[00:12:23] Speaker 00:
Then I say, okay, maybe I would credit your interpretation, but wouldn't that really render capital E superfluous, 1226C1E?

[00:12:37] Speaker 00:
Isn't that basically superfluous because you're saying, well, it's somebody, it would be an alien who was admitted in error or somebody.

[00:12:47] Speaker 00:
But that would, if we take your interpretation of 1225,

[00:12:54] Speaker 00:
then it seems to me that 1226C1E is superfluous.

[00:13:01] Speaker 02:
Right, so that's what was added to the statute by the Lake and Riley Act.

[00:13:05] Speaker 02:
So, I'll just say a few things about that.

[00:13:07] Speaker 02:
First of all, I don't think it means that there's no work being done.

[00:13:10] Speaker 02:
We've mentioned in our brief that there's still the restriction on parole, which pre-existed the Lake and Riley Act, but the fact that subparagraph E is there and the grounds of inadmissibility are there would further restrict the executive's ability

[00:13:24] Speaker 02:
To release these individuals, so there's still work being done, but I also think the broader point with respect to the lake and Riley act is this that was passed as, you know, to the point about 30 years of practice that was passed against the backdrop of 30 years of practice where the executive was not enforcing 1225 B2A according to its terms.

[00:13:43] Speaker 02:
And so as far as Congress was, you know, Congress knew that is what was going on.

[00:13:48] Speaker 02:
And so it responded to those 30 years by imposing the Lake and enacting the Lake and Riley Act.

[00:13:54] Speaker 02:
And so when it was passed, it was doing a lot of work.

[00:13:58] Speaker 02:
The trouble was that Congress had not been enforcing the law as written.

[00:14:01] Speaker 02:
So I don't think the candidate can.

[00:14:02] Speaker 04:
You mean the executive hadn't been enforcing the law as written?

[00:14:05] Speaker 02:
Did I say Congress?

[00:14:06] Speaker 02:
Yes.

[00:14:06] Speaker 02:
Yeah, exactly.

[00:14:06] Speaker 02:
It was not enforcing the law as written.

[00:14:09] Speaker 02:
So I think that really does kind of take a lot of the force away from the argument that it was surplusage.

[00:14:16] Speaker 02:
And I do think, well, I guess I'll leave it at that with respect to the Lake and Riley Act.

[00:14:21] Speaker 04:
One issue that had been raised in an amicus brief by Mr. Wells was it raises the question of assuming the government's position here is correct.

[00:14:32] Speaker 04:
What about people who have already been released on bond under 1226?

[00:14:38] Speaker 04:
Does the government have a position on that?

[00:14:40] Speaker 02:
As to whether they can be redetained under 1225 B2A.

[00:14:48] Speaker 04:
I think it's presented in this case, but I'd like to know what if the government has my understanding is the limited is this that there is.

[00:14:55] Speaker 02:
I think there's a policy in place.

[00:14:59] Speaker 02:
It's not policy decision in place.

[00:15:02] Speaker 02:
Which requires change circumstances and the like.

[00:15:05] Speaker 02:
I do think there is litigation.

[00:15:07] Speaker 02:
Ongoing about whether read whether that's still good law and whether redetention can occur.

[00:15:13] Speaker 02:
So I don't really know a firm answer.

[00:15:15] Speaker 01:
It may well be that if they have been led on a bond, they can be detained of the alien has changed and that is relevant to being retained.

[00:15:24] Speaker 02:
I position I believe at some point in time in the past that was I'm not an expert on so I don't want to say something that's wrong, but that was my understanding.

[00:15:35] Speaker 00:
But as to the current class members, is my understanding that we have this declaratory judgment, but despite that, the government policy hasn't changed in terms of mandatory detention?

[00:15:50] Speaker 02:
The government's policy has not changed in terms of mandatory... Has the government's practice changed?

[00:15:55] Speaker 02:
The government's practice has not.

[00:15:56] Speaker 00:
So what was it... Basically, the declaratory judgment

[00:16:01] Speaker 00:
has no effect according to the government?

[00:16:03] Speaker 02:
Well, what was occurring was aliens would go and get a bond hearing, but the BIA had in place its decision, the Hurtado decision, which adopts the interpretation of the statute that we advocate, and IJs are bound by BIA precedent.

[00:16:21] Speaker 02:
So that was the issue there, and so that resulted in habeas petitions being filed in district court.

[00:16:27] Speaker 00:
Well, maybe the better way to ask it than when I first did is that the

[00:16:31] Speaker 00:
that despite the declaratory judgment that basically said that there isn't a mandatory detention, the government's position is the only way for a petitioner to seek relief is through habeas.

[00:16:46] Speaker 00:
Is that right?

[00:16:48] Speaker 02:
Yes, so long as the IJs were bound by the BIA precedent.

[00:16:51] Speaker 00:
Right.

[00:16:53] Speaker 00:
Okay.

[00:16:53] Speaker 00:
And that then has resulted in these thousands of habeas petitions being across the country, correct?

[00:17:00] Speaker 02:
Can I reserve my time?

[00:17:03] Speaker 04:
We'll put five minutes on the clock for rebuttal.

[00:17:04] Speaker 04:
Thank you.

[00:17:05] Speaker 02:
Thank you.

[00:17:13] Speaker 04:
Mr. Adams, good morning.

[00:17:14] Speaker 03:
Good morning.

[00:17:15] Speaker 03:
May it please the court?

[00:17:16] Speaker 03:
Matt Adams with Northwest Immigrant Rights Project on behalf of plaintiff and class members.

[00:17:24] Speaker 03:
Defendants' new interpretation

[00:17:26] Speaker 03:
is contrary to the statutory scheme, congressional understanding of the statutes Congress enacted, and 30 years of practice.

[00:17:36] Speaker 03:
Defendant's policy decrees that all persons who are inadmissible are subject to 1225B2A.

[00:17:43] Speaker 03:
But that is plainly contrary to the statutory scheme.

[00:17:48] Speaker 03:
And that is clear because Section 1226 expressly

[00:17:53] Speaker 03:
addresses inadmissible persons, not just deportable persons.

[00:17:58] Speaker 03:
So if you look at 1226, in subparagraphs C1A... What's the difference between being inadmissible and being deportable?

[00:18:07] Speaker 03:
The difference is a deportable person is someone who has already been admitted, so they were admitted at the border, whereas an inadmissible person

[00:18:17] Speaker 03:
has never been admitted at the border.

[00:18:19] Speaker 01:
And neither have right to remain.

[00:18:21] Speaker 03:
And both are subject to grounds of removability.

[00:18:27] Speaker 01:
So they have a common interest.

[00:18:29] Speaker 03:
That is right.

[00:18:30] Speaker 03:
And so they're both placed in removal proceedings.

[00:18:33] Speaker 03:
And what Congress did in 1226C is said for those persons who are inadmissible in subparagraphs A, D, and E, they are not entitled to the bond hearing that they would otherwise receive under 1226A.

[00:18:50] Speaker 03:
In contrast, it's specified to portable persons under subparagraphs B and C, making clear that 1226 encompasses both the portable and inadmissible persons.

[00:19:02] Speaker 04:
Right.

[00:19:02] Speaker 04:
So then the argument is, you know, if all we had was 1226, then it would seem that your clients would be entitled to bond hearings.

[00:19:10] Speaker 04:
But then we have this other provision, which the government says is a more specific one in B2A.

[00:19:15] Speaker 03:
And two points I'd make on that.

[00:19:17] Speaker 03:
One, I don't agree that it's the more specific.

[00:19:19] Speaker 03:
In fact, 1226 C1E is the one that specifies persons who are inadmissible under 1182 A6A, which is those who are present without admission.

[00:19:33] Speaker 03:
That is class members.

[00:19:34] Speaker 03:
Whereas 1225

[00:19:36] Speaker 03:
is specifying a different group, those who are seeking admission.

[00:19:40] Speaker 03:
And as Judge Bea earlier noted, admission is defined by the statute at 1101A13A as seeking lawful entry into the United States after examination by an immigration officer.

[00:19:56] Speaker 01:
Speaking lawful entry, not unlawful entry.

[00:20:00] Speaker 03:
That is correct, but it maintains the position of seeking entry into the United States.

[00:20:05] Speaker 03:
It's still tied to entry.

[00:20:07] Speaker 03:
And what you have... Not to presence.

[00:20:10] Speaker 03:
I'm sorry?

[00:20:10] Speaker 03:
And not to presence.

[00:20:12] Speaker 03:
That's correct, and not to presence.

[00:20:13] Speaker 03:
And of course, that's consistent with this court's holding in Torres V Bar, where the en banc decision made clear that the term of art, applicant for admission, is distinct from other terms like even application for admission, because

[00:20:32] Speaker 03:
An applicant for admission is defining a legal status, whereas an application or seeking to apply is looking at an action.

[00:20:43] Speaker 04:
But isn't someone who is an applicant seeking admission just by operation of law?

[00:20:48] Speaker 03:
The term applicant for admission is a deeming provision.

[00:20:52] Speaker 03:
But Torres v. Barr warned that that cannot be equated with any reference to an application for admission.

[00:21:00] Speaker 03:
And in fact, here it's even more clear, because again, admission, when you're seeking admission, requires, as the district court correctly found, an action.

[00:21:10] Speaker 03:
It's a present tense act of verb, those who are seeking entry into the United States.

[00:21:16] Speaker 01:
But what if Congress says we define everybody who is an alien

[00:21:24] Speaker 01:
as an applicant for admission and we use the same content for admission as the applicant for admission and seeking admission, which is seeking lawful entry into the United States.

[00:21:39] Speaker 03:
But it's clear that those two terms are not synonymous because admission is, as you say, lawful admission into the United States, whereas applicant for admission encompasses any alien who's arriving at the border, whether with status or without status, and those who are present who have not been admitted.

[00:21:59] Speaker 04:
Maybe another way to ask it, I guess, is what do you think B2A does cover?

[00:22:05] Speaker 03:
B2A addresses those individuals who are seeking admission or seeking to enter the country where an immigration officer is determined they're not entitled or clearly and beyond a doubt entitled to be admitted.

[00:22:21] Speaker 03:
So it's all about persons who are encountered at the border who are then found not to be admissible.

[00:22:29] Speaker 00:
And they are automatically subject to detention, correct?

[00:22:35] Speaker 03:
Exactly.

[00:22:35] Speaker 03:
They're subject to mandatory detention in that they are not entitled to a bond hearing.

[00:22:40] Speaker 03:
And this is consistent with the statutory framework that has been in effect since the 1890s, as laid out and detailed by the amicus brief submitted by the legal scholars, that there is a distinction between those encountered at the border and those who are already residing within the country.

[00:22:58] Speaker 04:
I mean, I guess the question is, did the 1996 statute try to remove that distinction through its construct of applicant for admission as somebody who's arriving in, but who also is just in the United States?

[00:23:13] Speaker 03:
And I would submit that it's clear that it did not because where Congress sought to expand detention, it did so clearly in 1996.

[00:23:23] Speaker 03:
And if you look at Eyer, where did it expand detention?

[00:23:27] Speaker 03:
It enacted 1226C, which specified groups of inadmissible persons who, because of enumerated crimes, would thereafter be subject to mandatory detention.

[00:23:40] Speaker 03:
And in addition,

[00:23:42] Speaker 03:
IRA-IRA implemented the new expedited removal scheme, dealing with recent entrants into the country.

[00:23:49] Speaker 03:
And that is where, beyond those held at the border, it created an additional space that mandated detention of recent entrants, that they should be placed in the summary removal proceeding expedited removal and should be held in custody.

[00:24:04] Speaker 00:
Are they considered applicants for admission?

[00:24:08] Speaker 03:
Yes, individuals who are subject to expedited removal are applicants for admission.

[00:24:15] Speaker 04:
But who would be, if B-1 is expedited removal and covers this group of people, what does B-2A cover that's different than B-1 in your estimation?

[00:24:27] Speaker 03:
B-2A, as the Supreme Court explained in Jennings, is the catchall phrase.

[00:24:31] Speaker 03:
So in B-1, they're focused on individuals who are apprehended and have

[00:24:38] Speaker 03:
false papers or made a misrepresentation, other individuals who have someone else's documents.

[00:24:46] Speaker 03:
It also encompasses individuals who are crossing between the ports of entry.

[00:24:51] Speaker 03:
And Congress empowered the agency to place those individuals into expedited removal.

[00:24:58] Speaker 03:
But for those who are inadmissible for other reasons, so on every day of the week, thousands of people present themselves at airports, at the border,

[00:25:07] Speaker 03:
They might have asylum, they might have lawful permanent residence status or non-immigrant visa.

[00:25:13] Speaker 03:
Many of those have a disqualifying criminal conviction.

[00:25:17] Speaker 00:
Are those B2 people?

[00:25:19] Speaker 03:
Those are B2 people.

[00:25:21] Speaker 03:
Some stayed outside of the country for too long, and so they become B2 people.

[00:25:25] Speaker 03:
An asylum, a person who has asylum status might have gone back and visited their home country again, placing their asylum.

[00:25:33] Speaker 04:
Is this only at ports of entry then?

[00:25:35] Speaker 03:
It is not only at ports of entry and that's the language that applicants for admission does, because you still have individuals who are seeking to cross between ports of entry.

[00:25:44] Speaker 03:
And if they're apprehended crossing between the ports of entry, they're also not only deemed an applicant for admission, but are seeking entry.

[00:25:53] Speaker 03:
Now, it wasn't lawful when they started, right?

[00:25:56] Speaker 03:
They're seeking entry between the ports.

[00:25:59] Speaker 03:
But when they're apprehended and they're not granted voluntary withdrawal under 1225A4, they're moving forward with their application to remain in this country, and they are deemed

[00:26:11] Speaker 03:
an applicant for admission who is seeking admission and subjected to detention under 1225 B2A.

[00:26:17] Speaker 03:
Thus, Congress maintained a consistent framework of detaining individuals that were apprehended at the entry as opposed to those who are already in this country.

[00:26:31] Speaker 03:
And of course, that is consistent with Congressional understanding.

[00:26:35] Speaker 03:
When they enacted these provisions in 1996, Congressional findings showed that they estimated there were 2 million individuals in this country who had no lawful status.

[00:26:47] Speaker 03:
Hundreds of thousands of those who had been living here for years with no criminal record

[00:26:53] Speaker 03:
And many who had U.S.

[00:26:54] Speaker 03:
citizen family members, many had homes, Congress made no determination that it would take a drastic change and strip those individuals of their right to a determination, an individualized determination of whether that person should be uprooted for their family, from their homes, from their employment for months on end while they go through the removal process.

[00:27:19] Speaker 03:
And this is further illustrated by the fact that when Congress did expand detention, as it did in 1226C, it recognized the strain that would place on the agency.

[00:27:32] Speaker 03:
It gave the agency up to two years to gear up with the resources for what would be a relatively modest increase in detention

[00:27:42] Speaker 03:
compared to, under defendant's interpretation, this exponentially larger mandate of detention for every person in the United States who is here having lived here without previously being admitted.

[00:27:58] Speaker 00:
A couple questions that relate to the questions that I asked for the government.

[00:28:04] Speaker 00:
When I asked them about this legislative history, which you've referred to in a different sense, where they said,

[00:28:11] Speaker 00:
We're not trying to upend the pre-existing scheme on aliens who can get bond but are in the country.

[00:28:20] Speaker 00:
They said, well, that really related to a different situation.

[00:28:26] Speaker 00:
That related to removal and deportation.

[00:28:29] Speaker 00:
And that's not the situation we're talking about.

[00:28:32] Speaker 00:
So that this legislative history should be ignored basically because it doesn't

[00:28:39] Speaker 00:
reinforce the existing process.

[00:28:41] Speaker 00:
What's your position on that?

[00:28:43] Speaker 03:
Well, I think that's just plainly wrong.

[00:28:46] Speaker 03:
As I believe Judge McHugh and you cited from the conference report reconciling the bills, the congressional report stated that this new provision at 1226A, quote, restates the current provision in section 242A1 regarding the authority of the attorney general to arrest, detain,

[00:29:07] Speaker 03:
and release on bond an alien who is not lawfully in the United States."

[00:29:13] Speaker 03:
It's hard to be more clear that Congress was maintaining the same detention framework that it had before.

[00:29:20] Speaker 00:
After I asked him that question, though, he then pointed me to another provision, and there are many provisions to look at here, admittedly, and that's the otherwise provision.

[00:29:32] Speaker 00:
I'd like to hear your position on the otherwise provision.

[00:29:35] Speaker 03:
Defendants ride back and forth on 1225A3, but that horse does not take them to the well.

[00:29:41] Speaker 03:
First of all, that statute is not addressing detention.

[00:29:45] Speaker 03:
It's a separate requirement dealing with inspection.

[00:29:48] Speaker 03:
But perhaps more importantly, that statute again illustrates the fundamental flaw in their argument and their justification for discounting seeking admission.

[00:30:00] Speaker 03:
they repeatedly assert that an applicant for admission is necessarily seeking admission.

[00:30:08] Speaker 03:
And that is absolutely wrong.

[00:30:10] Speaker 03:
applicant for admission is defined at 1225 A1 to include any alien who is arriving to the United States.

[00:30:19] Speaker 03:
Now this includes lawful permanent residents who are returning from trips.

[00:30:23] Speaker 03:
This includes parolees.

[00:30:25] Speaker 03:
This includes crewmen.

[00:30:28] Speaker 03:
All of those categories by statute are defined not to be seeking admission.

[00:30:34] Speaker 03:
We need look no further than the statute at 1101

[00:30:37] Speaker 03:
A13C makes clear that generally a returning lawful permanent resident is not deemed to be seeking admission.

[00:30:46] Speaker 03:
It says that explicitly.

[00:30:47] Speaker 03:
1101A13B says that parolees are not deemed to be admitted.

[00:30:53] Speaker 03:
Crewmen are not deemed to be admitted.

[00:30:56] Speaker 03:
All of these are categories of applicants for admission who are not seeking admission.

[00:31:01] Speaker 03:
And yet, defendants time and time again assert that it's crystal clear.

[00:31:07] Speaker 03:
And that's why they cite to 1225A3.

[00:31:10] Speaker 03:
And you see that in the introduction of their reply brief, talking about how it's crystal clear that every applicant for admission is seeking admission.

[00:31:18] Speaker 03:
And that's just wrong on its face.

[00:31:20] Speaker 03:
It's completely, it's plainly undercut by the statutory definitions at 1101A13A3.

[00:31:27] Speaker 03:
And it's further undermined by the statute itself when it permits, for example, in 1225A4, applicants for admission to withdraw their application.

[00:31:41] Speaker 03:
So if you have someone who comes to the border or arrives at the airport,

[00:31:45] Speaker 03:
And the deportation or the excuse me, the immigration officer says, well, I don't think your visa is in order because you're here for a temporary visa.

[00:31:54] Speaker 03:
And yet I see that you've been working.

[00:31:56] Speaker 03:
They can be allowed to withdraw their application and get back on the plane and leave or.

[00:32:02] Speaker 00:
That happens at the Canadian border.

[00:32:03] Speaker 03:
And it happens at the Canadian border and the southern border.

[00:32:06] Speaker 03:
So if respondents were correct, those individuals would be subject to 1225B2A because they're applicants for admission.

[00:32:17] Speaker 03:
But the distinction is, once they withdraw their application, they're no longer seeking admission.

[00:32:23] Speaker 03:
And so they're not subject to that regime.

[00:32:25] Speaker 03:
They're not required to be detained.

[00:32:27] Speaker 04:
I think the government says, look, there are other ways to seek admission beyond being an applicant for admission.

[00:32:33] Speaker 03:
Right, but they also say every applicant is seeking admission and basically say they're synonymous though.

[00:32:41] Speaker 03:
They often say they're synonymous, but but for example, I'll just read from their introduction on the first page of the reply brief.

[00:32:50] Speaker 03:
Most notably plaintiffs disregard the import of 1225A3, which makes crystal clear that all applicants for admission are necessarily seeking admission.

[00:33:02] Speaker 03:
That's wrong.

[00:33:03] Speaker 03:
There are many categories of applicants for admission who are not seeking admission.

[00:33:08] Speaker 03:
And that, again, they use that to justify this blinders, this approach of 1225 B2A, where they read applicant for admission in a vacuum, and they disregard the rest, the remaining part of that provision, which states not just that an applicant for admission, but rather that an applicant for admission who is seeking admission

[00:33:32] Speaker 03:
And who are those people seeking admission?

[00:33:35] Speaker 03:
That's where Congress has qualified which applicants for admission are subject to 1225 B2A.

[00:33:42] Speaker 03:
Congress limited it to those who are seeking admission.

[00:33:47] Speaker 03:
And only those who are seeking admission are then subjected to 1225 B2A.

[00:33:53] Speaker 03:
And again, this is consistent with 1226.

[00:33:56] Speaker 03:
And earlier there was discussion about the Lake and Riley Act.

[00:33:59] Speaker 03:
But I want to point out that since the date of its enactment,

[00:34:02] Speaker 03:
1226 has included inadmissible persons.

[00:34:07] Speaker 03:
Since September 30th, 1996, when Iriar was enacted, it included the subparagraphs C1A and C1D, two categories of inadmissible aliens who, because of enumerated offenses, were then disqualified from being eligible for release under 1226A.

[00:34:30] Speaker 03:
And so this conflict under defendant's interpretation has existed from the very get-go.

[00:34:36] Speaker 03:
And again, it's important to understand that 1226C is not an independent source of authority.

[00:34:44] Speaker 03:
Defendants try to give it meaning by saying, well, maybe Congress wanted to make doubly sure that someone who is subjected to 1225B2 should not be released on parole.

[00:34:58] Speaker 03:
But as the Supreme Court held in Nielsen versus Priyap, 1225.6C is simply a limit.

[00:35:07] Speaker 03:
on the detention authority provided by 1226A.

[00:35:11] Speaker 03:
And the Supreme Court reaffirmed that in Jennings, saying that 1226C simply carves out a category of inadmissible persons who would otherwise be eligible for release on bond under 1226A.

[00:35:24] Speaker 00:
It is an- In response, I asked about Jennings, as you know, but the government's response is, well, Jennings isn't this case, and we know that.

[00:35:34] Speaker 00:
Otherwise, we wouldn't be here.

[00:35:37] Speaker 00:
But the government says that we really can't make anything of the distinctions that are drawn there between those who are in the country and those that are seeking admission.

[00:35:49] Speaker 00:
There are several other cases, but what do we make?

[00:35:53] Speaker 00:
They call it dicta, you call it what?

[00:35:56] Speaker 03:
It's certainly not dicta.

[00:35:57] Speaker 03:
If you look at Priett versus Nielsen, that was a holding central.

[00:36:01] Speaker 03:
I mean, that analysis and that holding was central to its opinion because it was making a determination of whether an individual could be subjected to mandatory detention if they were not initially apprehended at the point they had been released from criminal custody.

[00:36:20] Speaker 03:
And the Supreme Court rejected the analysis of the underlying Court of Appeals, and it said that 1226C1 is not a standalone source of authority.

[00:36:33] Speaker 03:
Instead, it's limited to the authority, and it's directly tied to the detention authority provided by 1226A.

[00:36:43] Speaker 03:
So it's holding was clear and the same and and that was not only clear but it was central to the analysis and preempt versus Nelson and that was reaffirmed in Jennings versus Rodriguez where it talks about it as a carve-out and and again Congress is presumed to understand the statutes they enact or amend and if indeed it had been their intent to double down and restrict people from being released on parole under 1225 b2a

[00:37:10] Speaker 03:
then it would have amended 1225B2A, or it would have amended the parole statute at 1182D5, as that parole statute already includes groups that are restricted from being released on parole.

[00:37:25] Speaker 00:
I want to ask you about redundancy, because both parties have talked about redundancy in their briefs.

[00:37:31] Speaker 00:
And if you would give us your position.

[00:37:36] Speaker 00:
But as I read the government's brief, they're saying, well, even if there's some redundancy,

[00:37:40] Speaker 00:
that there are a few areas where you could carve out an independent effect.

[00:37:49] Speaker 00:
of what you would argue would be redundant language in the statute.

[00:37:53] Speaker 00:
What is your response?

[00:37:55] Speaker 03:
My response is that we're not talking about a simple redundancy, but instead, as Judge Douglas said in her dissent in the Fifth Circuit, we're talking about taking a sledgehammer to the statute.

[00:38:04] Speaker 03:
Because under the government's interpretation, they are nullifying entire provisions, entire subparagraphs of the statute.

[00:38:13] Speaker 03:
not just from the Lake and Riley Act, subparagraph E, but also from the original enactments, subparagraphs A and D. In addition to that, they were also then ignoring and rendering superfluous

[00:38:27] Speaker 03:
the term seeking admission within the very statute which they purport to apply.

[00:38:32] Speaker 03:
And they also ignore the remaining language in that statute, which talks about a determination by an immigration officer whether that person is clearly entitled to be admitted.

[00:38:44] Speaker 03:
These are all actions that are occurring when people are seeking lawful entry into the United States.

[00:38:51] Speaker 03:
These are not actions that occur when an immigration officer arrests someone in the interior.

[00:38:56] Speaker 03:
If someone's apprehended at the street, the immigration officer does not determine whether they may be admitted there in downtown Seattle.

[00:39:04] Speaker 03:
No, they then make a referral finding that they're here violation of the law and make a referral to immigration proceedings before an immigration judge.

[00:39:13] Speaker 03:
who under the statute is exclusively entitled to make an admission determination at that point.

[00:39:20] Speaker 03:
And you see that in 8 USC 1229 a sub paragraph a three.

[00:39:27] Speaker 03:
Again, this all is focused on its context and defendants are ignoring the context of what 1225B2 is.

[00:39:37] Speaker 03:
Those individuals arriving at the border who are found not to be admissible, those are the ones maintaining the same statutory framework that has been in effect since the 1890s.

[00:39:49] Speaker 03:
contrasting individuals arriving at the border with those who are already in the United States.

[00:39:55] Speaker 04:
What language in the B2A would you most rely on for the kind of border nexus of the position?

[00:40:03] Speaker 03:
The clearest language is that seeking admission.

[00:40:07] Speaker 03:
So it says that in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.

[00:40:22] Speaker 03:
So it's all about being admitted and seeking admission.

[00:40:26] Speaker 03:
And by definition at 1101 A13A,

[00:40:30] Speaker 03:
Admission is lawful entry into the United States after the examination by an immigration officer.

[00:40:38] Speaker 04:
Would this cover people who do not enter at a port of entry?

[00:40:46] Speaker 04:
It would.

[00:40:46] Speaker 04:
How is that person seeking lawful admission under your definition?

[00:40:51] Speaker 03:
Because even though they might be attempting to surreptitiously enter,

[00:40:56] Speaker 03:
They're apprehended at the border, and at that point, instead of withdrawing their application and returning, they're pressing forward, whether it's a claim for asylum or they have some other defense that they wanna make in, whether it's expedited removal proceedings or standard removal proceedings under B2A, they're pushing forward with their application.

[00:41:17] Speaker 04:
Why wouldn't we characterize your clients as similar?

[00:41:22] Speaker 04:
They weren't apprehended at the border, but nonetheless,

[00:41:25] Speaker 04:
detained and they're now seeking admission.

[00:41:27] Speaker 03:
but they're not seeking admission because their admission is tied, or by definition, to entry into the United States.

[00:41:37] Speaker 03:
They have already entered.

[00:41:39] Speaker 03:
And that is consistent, again, with a framework that has continued for over 100 years.

[00:41:45] Speaker 03:
So the Defendants' Council referred to it as an entry fiction, and that's complaining two separate concepts.

[00:41:53] Speaker 03:
We're not talking about the entry fiction.

[00:41:55] Speaker 03:
We're talking about entry itself.

[00:41:57] Speaker 03:
And the definition of admission includes entry.

[00:42:01] Speaker 03:
So it did not do away, IRA did not do away with entry as being a key component.

[00:42:09] Speaker 03:
Instead, it included that within the definition of admission.

[00:42:14] Speaker 03:
And of course, there's case law, both with the agency, the Ninth Circuit and other circuits that talks about when does someone affect an entry if they're arriving between the ports and

[00:42:25] Speaker 03:
And so that's both in the criminal context and the civil context.

[00:42:30] Speaker 03:
And there's, you know, there's three, it's a three factor test and it talks about whether they're free from constraints when they were entering.

[00:42:37] Speaker 03:
So an entry can still be affected in between the ports.

[00:42:41] Speaker 03:
And if they're apprehended without successfully making an entry, then they're subject to mandatory detention.

[00:42:48] Speaker 00:
How do you get to the United States without going through a port or?

[00:42:56] Speaker 00:
between ports through a drone or something.

[00:42:59] Speaker 00:
I mean, you just get dropped in.

[00:43:00] Speaker 00:
I mean, is there an actual example?

[00:43:03] Speaker 03:
Well, I think maybe I must have misstated something because I'm not asserting that there's a third way.

[00:43:11] Speaker 03:
You're either coming in through a port of entry or between ports of entry.

[00:43:14] Speaker 00:
There's not some way you get parachuted in, so to speak.

[00:43:17] Speaker 00:
No, that's not what I believe.

[00:43:19] Speaker 00:
I'm still thinking on some people's part.

[00:43:20] Speaker 00:
Contemplating here.

[00:43:21] Speaker 04:
Can I ask your position on this portion of the regulation that's been in place since, I think, 1997?

[00:43:28] Speaker 04:
that does seemingly reflect the government's position on this.

[00:43:33] Speaker 04:
What do you make of that?

[00:43:34] Speaker 03:
Yes, I do agree that that regulation from our perspective is confusing because it does have language that would support the government's position.

[00:43:47] Speaker 03:
But at the same time, the enacting regulations also had language

[00:43:51] Speaker 03:
which explicitly stated that applicants for admission would continue to receive bond hearings, didn't be entitled to bond hearings.

[00:43:59] Speaker 03:
And again, and then you also have 8 CFR 1003

[00:44:05] Speaker 03:
which specifies that only arriving aliens would be ineligible to get a bond hearing before an immigration judge.

[00:44:15] Speaker 03:
So there is conflicting language in the regulations from the date of enactment.

[00:44:22] Speaker 03:
But what is clear is that the regulatory language also supports and explicitly supports

[00:44:32] Speaker 03:
plaintiff's position that they continue to be entitled to bond hearings.

[00:44:36] Speaker 03:
And that, in fact, was the practice for 30 years.

[00:44:40] Speaker 03:
And I'd make one final point on that is, even though now the agency wants to walk back from that practice of 30 years, but the fact that they had that consistent practice from the date of enactment 30 years ago

[00:44:55] Speaker 03:
is also instructive as a standard canon of statutory interpretation in looking at what Congress did in the Lincoln Riley Act, where they again adopted or amended 1226C with respect to inadmissible persons.

[00:45:13] Speaker 03:
So the fact that Congress understood 1226C to be applying to inadmissible persons is reinforced by the agency practice

[00:45:22] Speaker 03:
and supports plaintiffs' position and directly undermines defendants' new interpretation.

[00:45:27] Speaker 04:
The government says in response, you know, well, the state of play was at the time that there was non-enforcement or under-enforcement of B2A, so it's hard to know what to make of the Lakin-Riley amendments against that backdrop.

[00:45:42] Speaker 04:
What do you think of that point?

[00:45:43] Speaker 03:
I think to the contrary.

[00:45:46] Speaker 03:
If Congress thought that the government had it wrong, the executive branch had it wrong, then they would have clarified that no, 1226 C does not apply to inadmissible persons, but instead Congress doubled down

[00:46:00] Speaker 03:
on 1226 application to inadmissible persons, creating yet another category of inadmissible persons who would otherwise be entitled for a bond hearing under 1226A, but instead carved them out in 1226C1E.

[00:46:17] Speaker 03:
And again, it's notable that the Lake and Riley Act did not even address to portable persons.

[00:46:22] Speaker 03:
It was focused solely on inadmissible persons.

[00:46:25] Speaker 03:
all of this reinforcing that the district court was correct in finding that the statutory exceptions prove that absent the exception, the statute applies.

[00:46:39] Speaker 03:
And of course, the district court relied on the Supreme Court's decision in Shady Grove.

[00:46:44] Speaker 03:
And this again goes back to your original question, Judge McEwen, about whether there's some redundancy.

[00:46:50] Speaker 03:
This is not simple redundancy.

[00:46:52] Speaker 03:
This is nullifying complete subparagraphs of the statute.

[00:46:56] Speaker 03:
And it's not just the subparagraphs.

[00:46:58] Speaker 03:
If you look at 1226A, the predecessor statute used language that said pending a determination of deportability.

[00:47:08] Speaker 03:
But then with IRA, Congress changed that and said, pinning a decision of removability.

[00:47:15] Speaker 03:
making clear that it's inclusive of both categories, not just to portable persons, but also inadmissible persons.

[00:47:22] Speaker 03:
So from the get-go, in 1226A, it specifies that, and then in 1226C, it makes it absolutely clear that 1226A encompasses both the portable and inadmissible persons because it has different sub-paragraphs that exclusively address one category or the other, whether it's inadmissible or deportable persons.

[00:47:44] Speaker 00:
I have one question briefly on enforcement.

[00:47:50] Speaker 00:
You raised the issue, but you don't ask for any relief other than a quick ruling.

[00:47:56] Speaker 03:
That's right.

[00:47:57] Speaker 03:
At this point, we're simply asking this court to rule as quickly as possible.

[00:48:01] Speaker 03:
We have gone before the district court ad nauseum with repeated habeas petitions because the government has refused to acknowledge evidently that they're a party to the declaratory judgment.

[00:48:13] Speaker 03:
Those immigration judges are a party.

[00:48:15] Speaker 03:
And so when they say they're bound by the BIA decision, it makes no sense because the declaratory judgment is final and under rule of law and Article 3 court's finding in which there are party is controlling, but they've been disregarding that.

[00:48:30] Speaker 04:
Thank you.

[00:48:30] Speaker 04:
So we have the Fifth Circuit decision.

[00:48:32] Speaker 04:
I know the Eighth Circuit heard arguments recently.

[00:48:35] Speaker 04:
Are there arguments scheduled in any other Court of Appeals that you know about?

[00:48:38] Speaker 03:
There are.

[00:48:39] Speaker 03:
I believe in the First and Fourth Circuits, and of course the Seventh Circuit already issued a ruling on this in the preliminary injunction stage, and there's been arguments that are pending a decision there at the substantive stage as well.

[00:48:53] Speaker 04:
Okay, we've obviously understandably gone over time here, but I want to see if colleagues have additional questions for you.

[00:49:01] Speaker 04:
No.

[00:49:01] Speaker 04:
Mr. Adams, thank you.

[00:49:02] Speaker 03:
Thank you for your time.

[00:49:11] Speaker 02:
Just a few points in response, Your Honors.

[00:49:15] Speaker 02:
Just picking up on Jennings, I think I've made the point that I think it is dicta, but to the extent that we're going to look at Jennings for language that is helpful, I think it actually has helpful language to both sides.

[00:49:26] Speaker 02:
So for example, on page 297 of Jennings, the court in the analysis, not the background sections, has read most naturally sections 1225, B1 and B2, thus mandate detention of applicants for admission until certain proceedings have been concluded.

[00:49:39] Speaker 02:
So I think you can find some language that's perhaps helpful to their side, you can find some language that's helpful to our side, all of which I think goes to show the instruction from pork producers, they're not supposed to parse dicta in...

[00:49:54] Speaker 02:
decisions like it was a statute.

[00:49:57] Speaker 02:
But I'll leave Jennings there.

[00:49:59] Speaker 02:
I wanted to make a point about section 1225A3.

[00:50:02] Speaker 02:
As far as I recall, my friend on the other side didn't dispute that the function of an or otherwise clause, he hasn't identified any other statute that has read such language, or any other court rather, that has read such language

[00:50:15] Speaker 02:
differently.

[00:50:16] Speaker 02:
His whole argument, as I understand it, was, well, there are some people who don't fit into that category, and it's not surprising at all.

[00:50:22] Speaker 02:
He pointed to 1101A13A.

[00:50:26] Speaker 02:
Congress is perfectly capable of taking a rule and having exception to it.

[00:50:31] Speaker 02:
That doesn't negate the logic of the provision that Congress was putting into place that applicants for admission are seeking admission, and none of class members, to my knowledge, fall into any of those exceptions, so that doesn't do them any good either.

[00:50:45] Speaker 04:
Which exceptions are you referring to here specifically?

[00:50:47] Speaker 02:
So he had mentioned, I think, Stowaway.

[00:50:49] Speaker 02:
I think he had mentioned the exception or the reference in 1101A13A, referring to LPRs.

[00:50:58] Speaker 02:
And there might have been another one that I don't recall.

[00:51:01] Speaker 02:
But the point being that none of that negates the logic of the language in 1225A3, showing that those who are applicants for admission are seeking admission.

[00:51:09] Speaker 04:
So are there other people who are seeking admission who are not applicants for admission?

[00:51:13] Speaker 02:
Yes.

[00:51:14] Speaker 02:
Right, so one example that comes to mind is there are some inspections done in foreign airports in Dublin or Vancouver, to my knowledge, and those people are inspected.

[00:51:25] Speaker 02:
These will be aliens coming to the United States.

[00:51:27] Speaker 02:
They are not applicants for admission because they are not arriving here, and they are certainly not present here, but a pre-inspection is being done there.

[00:51:35] Speaker 00:
They're seeking admission, no?

[00:51:37] Speaker 02:
Right, but they're not applicants.

[00:51:38] Speaker 00:
Seeking admission at what is tantamount to a border.

[00:51:41] Speaker 00:
I mean, the arrangement

[00:51:44] Speaker 00:
with these special airports is basically having them be tantamount to a border inspection, right?

[00:51:51] Speaker 02:
But they are not arriving in or present in the United States, and that is the definition under applicant for admission.

[00:51:56] Speaker 02:
So those people could be deemed to be seeking admission, the broader category, but not applicants for admission.

[00:52:01] Speaker 02:
So I think the logic of 1225A3 holds, but the more important point being that applicants for admission are seeking admission.

[00:52:10] Speaker 02:
I did want to address the consequences of the interpretation of seeking a mission that the other side puts forward.

[00:52:18] Speaker 02:
So as I understand their position, there's a few things that confuse me.

[00:52:21] Speaker 02:
I thought I heard my friend say that if an alien comes between the ports of entry and says they are applying for asylum or something like that, they are therefore deemed to be seeking admission.

[00:52:34] Speaker 02:
That sounds a lot like our alternative argument for why they would be seeking admission if they're seeking some other relief when they are in the country, for example, in removal proceedings, which I thought they had said was not seeking admission.

[00:52:44] Speaker 02:
So I think there's some inconsistency in their position there.

[00:52:47] Speaker 02:
I think a broader point is a sort of a practical one.

[00:52:51] Speaker 02:
How are we to know if, especially when you're talking about between the borders, in any given case, whether an alien who has crossed the borders, crossed between ports of entry, whether in any given case, what that alien intended to do?

[00:53:04] Speaker 02:
Did they intend to find a border patrol agent and apply for asylum or some other kind of relief or not?

[00:53:12] Speaker 02:
I have no idea under their interpretation of the statute how that would be determined.

[00:53:15] Speaker 02:
And it sounds like we just have to take the alien's word for it.

[00:53:18] Speaker 02:
I'm not sure if that involves an evidentiary hearing.

[00:53:20] Speaker 02:
None of that seems to be called for in the statute at all.

[00:53:23] Speaker 02:
And if there are going to be presumptions in place, like objective presumptions about, well, they made it 100 miles in, so we don't think they're seeking admission, maybe we can do that.

[00:53:31] Speaker 02:
But the statute doesn't lay any of that out either, which I think strongly suggests that this is not what the statute was intended to put in place.

[00:53:37] Speaker 00:
The regulations do speak to that, though, right?

[00:53:41] Speaker 00:
in terms of distance from the border and practices.

[00:53:45] Speaker 02:
I'm not sure which regulation.

[00:53:47] Speaker 02:
I know

[00:53:48] Speaker 02:
Under expedited removal, there's some of that, but I'm not sure under 1225 B2A.

[00:53:53] Speaker 02:
I think another really important consequence of their interpretation to keep in mind is this, that the entire incentive structure that it creates is to encourage aliens to violate the immigration laws.

[00:54:05] Speaker 02:
That is the inevitable consequence of their interpretation is no one would say, I am seeking admission.

[00:54:12] Speaker 02:
I am coming here to obtain lawful entry in the United States, because the consequence of that would be mandatory detention.

[00:54:19] Speaker 02:
So this, what their interpretation does is push aliens to evade inspection by immigration officers, which also just happens to put them in violation of AUSC 1325A, the unlawful alien provision, which is a misdemeanor.

[00:54:33] Speaker 02:
It's very hard for me to believe that the Congress that passed ORIRA, of all things, which was a very strict border security provision, was trying to put in place a system to encourage, with a pretty heavy stick, mandatory detention, aliens to invade the immigration laws of the United States.

[00:54:49] Speaker 02:
I don't think that's plausible.

[00:54:53] Speaker 04:
I have 39 seconds left, so I guess... You're in borrowed time here, but I want to make sure that all of our questions are asked.

[00:55:00] Speaker 04:
Why don't you go ahead and make a concluding statement?

[00:55:02] Speaker 02:
I guess what I'd just say, Your Honor, is we hope the court will reverse and I will echo my friend's request that the court act expeditiously.

[00:55:12] Speaker 02:
Thank you.

[00:55:13] Speaker 04:
Thank you.

[00:55:15] Speaker 04:
Mr. Hayes, Mr. Adams, we thank you and your teams for the helpful briefing and argument.

[00:55:18] Speaker 04:
This matter is submitted.

[00:55:20] Speaker 04:
We'll stand in recess until tomorrow morning.