[00:00:00] Speaker 03:
Case number 25 and 53 of London.

[00:00:04] Speaker 03:
Major of New York at ALS versus Christina, who's secretary of the U.S.

[00:00:07] Speaker 03:
Department of Homeland Security in her official capacity at ALS at Balance.

[00:00:12] Speaker 03:
Mr. Anson, are you at Balance?

[00:00:14] Speaker 03:
Mr. Balanchristian, are you at Balance?

[00:00:17] Speaker 04:
Good morning.

[00:00:18] Speaker 04:
Good morning.

[00:00:19] Speaker 04:
Oh no, afternoon.

[00:00:21] Speaker 04:
That's out of habit, I apologize.

[00:00:26] Speaker 02:
Good afternoon, may it please the court, Drew Ensign, Deputy Assistant Attorney General for the United States.

[00:00:31] Speaker 02:
I'd like to reserve four minutes for rebuttal.

[00:00:34] Speaker 02:
The universal relief order below defies binding precedent multiple times over and should be stayed pending appeal.

[00:00:41] Speaker 02:
For more than 130 years since Nishimura, and recently reiterated by the Supreme Court in Thura-Sageem, it has been well established that aliens who are not lawfully admitted into the country are only entitled to whatever procedures that political branches provide and that the plaintiffs cannot rely on the due process clause to impose additional procedural requirements.

[00:01:02] Speaker 02:
As the Supreme Court explained in thoracogym, the due process rights of an alien seeking initial entry are simply, quote, whatever procedures are authorized by Congress, end quote.

[00:01:13] Speaker 02:
That applies even to those who lawfully presented themselves at ports of entry and have been present in the United States for years.

[00:01:21] Speaker 02:
Notably in the Kaplan case, for example, the alien at issue had been present in the United States for eight years.

[00:01:27] Speaker 01:
Mr. Ensign, before we get to the merits of the due process argument, I'm wondering,

[00:01:32] Speaker 01:
whether the plaintiff's claims here are barred by the 60-day time bar.

[00:01:38] Speaker 01:
Your Honor.

[00:01:39] Speaker 01:
Because we've said that on an MMV that that's jurisdictional.

[00:01:44] Speaker 01:
So first they have to get past that time bar.

[00:01:48] Speaker 02:
Your honor, it's a bit of a mix of things.

[00:01:50] Speaker 02:
We haven't specifically raised that in our state papers, given the limit spacing.

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It is jurisdictional.

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We certainly think it could be.

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And in particular, in 2002, the executive expanded the expedited removal to the statutory limits for all aliens that arrived by sea.

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And so as to those aliens, wherever present in the entire interior of the nation for up to two years, they have been subject to these procedures for the last 23 years.

[00:02:17] Speaker 02:
And that has not been challenged.

[00:02:18] Speaker 02:
So we certainly think that that bar would apply under that logic and would bar the claims here.

[00:02:24] Speaker 01:
As I understand it, the plaintiffs aren't, there are no new due process, there are no new procedures in the designation or in the Huffman memorandum.

[00:02:34] Speaker 01:
So any procedures that are being applied are decades old procedures.

[00:02:39] Speaker 02:
That's correct, Your Honor.

[00:02:42] Speaker 04:
They're applied to an entirely new class of people, an entirely different geographical area.

[00:02:49] Speaker 02:
Your honor, I agree that it's a new class of people.

[00:02:51] Speaker 02:
I disagree as to the geographical area.

[00:02:54] Speaker 04:
Let me say when I say class, because that could be very confusing.

[00:02:56] Speaker 04:
I just mean just sort of the whole population that now could potentially be at least thought to maybe not be here lawfully.

[00:03:03] Speaker 04:
So if you just think of the entire population of the interior of the United States is now governed by this regime.

[00:03:11] Speaker 02:
So that's what I meant, just to be clear for land arrivals for people who arrived by see, this has been the law for 23 years.

[00:03:19] Speaker 02:
Right.

[00:03:19] Speaker 02:
Right.

[00:03:19] Speaker 04:
So for land arrivals, and so it's.

[00:03:23] Speaker 04:
A whole new sweep of people who are now brought into being covered by this system.

[00:03:29] Speaker 04:
And then the decision was made that.

[00:03:33] Speaker 04:
the same procedures we had for within, shall we say, 100 air miles, I think is how it was defined, will be applied across the entire nation.

[00:03:42] Speaker 04:
So there was a judgment.

[00:03:45] Speaker 04:
They could have adopted different procedures.

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Much had been talked about in past years about that.

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They made a decision to take those procedures, long tested, as you said, and move them to an entire new part of the country.

[00:04:01] Speaker 02:
That's correct, Your Honor.

[00:04:02] Speaker 04:
So that's what's being challenged here.

[00:04:04] Speaker 02:
That's correct, Your Honor.

[00:04:06] Speaker 04:
Whether those procedures are adequate for the new both geographical jurisdiction and the grouping of peoples to which it will now be applied.

[00:04:14] Speaker 02:
That's correct.

[00:04:15] Speaker 02:
But I think it's important to note in that while the district court believed it was a new and unprecedented issue that someone would have to prove that they've been in the country for longer than two years rather than 14 days, that has in fact been the law for sea arrivals for the last 23 years.

[00:04:32] Speaker 05:
Well, whose part in the proof is it, actually?

[00:04:36] Speaker 02:
The statute places that burden on the alien to show that they have been present in the United States continuously for the two-year period or whatever the applicable period is.

[00:04:47] Speaker 05:
But isn't one of the challenges that how does the non-citizen have the opportunity to do that if they are essentially picked up or captured at a deportation proceeding or at an airport or anywhere

[00:05:01] Speaker 05:
that's beyond the sea?

[00:05:02] Speaker 05:
How do they have that opportunity to actually prove what you just mentioned?

[00:05:07] Speaker 02:
Your honor, I don't think that's presented here.

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So let me explain why and then explain to you what their opportunities would be.

[00:05:12] Speaker 02:
But I don't think that's presented here for a number of reasons.

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First of all, there's simply no standing for that claim.

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Of the two people, the name plaintiffs that said they had been exposed to this issue, both of them expressly disavowed seeking any relief by the Section 705 motion.

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And no one else has alleged that they've been exposed to this particular issue or are likely to do so eminently.

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And so under Summers, there is no standing for this claim.

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And so it fails on that account.

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It also fails for a second reason, which is that it's not a cognizable claim.

[00:05:45] Speaker 02:
It's essentially a claim seeking additional procedures, but there's not a due process interest specifically in more procedures rather than an end.

[00:05:56] Speaker 04:
That's a merits argument, not a jurisdictional or standing argument, right?

[00:06:00] Speaker 02:
It's a threshold argument why you wouldn't get to the merits.

[00:06:04] Speaker 02:
But you're correct that that's a merits argument rather than a standing one.

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My first understanding, this would be more of a threshold one.

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And as the Supreme Court said in OLEM, process is not an end in and of itself.

[00:06:15] Speaker 02:
Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.

[00:06:21] Speaker 02:
So wrongly being placed in expedited removal rather than section 240 as long as it reaches the correct outcome is not a due process violation.

[00:06:29] Speaker 02:
As long as those procedures are adequate, there's not a process interest to just in more process itself.

[00:06:36] Speaker 02:
As to how it's presented,

[00:06:37] Speaker 02:
There's very little record evidence on this because as far as we can tell, no one has ever encountered this issue in a way that's meaningful.

[00:06:45] Speaker 02:
But my understanding is that under 2019 guidance, the immigration officer asked several questions and needs to essentially elicit information as to all of the relevant questions.

[00:06:56] Speaker 02:
This has been the law as to see arrivals for the last 23 years.

[00:07:01] Speaker 02:
I don't believe there's any evidence in the record that anyone has failed to understand that their duration in the United States, presence in the United States is a potentially live issue on which they may need to present evidence.

[00:07:13] Speaker 01:
Are they specifically asked about whether they've been present for two years?

[00:07:18] Speaker 01:
Are they given notice that they're being put into expedited removal proceedings because

[00:07:25] Speaker 01:
There's no evidence that they've been continuously present for two years.

[00:07:29] Speaker 02:
Your Honor, I think that is very typically the case.

[00:07:31] Speaker 02:
My understanding is that the way this operates is that immigration officers are told to elicit information as to all of the relevant questions that are presented as to expedited removal.

[00:07:42] Speaker 02:
And presence is obviously one of those.

[00:07:44] Speaker 04:
Why are they told that?

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Where does it say that they are told?

[00:07:46] Speaker 04:
I mean, what I've seen in the record is that they're asked to identify if they have credible fear, persecution.

[00:07:55] Speaker 04:
All the forms said that.

[00:07:56] Speaker 04:
Is there something in the record?

[00:07:57] Speaker 04:
Is there something in an official document that says you will also ask all the criteria that would render you eligible or ineligible, honestly, for expedited removal?

[00:08:09] Speaker 04:
Where is that?

[00:08:10] Speaker 02:
I don't know that that's specifically in the record, but I will point out.

[00:08:13] Speaker 04:
Is it in specifically in the record?

[00:08:16] Speaker 02:
Not that I can quote to you.

[00:08:18] Speaker 04:
In the record that says that.

[00:08:19] Speaker 04:
In the record, actually, there is record evidence of exactly what you do ask.

[00:08:23] Speaker 02:
Not that I can point you to right now.

[00:08:25] Speaker 02:
What I can point you to right now that is in the 23 years that foresee arrivals that people have had to prove their presence is longer than two years.

[00:08:32] Speaker 02:
No one has ever failed to understand this.

[00:08:34] Speaker 04:
What's that?

[00:08:34] Speaker 04:
Has that been litigated?

[00:08:35] Speaker 02:
Not to my knowledge.

[00:08:36] Speaker 02:
Not to my knowledge.

[00:08:37] Speaker 04:
So that doesn't really tell us a whole lot, does it?

[00:08:40] Speaker 02:
Your honor, I disagree.

[00:08:41] Speaker 02:
I think it does.

[00:08:42] Speaker 02:
I think that this has been applied to tens of thousands of aliens and they don't have a single one who has come forward to say that I didn't understand.

[00:08:49] Speaker 04:
And now you're in the millions.

[00:08:51] Speaker 04:
Now you're in the millions, now you're coming to the interior of the country and you're covering millions and millions and millions and millions of new people.

[00:08:59] Speaker 04:
And so the fact that you had this little small community that was covered, sea arrivals, most of whom I assume are captured within 100 air miles of the border, doesn't seem to say much to the question of now that you have

[00:09:21] Speaker 04:
You're covering, the secretary made the decision to have this broad sweep.

[00:09:25] Speaker 04:
The statute authorizes the secretary to go to this full extent.

[00:09:32] Speaker 04:
But that's just a separate question of how you then go about sorting out who is even statutorily eligible for expedited removal.

[00:09:43] Speaker 04:
And there's nothing

[00:09:45] Speaker 04:
in the scope of the protected designation that allows sweeping anyone who's not statutorily covered by expedited removal, right?

[00:09:57] Speaker 02:
The DHS cannot exceed the maximum scope of the statute.

[00:10:02] Speaker 02:
I agree with that.

[00:10:03] Speaker 04:
Right.

[00:10:03] Speaker 04:
And the maximum scope of the statute would exclude people who've been here, I think it's more than two years, right?

[00:10:09] Speaker 04:
If you're right at two years, you're not, if it's more than two years.

[00:10:12] Speaker 02:
It's two years plus a continuous presence requirement.

[00:10:15] Speaker 04:
But the time is more than two years, two years and minutes, I suppose, continuously.

[00:10:22] Speaker 04:
And so as to that, there's absolutely no evidence on the record that anyone in response to Judge Rao's question is asked about that or informed that that's a relevant factor as to whether they're even eligible for this expedited removal.

[00:10:39] Speaker 02:
You're not going to say categorically, there's nothing there's nothing I can cite to you as standing at this podium, but I think I draw.

[00:10:45] Speaker 04:
There might be something in the record that you're just not calling to mind right now.

[00:10:49] Speaker 04:
It's conceivable your honor, but I have a particular thing in mind.

[00:10:52] Speaker 04:
You just can't remember if it's in the record.

[00:10:55] Speaker 02:
Your Honor, I'd want to go back.

[00:10:59] Speaker 02:
There may be guidance.

[00:11:01] Speaker 02:
It's not definitive, my understanding and talking to the clients, and I want to be very careful because I want to sort out between what I've had conversations with the clients about and what is strictly in the record.

[00:11:13] Speaker 02:
Right now, I can't point you to any specific evidence, but I think it is very useful, that absence of evidence, to point out that we do not have a single plaintiff who has ever alleged

[00:11:24] Speaker 04:
I just want to go back to your response to Judge Rao was that your understanding was that agents ask, I'm not going to phrase this exactly as your words, so correct me if I'm wrong, but that they ask about whether people meet the criteria for expedited removal.

[00:11:43] Speaker 02:
Exactly, Your Honor.

[00:11:44] Speaker 02:
The forms do not specifically identify that, but they are trained to elicit information.

[00:11:51] Speaker 04:
Where is that training?

[00:11:54] Speaker 02:
Your honor, it's in the 2019 guidance, which I'm not sure if it's in the record or not.

[00:12:00] Speaker 02:
We're certainly happy to submit this to the court.

[00:12:03] Speaker 02:
But again, we have zero plaintiffs that have ever said this alive.

[00:12:07] Speaker 04:
Yeah, I understand that.

[00:12:07] Speaker 04:
I'm trying to get what the record is here as to what people are getting.

[00:12:10] Speaker 04:
In fact, if someone hasn't complained, maybe didn't have time to complain.

[00:12:15] Speaker 04:
But you're telling me that you think there's 2019 guidance that talks about that they're trained,

[00:12:23] Speaker 04:
there to ask about the two-year question, the judge route.

[00:12:29] Speaker 02:
They're trained to ask generally about all relevant questions as to the... Well, are they told what the relevant questions are?

[00:12:35] Speaker 02:
They are trained on what the relevant questions are, yes.

[00:12:39] Speaker 04:
And you believe that one of those relevant questions is if you're here more than two years continuously?

[00:12:43] Speaker 02:
That has always been a live issue under the prior designation.

[00:12:46] Speaker 02:
It was 14 days, now it's two years, but the duration has always been a live question in expedited removal.

[00:12:51] Speaker 04:
And they're trained to ask about that.

[00:12:53] Speaker 02:
That's my understanding, Your Honor.

[00:12:54] Speaker 01:
Mr. Insight, can I ask you another threshold question?

[00:12:59] Speaker 01:
So in Make the Road 1, on which both Judge Millett and I were on that panel some years ago, the court held that designation decisions are committed to agency discretion by law.

[00:13:12] Speaker 01:
And so that is a binding precedent of this court.

[00:13:15] Speaker 01:
And if that's the case, then there is no APA cause of action here.

[00:13:21] Speaker 01:
This is also a designation decision, the same as in Make the Road 1.

[00:13:25] Speaker 01:
And if there's no APA cause of action, where would the district court have authority under Section 05 to order relief pending review?

[00:13:36] Speaker 02:
Your Honor, our understanding was that Make the Road Decision didn't preclude review as a jurisdictional matter of due process claims.

[00:13:44] Speaker 01:
Under the APA?

[00:13:46] Speaker 02:
or potentially another cause of action.

[00:13:49] Speaker 01:
So the district court here said that it was not reaching the APA claims, but yet it entered a so-called stay under 705 under the APA.

[00:14:07] Speaker 01:
But under Make the Road 1, there's no APA cause of action when a matter is committed to agency discretion by law, which this designation decision is.

[00:14:17] Speaker 02:
We certainly agree with that predicate.

[00:14:18] Speaker 02:
We had read Make the Road 1 as not precluding due process claims.

[00:14:22] Speaker 02:
But if we are wrong about that, we would be happy for the court to tell us that.

[00:14:26] Speaker 01:
Due process claims, but due process, maybe there's an ultra-virus claim.

[00:14:32] Speaker 01:
But how would there be a claim under the APA?

[00:14:36] Speaker 01:
And once there's no APA cause of action, where is there any authority for the district court to enter this relief?

[00:14:44] Speaker 02:
Well, Your Honor, to start with, this is in the sole and unreviewable discretion of the secretary.

[00:14:49] Speaker 02:
We believe that to mean that none of this is reviewable.

[00:14:52] Speaker 02:
This court told us otherwise and make the road one.

[00:14:55] Speaker 02:
We construed that as also not precluding their due process challenges.

[00:15:01] Speaker 01:
We said that in 2014, right?

[00:15:03] Speaker 01:
We said there was jurisdiction, but it held that it was ultimately not reviewable because committed to agency discretion by law.

[00:15:12] Speaker 02:
Your Honor, we would be delighted to discover that their due process claim cannot be raised.

[00:15:17] Speaker 02:
The Supreme Court decision in Webster split that particular question a little oddly.

[00:15:23] Speaker 01:
I'm just wondering how you think it's even possible for there to be a due process APA claim when there's no APA cause of action.

[00:15:31] Speaker 02:
Your honor, that's certainly an issue that we had considered raising and may well raise in our opening brief.

[00:15:38] Speaker 02:
I will acknowledge there are decisions on both sides of this issue.

[00:15:43] Speaker 02:
I've seen the Supreme Court in the Webster case, they committed agency discretion, gets rid of APA, but not due process review.

[00:15:49] Speaker 02:
I've seen other cases read otherwise.

[00:15:52] Speaker 01:
Even if there's due process review, though, wouldn't that have to be an ultra-virus claim or some equitable cause of action?

[00:16:01] Speaker 02:
Quite possibly, Your Honor.

[00:16:03] Speaker 02:
I mean, that certainly would be our frontline position.

[00:16:06] Speaker 01:
Courts tend to... Well, and if that was the case, if there was only the possibility of an ultra-virus claim, then you couldn't get a 705 stay.

[00:16:15] Speaker 02:
I believe that's correct.

[00:16:18] Speaker 01:
I guess you could get an injunction, but of course, injunctions are explicitly barred by 1252 F1.

[00:16:25] Speaker 02:
That is certainly correct about 1252F1.

[00:16:29] Speaker 02:
I actually don't know the answer to the question as to Section 705.

[00:16:33] Speaker 02:
Section 706, for example, provides a standard review even when you don't have an APA cause of action.

[00:16:39] Speaker 02:
I don't know if that same rule applies to Section 705.

[00:16:43] Speaker 02:
And so without an APA cause of action, I think it's certainly reasonable to believe that a Section 705 stay wouldn't be available.

[00:16:55] Speaker 04:
You haven't made this argument as a ground on which you're likely to succeed.

[00:16:59] Speaker 04:
You haven't made this argument at all that Judge Rao is making, correct?

[00:17:01] Speaker 04:
You said you're reserving it.

[00:17:02] Speaker 04:
You may want to raise it later, but you haven't advanced that here as a basis on which you're likely to succeed.

[00:17:07] Speaker 02:
Not as to the second one as to review being barred of the due process claim we have raised in the district court.

[00:17:14] Speaker 01:
So not the one that Judge Rao... Isn't this still a threshold issue that we would have to reach?

[00:17:18] Speaker 01:
Before we can determine whether an APA stay is permissible under 1252F1, we have to

[00:17:26] Speaker 01:
You know, we have to determine that the district court had authority to enter a Section 705 stay.

[00:17:33] Speaker 01:
And 705 talks about, you know, you can preserve the status or rights pending conclusion of the review proceedings.

[00:17:41] Speaker 01:
Review proceedings I think is most naturally meant to mean APA review proceedings, but there is no APA review here because the matter is committed to agency discretion by law.

[00:17:51] Speaker 02:
Your honor, we certainly agree with those premises.

[00:17:55] Speaker 02:
We haven't specifically raised that in our state motion.

[00:17:57] Speaker 01:
But do you think we could reach that in this posture because it's a threshold issue?

[00:18:01] Speaker 02:
Certainly, Your Honor, the court's authority to reach issues like that is largely a matter of discretion.

[00:18:07] Speaker 02:
At some point, there may be a sending Smith issue, but I don't think so in this posture where the scope of- The government raised this below, though, right?

[00:18:18] Speaker 02:
As to, yes, as to the question of whether or not the due process claim can be reached, we absolutely did.

[00:18:25] Speaker 02:
And we've certainly argued that Section 705 stay isn't available and- The government's leaving a lot of arguments

[00:18:31] Speaker 01:
on the cutting room floor.

[00:18:32] Speaker 02:
Your honor, we only have 5200 words.

[00:18:34] Speaker 02:
That's very that is actually quite tight in order to for this.

[00:18:38] Speaker 02:
You know, certainly if we could get more words for where stays involved national policies, we would be delighted to take that opportunity.

[00:18:45] Speaker 02:
But we made what we thought were our strongest arguments in our 5200 words.

[00:18:50] Speaker 05:
But related to your jurisdictional argument, what do we make about the Supreme Court's directive that there is a strong presumption in favor of judicial review?

[00:18:59] Speaker 05:
and the plain language that under the 1253 A3A goes to judicial review of constitutionality of the agency actions.

[00:19:15] Speaker 02:
Your honor, certainly, but the overlay here, that language certainly does exist, but it exists simultaneously.

[00:19:21] Speaker 02:
That is a more general statement as to programmatic challenges to expedited review.

[00:19:26] Speaker 02:
Here we are in the more specific context of what is the scope of the designation by the secretary.

[00:19:33] Speaker 02:
That is committed to the secretary's sole and unreviewable discretion, which she can exercise at any time.

[00:19:40] Speaker 02:
And we think the specific would control over the general.

[00:19:43] Speaker 04:
On footnote 14 in our prior decision, we were explicit that we were not deciding whether there would be a positive action under the APA or otherwise, dot, dot, dot, if the secretary's actions were unconstitutional.

[00:19:55] Speaker 04:
So I assume that's what you were referencing before, is making the road not having resolved this question.

[00:20:01] Speaker 02:
That's correct, Your Honor.

[00:20:03] Speaker 04:
And as you just, I think, made clear, this argument is not one that you're advancing.

[00:20:09] Speaker 04:
Not that you're waiving it or anything for further proceedings, not here for your likelihood of success.

[00:20:15] Speaker 02:
It is not one that we've raised in our stated papers.

[00:20:18] Speaker 04:
All right.

[00:20:19] Speaker 04:
And whether there's a cause of action is pretty clearly not a jurisdictional question for something.

[00:20:25] Speaker 02:
That's correct.

[00:20:25] Speaker 04:
And since we didn't hold and make the road that unconstitutional conduct or reaching obviously beyond the bounds of the statute would be committed to agency discretion, that again doesn't fall into the jurisdictional hole for things committed to agency discretion.

[00:20:40] Speaker 02:
not as too committed to agency discretion.

[00:20:42] Speaker 02:
There's separately the fact that Congress used unreviewable and certainly recognized that this court came out a different way, but I think we... It's an awful heavy...

[00:20:55] Speaker 04:
lift the department, which I guess I didn't see being made here, that the statute committed to the agency's discretion to act unconstitutionally.

[00:21:04] Speaker 04:
That's not what you're arguing.

[00:21:05] Speaker 04:
Obviously, you don't think there's a constitutional violation, but if we assume there's a constitutional violation, would your argument be that the statute committed to the agency the authority to act unconstitutionally?

[00:21:15] Speaker 02:
No, Your Honor, it would be that unreviewable simply means unreviewable and thus the court would never reach the question of whether or not it was unconstitutional because unreviewable would mean the court... Well, that's the same thing as saying that Congress has somehow authorized you to engage in whatever conduct you want, constitutional or not, nothing the court can do about it.

[00:21:31] Speaker 02:
Your Honor, we disagree with that.

[00:21:33] Speaker 02:
We agree that that may ultimately be the result.

[00:21:36] Speaker 02:
The executive certainly strives to follow the Constitution.

[00:21:40] Speaker 02:
And it would simply mean that there is not a judicial remedy if the judiciary disagreed with that constitutional interpretation.

[00:21:46] Speaker 04:
And the Supreme Court's been pretty clear about, back to my heavy lift of how very, very, very difficult it is to show the judicial review is cut off generally of legal questions and certainly of constitutional questions affecting individuals.

[00:22:02] Speaker 02:
Yes, Your Honor, we will acknowledge the Supreme Court has made that presumption, but we think that presumption, and this is an argument we're just preserving, but we think that presumption is defeated by sole and unreviewable discretion, that that is the sort of absolutist language that Congress uses when it actually intends to preclude judicial review altogether.

[00:22:23] Speaker 04:
Did you want to talk about jurisdiction under 1292A1 for your

[00:22:32] Speaker 04:
Review seems like a very confusing area of law, but that's also jurisdictional as well.

[00:22:40] Speaker 04:
I mean, 1292 a one is injunctions, but then it has been interpreted to include things that.

[00:22:48] Speaker 04:
have the practical effects of an injunction.

[00:22:51] Speaker 04:
So you have that on one hand, which I assume would be your argument here.

[00:22:55] Speaker 04:
But on the other hand, almost all the case, I can't find a case and maybe you're aware of some certainly from this circuit where a 705 stay has been held to fall within that language.

[00:23:10] Speaker 04:
Are you aware of one from this court or the Supreme Court?

[00:23:13] Speaker 02:
Your honor, we've certainly seen quite a number of Section 705 stays in the last 10 months.

[00:23:21] Speaker 02:
This has repeatedly come up to the Supreme Court and they don't seem to resolve it, regardless of the live issue at all.

[00:23:28] Speaker 02:
In the Venezuela TPS case, for example, that was a Section 705 stay.

[00:23:33] Speaker 02:
We got a stay from the Supreme Court there, eight to one.

[00:23:37] Speaker 02:
This issue has come up multiple times in the Ninth Circuit, and the Ninth Circuit has repeatedly concluded that Section

[00:23:42] Speaker 02:
five stays are peelable.

[00:23:44] Speaker 02:
Uh, had another one in the C. H. N. V. Parole case in the first circuit.

[00:23:48] Speaker 02:
I believe that was a section seven of five stay that they concluded that did they go through the three Carson factors in each of those cases?

[00:23:58] Speaker 02:
I'm aware that the Ninth Circuit did in the immigration defender's case that was in July of this year of going through the Carson factors.

[00:24:06] Speaker 02:
I think perhaps the greatest hell is section 705 deciding whether or not to issue them, you use the preliminary injunction standard because the factors that motivate it and the way that it operates is effectively identical to an injunction.

[00:24:20] Speaker 04:
I mean, Supreme Court spent a lot of time in McCann, at least, saying how it's not the same as an injunction.

[00:24:25] Speaker 04:
So the two prongs here, so we've been talking about practical effect.

[00:24:34] Speaker 04:
Can you talk to me about the other prong, which can only be effectually challenged only by immediate appeal?

[00:24:42] Speaker 04:
How is that met here?

[00:24:45] Speaker 02:
Your Honor, the same way as in preliminary injunction cases, we will lose this for the duration of the appeal unless the court hears it now.

[00:24:55] Speaker 02:
I mean, I recognize this is a jurisdictional issue and not waived, but it's also not one that is presented by the other side.

[00:25:00] Speaker 04:
I know, but we, as Judge Ross said, we have to raise these issues and just check them.

[00:25:04] Speaker 04:
I think it's a very messy area.

[00:25:07] Speaker 04:
I mean, the effectually challenged only by immediate appeal sounds like

[00:25:11] Speaker 04:
is drawn from the Cohen test, which really means you have to come now.

[00:25:18] Speaker 04:
What would stop you from effectually raising these exact same arguments from a final judgment of the district court?

[00:25:26] Speaker 02:
The arguments would be the same, but we would be saddled with any interim, with the injunction-like order that restricts our ability to carry out.

[00:25:39] Speaker 04:
Every Cohen appeal is something that's not allowed.

[00:25:44] Speaker 04:
The question here is, because the declaration here talks about

[00:25:54] Speaker 04:
The burden on the government, I want to say inconvenience, that's too light.

[00:25:56] Speaker 04:
The burden on the government, it can't implement the statute as it sees appropriate with the procedures it deems appropriate.

[00:26:06] Speaker 04:
And that could, doesn't say they will, could cause some overcrowding or extra processing delays.

[00:26:15] Speaker 04:
But those don't sound like the type of arguments

[00:26:18] Speaker 04:
that would qualify for a Cohen prong can only be effectually remedied by immediate appeal.

[00:26:29] Speaker 02:
So I disagree for a couple of reasons.

[00:26:31] Speaker 02:
First of all, we do think the fact that this operates, this walks, quacks, and swims like an injunction and should be appealable is the same.

[00:26:41] Speaker 02:
Beyond that.

[00:26:42] Speaker 04:
Is it something about this 705 stay or is your argument that every 705 stay automatically falls within 1292A1 without you having to show at least the third prong of Carson and maybe even the second one?

[00:26:58] Speaker 02:
But your honor, that's certainly a position we've taken, and it's one that many other courts of appeals have not even saw fit to delve into.

[00:27:09] Speaker 04:
Right.

[00:27:09] Speaker 04:
They just haven't grappled with it.

[00:27:11] Speaker 04:
But we're grappling.

[00:27:12] Speaker 04:
If we feel obliged to apply the Supreme Court's tests from Carson.

[00:27:16] Speaker 02:
In that case, I would say specifically here, this is a critical tool of immigration enforcement.

[00:27:21] Speaker 02:
This is not a small deal.

[00:27:23] Speaker 02:
This is absolutely critical to maintaining border control.

[00:27:27] Speaker 02:
The ability to conduct expedited removal is one of the executive's most important tools for maintaining border control and not being overwhelmed.

[00:27:37] Speaker 02:
I think the backlog now in section 240 proceedings.

[00:27:40] Speaker 05:
I would still like to jump in and stay on there.

[00:27:42] Speaker 05:
What makes this

[00:27:43] Speaker 05:
specific state an injunction because you're not being compelled to do anything and it doesn't threaten the government with any civil or criminal contempt or other factors that tend to be commiserant with an injunction.

[00:27:58] Speaker 02:
Your honor, that's not how we view it.

[00:27:59] Speaker 02:
We do not view this as a court order that we can just freely disregard.

[00:28:03] Speaker 02:
We do not view it if someone has been in the country for 23 months.

[00:28:06] Speaker 02:
We could just freely disregard the district court's order and that there would be no consequences to it.

[00:28:11] Speaker 02:
We follow court orders, certainly, but the idea that the district court would view itself as powerless to enforce that.

[00:28:17] Speaker 05:
But the state is really just from your implementation, and then it would then go back to the district court to then go to a 706 proceeding.

[00:28:26] Speaker 02:
Your honor,

[00:28:27] Speaker 02:
I don't think the district court would view its order as having that such limited effect.

[00:28:32] Speaker 02:
I think the district court would view its order as being binding and one that the government cannot violate.

[00:28:40] Speaker 02:
I don't doubt for a second.

[00:28:42] Speaker 05:
But you still have the opportunity to engage in expedited removals at the seat.

[00:28:46] Speaker 05:
and for anyone who's been here less than two years.

[00:28:49] Speaker 05:
And then there's still the 240 proceeding as well.

[00:28:52] Speaker 05:
So what are you losing other than moving into millions of other people to go inward into the US?

[00:28:58] Speaker 02:
We're losing the entire things that are vacated, the entire policy.

[00:29:02] Speaker 02:
The district court essentially issued facial relief that did not give us a scintilla of the memorandum that was left in effect.

[00:29:10] Speaker 02:
The entirety of this order, and we think that's one of the problems here, is the district court awarded facial relief here without even attempting to satisfy the Solerino no set of circumstances.

[00:29:19] Speaker 05:
But this is a total facial invalidation of the entire policy.

[00:29:24] Speaker 05:
that there's only modest procedural protections in what you're saying.

[00:29:29] Speaker 05:
I mean, there was a long discussion earlier when we started the hearing about you all being able to point to any process or any information or real training in the record that suggests that these officers are asking people, you know, had there been that requisite continuance residence.

[00:29:49] Speaker 02:
Well, Your Honor, as to that first question, I think what the record reveals is that it's an entirely theoretical problem.

[00:29:55] Speaker 02:
As far as we know, no person has ever failed to understand that this was a live issue and thereby lost a viable defense that they had been in the country for a period of time.

[00:30:04] Speaker 05:
We have a lot of people coming into the country who don't speak the language.

[00:30:07] Speaker 05:
So to sit up here and represent, no one possibly couldn't understand this, I think is a little rich.

[00:30:15] Speaker 02:
Well, respectfully, Your Honor, that's what Article III demands.

[00:30:18] Speaker 02:
Under Summers, they have to name a point that's affected.

[00:30:20] Speaker 02:
And their failure to do so means there's no Article III jurisdiction as to that claim.

[00:30:24] Speaker 01:
Mr. Einstein, if I could ask you on the due process question, the government argues that unlawfully admitted aliens have no liberty interest in staying within the territorial United States.

[00:30:41] Speaker 01:
And even if we assume that that's true, because they are here unlawfully,

[00:30:45] Speaker 01:
What is this court supposed to make of the Supreme Court's decisions in JGG and AARP, where the Supreme Court seems to recognize that they have some liberty interest?

[00:30:58] Speaker 01:
What is the scope of that liberty interest?

[00:31:01] Speaker 01:
I mean, maybe it's very minor.

[00:31:03] Speaker 01:
I mean, maybe they have a liberty interest, for instance, in not being unlawfully removed.

[00:31:10] Speaker 01:
But the government's position does seem to be at odds with the Supreme Court's decisions.

[00:31:14] Speaker 01:
And I think JGG was a unanimous decision.

[00:31:17] Speaker 01:
I mean, on the emergency document, but still.

[00:31:20] Speaker 02:
Let me tease that out a little bit because that may have been slightly imprecise.

[00:31:24] Speaker 02:
I think the important thing is, I mean, due process is flexible and it applies differently in different contexts.

[00:31:30] Speaker 02:
And so the liberty interests that they would have in fighting removal under Title VIII is defined by Nishimura and Thurisigium, and that only gets them what procedures are provided by Congress.

[00:31:42] Speaker 02:
So what they lack in that context

[00:31:44] Speaker 02:
is a liberty interest that can get them additional procedures under the Matthews v. Eldridge test.

[00:31:49] Speaker 01:
The first thing, though, is to figure out what a due process doesn't apply at all unless they have some liberty interest.

[00:31:56] Speaker 01:
So it seems that it is important to be precise about what their liberty interests might be here.

[00:32:01] Speaker 01:
So I understand you just jumped ahead to the fact that they may not get additional procedures, but how does the government understand the liberty interest?

[00:32:10] Speaker 01:
Because I take the briefing to suggest there's no liberty interest at all.

[00:32:13] Speaker 02:
I think it's whatever the liberty interest is that it can be vindicated in fighting title 8 removals by whatever procedures Congress provides.

[00:32:24] Speaker 02:
And so the liberty interest in due process clause gets you whatever procedures that Congress has provided and no further.

[00:32:35] Speaker 01:
You know, at least it would be helpful if the government had some position on the liberty interest, because make the road says the liberty interest is a liberty interest in remaining in the United States.

[00:32:45] Speaker 01:
That's a very robust liberty interest.

[00:32:49] Speaker 01:
It depends on the.

[00:32:51] Speaker 01:
So what is the government?

[00:32:52] Speaker 01:
I assume the government doesn't agree with that liberty interest, a very expansive interest.

[00:32:56] Speaker 02:
There is such an interest, but that gives rise to very different protections in different contexts.

[00:33:02] Speaker 02:
And the critical delineation that Congress has drawn is the line at lawful admission.

[00:33:06] Speaker 02:
Here's how they described it in the Landon case.

[00:33:10] Speaker 01:
But I'm saying for people who are in this category, people who the government says are subject to expedited removal, what is their liberty interest?

[00:33:20] Speaker 02:
It would actually depend on whether or not they've been lawfully admitted.

[00:33:23] Speaker 02:
So someone who, for example, overstayed a visa may potentially have additional procedural interest or have interest that would give rise to additional procedures because they've been admitted.

[00:33:35] Speaker 02:
In the Landon case, what they said is once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.

[00:33:44] Speaker 02:
So unlike the district court thought the status changes by being in the interior or being present lawfully or not for some period of time, but that's incorrect where the line changes at admission.

[00:33:55] Speaker 02:
And I think the Supreme Court decision in Kaplan is particularly instructive on this.

[00:34:00] Speaker 04:
This is not right.

[00:34:01] Speaker 04:
The statute draws a line that puts people who have been here more than two years, even unlawfully,

[00:34:09] Speaker 04:
outside the scope of those who can be subjected to expedited removal, correct?

[00:34:18] Speaker 02:
As a matter of the statute, that's correct.

[00:34:20] Speaker 04:
As a matter of the statute, they're outside of that scope.

[00:34:24] Speaker 04:
And the Supreme Court has recognized time and again that those who are in this country unlawfully, especially those who've been here for longer periods of time, have due process liberty interests.

[00:34:36] Speaker 04:
Do you dispute that?

[00:34:38] Speaker 02:
Your honor, I dispute, I think the implication being drawn from that.

[00:34:41] Speaker 04:
I'm talking about inflation.

[00:34:43] Speaker 04:
I'm just asking you, I just made a statement to you.

[00:34:45] Speaker 04:
So an accurate or accurate statement of what the Supreme Court has said?

[00:34:47] Speaker 02:
I think it is, as I heard it, I believe it may be inaccurate in so far as... Well, for example, I think the Kaplan case makes clear that the two years would not get an additional due process interest.

[00:35:02] Speaker 02:
In the Kaplan case, the alien had been... Beyond what Congress has afforded?

[00:35:08] Speaker 02:
What's that beyond what Congress has afforded Congress has afforded.

[00:35:12] Speaker 04:
Those who are here more than 2 years.

[00:35:18] Speaker 04:
Routine removal proceedings and not expedited ones and there's no question in my mind there's a different amount of process that you receive in a 240 proceeding than expedited removal.

[00:35:28] Speaker 04:
Congress has said you get that that process.

[00:35:31] Speaker 02:
Your honor, I think I disagree with that for two reasons.

[00:35:34] Speaker 04:
The first... So you just said that these folks are statutorily, I'm talking now about people more than two years, are statutorily barred from being subjected to expedited removal by the two political branches that have control over this very topic, correct?

[00:35:51] Speaker 02:
Your Honor, if I can clarify that answer, I think there are cases where that might not be correct.

[00:35:56] Speaker 02:
Where that may not be correct is Congress has assigned the burden on the aliens to show that they have been continuously present for two years.

[00:36:03] Speaker 02:
Because of that burden of proof, there may well be people that have been present longer in the United States than three years, or longer than two years, but cannot satisfy their burden.

[00:36:11] Speaker 04:
You have to prove that you're eligible for whatever level of protection process you're claiming.

[00:36:16] Speaker 04:
Your honor, that goes without saying.

[00:36:18] Speaker 04:
All right.

[00:36:18] Speaker 04:
But I'm just, they've been here and let's assume they can prove it.

[00:36:23] Speaker 04:
But Congress doesn't say those who can prove it, by the way.

[00:36:26] Speaker 04:
It says those who have been here more than two years are not subject to expedited removal, full stop.

[00:36:37] Speaker 04:
All right.

[00:36:37] Speaker 04:
They are outside this.

[00:36:38] Speaker 04:
Now you can go through your proof issues with them in a 240 proceeding.

[00:36:45] Speaker 04:
All right, but the if there's a burden here on the secretary.

[00:36:50] Speaker 04:
To make sure I thought we'd agreed upon this earlier.

[00:36:54] Speaker 04:
That you are not violating the lines drawn by Congress in this statute.

[00:37:02] Speaker 04:
Are you claiming that the secretary has the ability to throw a big rope around an entire area, draw everyone in, if they don't have immediate proof on their body that they've been here more than two years, you get to sweep them into expedited removal without making sure they qualify for expedited removal?

[00:37:23] Speaker 04:
Is that your answer?

[00:37:24] Speaker 04:
No, Your Honor, but we... Do you have to make sure they qualify for expedited removal before you subject them to expedited removal?

[00:37:31] Speaker 02:
Yeah, we have to use constitutionally sufficient procedures to do so.

[00:37:35] Speaker 04:
Are those constitutionally sufficient?

[00:37:36] Speaker 04:
Sufficient is a very important word here.

[00:37:39] Speaker 04:
And so you have to use procedures sufficient to determine that someone has not been here more than two years before you may subject them to expedited removal.

[00:37:50] Speaker 02:
Your honor, we don't think that that states a cognizable due process claim because that- I'm just asking you

[00:37:56] Speaker 04:
Is the government of the view that it has to have procedures that are sufficient to determine that the people that are subjected to expedited removal are statutorily qualified for expedited removal?

[00:38:09] Speaker 02:
Yes, Your Honor.

[00:38:10] Speaker 02:
That's how we read the statute.

[00:38:11] Speaker 02:
But we do not believe that they have a cognizable due process claim in order to challenge that.

[00:38:15] Speaker 02:
Because as the Supreme Court has made clear in the Olin case, you cannot have an entitlement to just additional procedures.

[00:38:21] Speaker 04:
The statute also excludes people who have been admitted.

[00:38:26] Speaker 04:
And is your answer the same for them?

[00:38:27] Speaker 04:
People who have been admitted can still be subjected to expedited removal under your view if they don't have immediate proof on their bodies when detained that they've been admitted.

[00:38:39] Speaker 02:
Your Honor, I think as to people that have been admitted, they could potentially avail themselves of the due process clause to impose additional presutability.

[00:38:46] Speaker 04:
I'm not asking you the due process question.

[00:38:47] Speaker 04:
I'm just asking you about your implementation of the statute, because much has been said here about what's committed to the secretary's discretion and what is not.

[00:38:57] Speaker 04:
And I think we've agreed that applying expedited removal in a way that crosses statutory lines is unlawful.

[00:39:09] Speaker 04:
Is that correct?

[00:39:10] Speaker 02:
Your Honor, the secretary certainly believes that she has a duty to comply with the requirements of the statute and believes she's doing so.

[00:39:18] Speaker 04:
If you apply this in a way that crosses statutory lines, that would be unlawful.

[00:39:26] Speaker 04:
Yes or no?

[00:39:28] Speaker 02:
If you're violating the statute, that would violate the statute.

[00:39:30] Speaker 02:
I think that's correct.

[00:39:33] Speaker 02:
That would be unlawful.

[00:39:34] Speaker 02:
To violate a statute would be unlawful.

[00:39:36] Speaker 02:
It may not be reviewable.

[00:39:36] Speaker 04:
So when you say sufficient procedures, the procedures have to be sufficient to allow determination that someone is within the group of people eligible for expedited removal.

[00:39:52] Speaker 04:
Is that correct?

[00:39:54] Speaker 02:
That's correct, although we don't think that is a cognizable claim here, both because of the lack of standing and because you don't have a due process interest in additional process.

[00:40:01] Speaker 02:
I think it might also be helpful to point out the robustness of these procedures and how much the risk of error is overwhelmingly allocated to the government.

[00:40:11] Speaker 02:
As the Supreme Court recognized in Thurisigium, full 77% of people that express fear, there's fear that is considered at three different levels.

[00:40:20] Speaker 02:
It's considered by the immigration officer.

[00:40:22] Speaker 02:
is considered by a supervisor and if it's not necessary, considered de novo.

[00:40:26] Speaker 04:
I get what your procedures are on fear of persecution, fear of return, whether they might qualify for asylum and the procedures you have for that.

[00:40:38] Speaker 04:
And that seems to me that probably would not materially change whether you're within 100 air miles or in the interior of the country.

[00:40:45] Speaker 04:
Process would seem to work the same for my question is as to there's no questions.

[00:40:52] Speaker 04:
There's no evidence on this record and you haven't provided any and I take your point that you think there might be something there, but it hasn't been provided to us.

[00:41:01] Speaker 04:
This is anyone is asked.

[00:41:05] Speaker 04:
Have you been admitted?

[00:41:06] Speaker 04:
Have you been granted asylum?

[00:41:09] Speaker 04:
Have you been here more than 2 years continuously?

[00:41:14] Speaker 02:
I think they are certainly asked about immigration status, but certainly there's a complete absence of evidence of injury on that list.

[00:41:19] Speaker 02:
What do you mean they're asked immigration status?

[00:41:21] Speaker 02:
Well, if they were, if, for example, they're a citizen or a green card holder or if they've been granted asylum.

[00:41:26] Speaker 04:
And in fact, if you- It's on the form that they're asked, are you in those terms or do they just say, what's your immigration status?

[00:41:34] Speaker 02:
Your honor, I don't know the question that offhand.

[00:41:36] Speaker 04:
Right.

[00:41:36] Speaker 04:
So I guess I'm worried about sufficiency of the procedures here.

[00:41:38] Speaker 04:
This is what I'm asking.

[00:41:39] Speaker 04:
As to this, whether you statutorily qualify for expedited removal.

[00:41:45] Speaker 04:
And so far, there's absolutely no evidence that anyone has asked, have you been here more than two years continuously?

[00:41:53] Speaker 05:
to say that even if you are asked that, what is the next process?

[00:41:59] Speaker 05:
Because you're telling us that these officers are qualified in terms of training that even if that question is not on the form about their continuous duration, that they still ask these people.

[00:42:11] Speaker 05:
So if they're asked and then they say, yes, I have been here over two years, then what is that next step?

[00:42:18] Speaker 02:
They're given an opportunity to prove that evidence.

[00:42:23] Speaker 02:
The Kistano declaration submitted in this court walks through that a little bit.

[00:42:27] Speaker 02:
Let me just go to that if you don't mind.

[00:42:29] Speaker 02:
They explain the multiple different things that they would accept to show continuous residents.

[00:42:33] Speaker 02:
They explain this is

[00:42:35] Speaker 02:
paragraph 6 of the external declaration.

[00:42:37] Speaker 02:
They would accept evidence such as bank notes, leases, deeds, licenses, bills, church records, receipts, birth records, school records, employment records, tax records, or even the alien statements to the immigration officer or agent.

[00:42:51] Speaker 05:
But I'm sorry, just quickly, but are you are you referring to that list with respect to the 2025 designation as opposed to the old process?

[00:43:00] Speaker 02:
This is the process that applies to everyone and has applied for some time.

[00:43:03] Speaker 02:
I don't believe there's been any changes in these processes.

[00:43:06] Speaker 04:
When do they under the processes that now placed into this new extension of the statute.

[00:43:16] Speaker 04:
When are they given a chance to get this information when and how.

[00:43:20] Speaker 02:
They are given a chance, I believe, to make a phone call to people to do that.

[00:43:24] Speaker 02:
I believe they're also given an opportunity to, if necessary, to gather those documents that they may have collected.

[00:43:31] Speaker 04:
This is really, I think, important.

[00:43:36] Speaker 04:
So let's assume you've got a raid on a workplace somewhere.

[00:43:41] Speaker 04:
and lots of people are rounded up.

[00:43:44] Speaker 04:
And there's reason to believe, I guess you would claim reason to believe that there are folks there who've been there, are there unlawfully, injured unlawfully, sorry.

[00:43:57] Speaker 04:
Tell me step by step what happens.

[00:43:58] Speaker 04:
So the agents have them in custody.

[00:44:02] Speaker 04:
What happens next?

[00:44:04] Speaker 02:
Uh, the agents will ask them questions to, uh, we'll ask them about, uh, you know, ask them questions about anything that might be relevant as to ascertaining their removability or there, whether or not.

[00:44:16] Speaker 04:
Let me ask them about you say immigration status and then credible fear.

[00:44:23] Speaker 04:
I don't have the exact formulation of it, but they are definitely being asked about fear of, I guess, persecution, torture.

[00:44:29] Speaker 04:
Um,

[00:44:32] Speaker 04:
So they're asked about those things.

[00:44:34] Speaker 04:
And if someone says no, because they are confused about them, their immigration status is they came here without documentation.

[00:44:41] Speaker 04:
So I think the answer to that is no, even though they've been here five years to assume this.

[00:44:46] Speaker 04:
So they say, no, I didn't come in here with lawful documentation.

[00:44:50] Speaker 04:
No, I'm not facing a credible fear.

[00:44:53] Speaker 04:
Then what happens?

[00:44:54] Speaker 02:
In that case, I think they would be asked the question about how long they've been present.

[00:45:01] Speaker 04:
But there's nothing in the record that shows that, and the record so far shows the opposite.

[00:45:05] Speaker 04:
So let's assume they aren't asked that question.

[00:45:08] Speaker 02:
Your Honor, if you think... What happens?

[00:45:12] Speaker 04:
Well, we're fairly far down the hypothetical chain, but I think if they don't... Oh, I'm actually asking operationally how this works on the ground, because it sounds like it's... I mean, that's the whole rationalis.

[00:45:23] Speaker 04:
expedited super fast.

[00:45:26] Speaker 04:
So they are, they then taken into, uh, more permanent custody as opposed to initial detention for questioning.

[00:45:33] Speaker 04:
So they've been taken into custody if they have answered no to both of those questions.

[00:45:38] Speaker 02:
Uh, I think that would typically be what would occur.

[00:45:41] Speaker 04:
Okay.

[00:45:41] Speaker 04:
And then they are taken to a detention facility or a processing facility.

[00:45:45] Speaker 04:
Is that right?

[00:45:47] Speaker 02:
It could be.

[00:45:48] Speaker 02:
It may vary based on whether they're apprehended and where the circumstances are and what the detention capacity is.

[00:45:54] Speaker 02:
It's possible they might be paroled for a period of time.

[00:45:57] Speaker 02:
All of those are variables that are not squarely within the record.

[00:46:03] Speaker 02:
So I can tell you what my understanding of that is.

[00:46:04] Speaker 02:
I don't know that that is covered comprehensively.

[00:46:07] Speaker 04:
Let's assume they're detained.

[00:46:10] Speaker 04:
That's privacy since you probably don't want to parol people back in.

[00:46:17] Speaker 04:
And what evidence is there that people have the time and there's the resources at the facility for everyone who's now been rounded up, plus everyone who's already in detention or in the processing facility, to make a phone call, to have enough time for someone in their family to find all this documentation to show how long they've been here and continuously?

[00:46:43] Speaker 04:
and bring that documentation to them, and then they have another opportunity to show that to whom?

[00:46:53] Speaker 04:
First to the immigration officer, then if necessary to the supervisor, and then... They've said no to the two questions, so there's no reason for an immigration officer to take it up to the supervisor.

[00:47:03] Speaker 04:
I assume once they say no and no on immigration, lawful immigration status and credible fear, I get if there's credible fear that goes up, but I assume

[00:47:14] Speaker 04:
But once they're in the detention facility, do you get questioned again by an immigration officer?

[00:47:18] Speaker 04:
What access do you have to an immigration officer?

[00:47:21] Speaker 04:
Can people bring you documentation?

[00:47:23] Speaker 02:
That is my understanding.

[00:47:25] Speaker 02:
We cited to 2019 guidance in our papers that we can provide that, you know, by 28 J letter of desired.

[00:47:32] Speaker 04:
My understanding in the record, there's 2019 guidance you keep referencing.

[00:47:36] Speaker 02:
I don't believe it's in the district court record.

[00:47:38] Speaker 02:
I can, again, this is an entirely theoretical problem for which there's no evidence that anyone has ever been injured or ever been confused about their burden.

[00:47:46] Speaker 02:
But to the extent

[00:47:47] Speaker 02:
that we want to talk about the possibility that this problem that does not, has never affected a named person might be a live one.

[00:47:56] Speaker 02:
We're certainly happy.

[00:47:56] Speaker 04:
Is it named?

[00:47:57] Speaker 04:
Are you including dose?

[00:47:59] Speaker 02:
They do not allege, first of all, they did not seek relief here.

[00:48:02] Speaker 02:
And second of all, they do not allege that the reason they were removed is because they didn't understand that it was their burden.

[00:48:08] Speaker 02:
Their declarations are skeletal.

[00:48:10] Speaker 02:
We don't know the reason as to why, the result of pain that it did.

[00:48:16] Speaker 05:
If I may too, I think for constitutional... They didn't understand that it was their burden.

[00:48:23] Speaker 05:
Is it not the government's burden to prove that they qualify for the removal?

[00:48:27] Speaker 02:
It is, in fact, their burden.

[00:48:29] Speaker 02:
The statute in section 1225, B1A, Romanet 3 requires the alien to affirmatively show to the satisfaction of the immigration officer that the alien has been physically present in the United States continuously for the two-year period prior to the date of the determination of inadmissibility.

[00:48:50] Speaker 02:
And so that is an allocation.

[00:48:52] Speaker 02:
That burden is allocated by Congress.

[00:48:54] Speaker 05:
And to do that, we have to assume

[00:48:57] Speaker 05:
Based on what you've told us that that question is being asked of them such that they could even meet this burden.

[00:49:04] Speaker 05:
Because it's not in the record that this is your process for this 2025 designation.

[00:49:10] Speaker 02:
Yes, Your Honor, it's also not in the record that anyone has ever failed to understand that and ever been removed under expedited removal as a result of not understanding that.

[00:49:19] Speaker 05:
Yeah, but the district court has put the stay in place, and I'd like to go back to in a minute for a stay versus injunction, because there weren't these modest procedural safeguards.

[00:49:29] Speaker 05:
She didn't say what to do, but just suggested that they were not there and that that was part of the make the world's likelihood of success on the merits.

[00:49:39] Speaker 02:
Your honor, I completely contest the idea that this remedy is anything other than a maximalist remedy.

[00:49:45] Speaker 02:
It is universal in scope.

[00:49:47] Speaker 02:
It completely invalidates the agency action at issue.

[00:49:50] Speaker 02:
It is not tailored in any way.

[00:49:52] Speaker 02:
In fact, the district court explicitly disavowed

[00:49:55] Speaker 02:
any tailoring whatsoever.

[00:49:57] Speaker 02:
So if you thought that this particular, if the continuous presence issue was a live constitutional issue, the relief should be limited towards that.

[00:50:04] Speaker 02:
If, for example, I can't understand why a remedy that would impose additional procedures for those willing to swear under oath that they've been present in the United States for more than two years wouldn't address that concern,

[00:50:17] Speaker 02:
and severely address the scope of relief here.

[00:50:20] Speaker 02:
Under that circumstance, if you thought this was reviewable, and if you thought this was a constitutional violation, and if you thought there was standing, you should have relief tailored to that particular problem.

[00:50:30] Speaker 02:
You shouldn't be invalidating the entire system.

[00:50:33] Speaker 04:
Well, I think what the district court said here is she wasn't going to dictate how to address this sorting problem.

[00:50:46] Speaker 04:
because she wanted to give the government, you know, discretion and flexibility to come back with means of dealing with it.

[00:50:55] Speaker 04:
Because you can imagine if they dictate a bunch of procedures, that gets challenged to an appeal for sort of hijacking the discretion and expertise of the agencies.

[00:51:04] Speaker 04:
And then when they say, all right, here's the problem, I'm not going to dictate it, you need to come back and show me how you're addressing this problem.

[00:51:14] Speaker 04:
Has the government gone back to show the district court how it's addressing the problem?

[00:51:20] Speaker 02:
No, Your Honor, but let me explain.

[00:51:21] Speaker 02:
I disagree with the premise that this is restrained in any way, shape, or form.

[00:51:26] Speaker 02:
This is not restrained.

[00:51:26] Speaker 04:
I'm sure you disagree with my premise.

[00:51:28] Speaker 04:
I've laid out to you how I understand the district court decision here, and do you dispute that she

[00:51:35] Speaker 04:
left it open for the government to identify procedures that would comply with her order?

[00:51:41] Speaker 02:
She did identify some ways, and I think they are at war with the statute itself in a way that the government could not satisfy.

[00:51:46] Speaker 04:
But she also said the government could identify alternative ways.

[00:51:48] Speaker 04:
Well, but for example, Your Honor... Yes, and so I just had a simple question, is have you gone back and said, and even if she didn't, quite frankly, you could do this, but have you gone back to the district court and said,

[00:52:02] Speaker 04:
Here, you've misunderstood.

[00:52:04] Speaker 04:
We have this 2019 guidance.

[00:52:07] Speaker 04:
And someone somewhere made clear that all these officers know that that guidance applies now in 2025 to this whole new application or whole new adoption, this whole new regime, where we're now bringing those procedures into the interior of the country.

[00:52:24] Speaker 04:
And when we do that, we're bringing in this 2019 guidance, assuming it says what you recall that it says,

[00:52:31] Speaker 04:
And so we've got the protections that need to be in place.

[00:52:37] Speaker 02:
No, Your Honor, we have not done that.

[00:52:38] Speaker 02:
If I may, I'd like to explain why we haven't and why we don't think that the flaws that the district court identified are addressable because they're inherent in the nature of the legal errors that we're seeking review of.

[00:52:50] Speaker 02:
In particular, some of the flaws that the district court disavowed finding any constitutional problem with the statute itself, but the problems she identified are inherent to the statute itself.

[00:53:00] Speaker 02:
For example, she found fault with the allocation of the burden of proof.

[00:53:03] Speaker 02:
But that is something that has been allocated by Congress that the DHS lacks the power to contravene.

[00:53:10] Speaker 02:
Another flaw she found in the system was that it moved too fast.

[00:53:13] Speaker 02:
But expedited removal, Congress has mandated that it be completed to the maximum extent possible within 24 hours and always within seven days.

[00:53:21] Speaker 04:
I will agree, and you agreed, that

[00:53:24] Speaker 04:
You, as the agency has an obligation to ensure that there are processes in place that are sufficient to ensure that the agency isn't subjecting someone to expedited removal who is statutorily disqualified from expedited removal.

[00:53:46] Speaker 04:
Now, you can tell me, Bern, to prove all you want, what I'm trying to understand here is if Congress has said these individuals are not eligible, what has the Secretary done to ensure what in this record before us?

[00:54:08] Speaker 04:
You want to send something in later, you can, but please answer it based on the record before us now.

[00:54:12] Speaker 04:
That's how I've been able to prepare for this case.

[00:54:16] Speaker 04:
And that is to ensure that you are not removing individuals who are statutorily disqualified from removal.

[00:54:24] Speaker 02:
What the record shows is the secretary is using the same the same procedures that have been used for decades and for people that have arrived by see who are subject to expedited removal that we just don't know the answer already several times now.

[00:54:36] Speaker 01:
I think he's answered this question several times.

[00:54:38] Speaker 04:
Well, it's there's nothing more that tells us how you deal with the sorting problem now.

[00:54:44] Speaker 04:
for people, I mean, you're talking about a little tiny population and there's just no record one way or the other on that.

[00:54:51] Speaker 04:
And again, the problem with expedited removal is people hardly have the time to complain.

[00:54:55] Speaker 04:
And so here you are now dealing with land-based entries and a whole new application of this program to a broad swath.

[00:55:08] Speaker 04:
I mean, the entire United States now

[00:55:13] Speaker 04:
Um, and I assume you don't deny that there are a lot of people in the interior of this country that will have been here continuously more than two years.

[00:55:26] Speaker 04:
Do you think that am I, that I could be all wrong about that premise?

[00:55:29] Speaker 02:
No, we certainly believe that there are millions of people here that are unlawfully present to the United States.

[00:55:34] Speaker 02:
Some of whom have been here unlawfully present for some significant period of time.

[00:55:38] Speaker 04:
All we need is more than two years at this point.

[00:55:40] Speaker 04:
And so.

[00:55:42] Speaker 04:
I guess I'm still grappling with the sorting process here.

[00:55:47] Speaker 04:
When you keep saying that Congress said this and Congress said that, we have to read that in light of all the other things Congress did say, including don't apply it to these people.

[00:56:02] Speaker 02:
Certainly, Your Honor, but we also don't think there's a viable due process claim there, that there's not an interest in more procedures and ultimately the procedures being used to ascertain whether or not someone has a substantive right to remain in the United States as opposed to a procedural right to a different set of procedures.

[00:56:21] Speaker 02:
those are robust.

[00:56:23] Speaker 02:
The Supreme Court looked at them extensively and found that the risk of error was allocated to the government.

[00:56:31] Speaker 02:
That's 77% of people that expressed a credible fear were then, that fear was found credible.

[00:56:39] Speaker 02:
They were signed to section 240 proceedings.

[00:56:40] Speaker 02:
But only 15% have been

[00:56:42] Speaker 02:
them were ultimately granted asylum.

[00:56:44] Speaker 02:
So 85% of those people, the screening is so robust and assigns so much risk of error to the government that 85% of people who are found to have a credible fear and expedited removal have a non-meritorious asylum.

[00:56:58] Speaker 02:
And we think that procedure is robust and sufficient to adjudicate these things.

[00:57:03] Speaker 04:
And certainly as to the issue- These things being the credible fear issue.

[00:57:07] Speaker 02:
Yes, Your Honor, but that's ultimately what this is geared at.

[00:57:11] Speaker 02:
Procedures are used to determine that in people's immigration status.

[00:57:15] Speaker 02:
We don't do section 240 versus expedited removal as an end to itself.

[00:57:19] Speaker 02:
And that's what the Supreme Court recognized in the O-1 case.

[00:57:22] Speaker 05:
But where in the opinion does the district court ever compelled the government to do something hasn't she only provided her reasoning for postponing the effective date of the designation and then therefore preserving the status quo pre January 2025.

[00:57:38] Speaker 02:
Your honor, I think this is absolutely identical in function to a prohibitory preliminary injunction.

[00:57:43] Speaker 02:
It operates no differently.

[00:57:45] Speaker 02:
And in fact, the district court used the winter preliminary injunction test to determine whether or not the issue requires you to compel some act.

[00:57:55] Speaker 02:
No, Your Honor, a prohibitory injunction would just prohibit us from taking acts, which is taking acts under this action.

[00:58:02] Speaker 02:
This is in all ways.

[00:58:06] Speaker 05:
Yes, prohibiting from taking acts that violate due process.

[00:58:10] Speaker 02:
But in all manners except styling, this functions like a prohibitory preliminary injunction.

[00:58:18] Speaker 05:
And yet they brought this as a stay under 705.

[00:58:23] Speaker 05:
It did not go under Route 65 or anything else.

[00:58:26] Speaker 02:
Right.

[00:58:26] Speaker 02:
But they're doing that as an end run around section 1252 F1.

[00:58:30] Speaker 02:
We think that fails.

[00:58:31] Speaker 02:
We think that fails under the Supreme Court's decision in all among Gonzales.

[00:58:35] Speaker 02:
And we think that's another reason why a stay is warranted here.

[00:58:38] Speaker 02:
But the section 705 is not because they didn't want a preliminary injunction.

[00:58:41] Speaker 02:
This is an end run around the explicit prohibition on injunctions.

[00:58:45] Speaker 02:
But 1252 F1 doesn't stop there.

[00:58:48] Speaker 02:
It says anything that enjoins or restrains a covered provision.

[00:58:52] Speaker 05:
And the expedited... What's that about enjoins or restrains?

[00:58:55] Speaker 05:
Why do you take that to mean that somehow that is enjoining restraint aren't the same thing?

[00:59:02] Speaker 05:
You know, when you think about the belt and suspenders way of looking at language where you're trying to mean the same term as the prior term so that we cover all release and that there are no ambiguities, gaps, or loopholes.

[00:59:16] Speaker 02:
So for multiple reasons, Your Honor.

[00:59:17] Speaker 02:
The first of all is we do think that enjoins or restraints is not a doublet.

[00:59:23] Speaker 02:
It actually has independent meaning.

[00:59:24] Speaker 02:
If you looked at 1252 F2, it uses just the word restraints.

[00:59:28] Speaker 02:
But 1252 F1 uses enjoins or restraints.

[00:59:32] Speaker 05:
Well, Justice Alito and Alimon Gonzalez defined restraint consistent with injunctions, orders that inhibit particular actions.

[00:59:42] Speaker 02:
He also defined restraints to mean, and I apologize, my notes have become a bit of a mess here.

[00:59:48] Speaker 05:
He defined restraints to refer to one or more forms of temporary injunctive relief, such as a temporary restraining order or preliminary injunction.

[00:59:58] Speaker 02:
But he didn't stop there.

[01:00:00] Speaker 02:
He defined restraint, quote, restraint means to, quote, check, hold back, prevent a person or a thing from some course of action, end quote.

[01:00:09] Speaker 02:
That's 596 U.S.

[01:00:11] Speaker 02:
at 549.

[01:00:12] Speaker 02:
This section 705 stay absolutely restrains the government from using the expanded expedited removal designation to use expedited removal on people.

[01:00:23] Speaker 05:
Then would every stay operate as an injunction under your theory, even though they're in the statutes, they are using terms of stay, and then there are certain places where you use injunctive relief.

[01:00:36] Speaker 05:
In fact, section 1251 F says limit on injunctive relief.

[01:00:40] Speaker 05:
So Congress had to mean a distinction in these terms.

[01:00:43] Speaker 02:
I don't think so, Your Honor.

[01:00:45] Speaker 02:
I think again, F2 uses just enjoins.

[01:00:48] Speaker 02:
F1 uses enjoins or restrains.

[01:00:50] Speaker 02:
If it doesn't cover something beyond injunctions, then that language is superfluous in violation of the one of the cardinal principles of statutory interpretation that we don't read any word or phrase to be superfluous.

[01:01:01] Speaker 02:
Also, the effect of the Section 705 stay is precisely what Justice Alito for the court in Allman Gonzalez said is something that restrains.

[01:01:13] Speaker 02:
The Section 705 stay does precisely what the Supreme Court defined restrained specifically within the context of 1252 F1 to me.

[01:01:22] Speaker 05:
But is the canon against their plusage absolute?

[01:01:25] Speaker 02:
Of course not, Your Honor, but it certainly has very strong purchase here where the very next subsection doesn't use it, so you would think a different result would obtain.

[01:01:34] Speaker 05:
And indeed this premium... And why doesn't join have to mean stay under your theory?

[01:01:38] Speaker 05:
Again, it sounds like you would always have a stay that means an injunction.

[01:01:41] Speaker 05:
Why couldn't it also just mean another form of a temporary injunction?

[01:01:47] Speaker 02:
Because that's not the plain meaning of the word restrain.

[01:01:50] Speaker 02:
We know that restrain isn't surplusage.

[01:01:52] Speaker 02:
It has some additional meaning.

[01:01:53] Speaker 02:
And then the Supreme Court has gone to the trouble of telling us exactly what that meaning is, defining restrain.

[01:01:58] Speaker 02:
And the Section 705 stay fits that meaning to a T. But even if we didn't have 1252 F1 here, you would still have traditional principles of acrobatics.

[01:02:08] Speaker 05:
What's the plain meaning of the word stay, since you seem to be focused on injunction?

[01:02:11] Speaker 05:
What's your plain meaning of stay?

[01:02:14] Speaker 02:
I think it's very close to what restraint means to check, hold back, or prevent, as the Supreme Court would define in Olloman-Gonzalez.

[01:02:22] Speaker 02:
I think that's exactly what a state does.

[01:02:25] Speaker 02:
But beyond that, I think even if you don't think that 1252F1 applies, Section 705 clearly incorporates traditional equitable principles.

[01:02:33] Speaker 02:
And traditional equitable principles include the cost principle of a prohibition of universal relief, or even just more generally, tailoring relief.

[01:02:41] Speaker 02:
And we not only have a failure of tailoring here, we have an explicit refusal to conduct such a tailoring analysis.

[01:02:49] Speaker 04:
Let me just, Charles, do you have any more questions?

[01:02:52] Speaker 04:
No, thank you.

[01:02:53] Speaker 04:
All right.

[01:02:55] Speaker 04:
We'll give you some more time.

[01:02:56] Speaker 05:
Other than just indicating, I'm not sure if you had any authority for the definition you just gave.

[01:03:02] Speaker 02:
Your Honor, I was quoting from the Supreme Court decision in Alman Gonzalez, which was quoting a dictionary of some sort.

[01:03:06] Speaker 02:
I don't have that dictionary.

[01:03:07] Speaker 05:
No, I'm talking about definition on stay, the word stay.

[01:03:12] Speaker 02:
Your Honor, I don't have a dictionary definition in front of me.

[01:03:15] Speaker 04:
All right.

[01:03:16] Speaker 04:
Thank you very much.

[01:03:16] Speaker 04:
Thank you.

[01:03:20] Speaker 04:
Mr. Malakrishnan?

[01:03:28] Speaker 00:
Good afternoon, Your Honors, and may it please the court.

[01:03:31] Speaker 00:
Anand Balakrishnan for Appellee's Make the Road New York.

[01:03:38] Speaker 00:
I'm sure the panel has specific questions for me, which I'd be happy to answer.

[01:03:42] Speaker 00:
I would like to, if you would like to start, I'd be happy to answer them now or begin speaking.

[01:03:49] Speaker 01:
Yeah, I mean, go ahead.

[01:03:51] Speaker 01:
So I guess I'll start.

[01:03:54] Speaker 01:
on what seems to be a jurisdictional problem.

[01:03:57] Speaker 01:
Under 1252E3B, there is a 60-day statute of repose.

[01:04:04] Speaker 01:
It's not a statute of limitations.

[01:04:06] Speaker 01:
It says that any action instituted under this paragraph has to be filed no later than 60 days after the date of the challenged section regulation directive, guideline, or procedure is first implemented.

[01:04:20] Speaker 01:
And the procedures that are being challenged here have been implemented for many years, certainly far longer than 60 days.

[01:04:28] Speaker 01:
So we have precedent in our circuit MMV that says the 60 day statute of repose is jurisdictional.

[01:04:38] Speaker 01:
So maybe you could start there.

[01:04:39] Speaker 00:
Of course, Your Honor.

[01:04:40] Speaker 00:
As the district court explained in response to a challenge that was raised on that basis by the government below, the object of this challenge is not the regulations or the statute, but rather the designation and the subsequent guidance.

[01:04:55] Speaker 00:
The action that we filed was within 60 days of that, and thus we clearly meet the jurisdictional threshold if that's what it is in 1252.

[01:05:05] Speaker 01:
So the designation and the Huffman memorandum do not specify any procedures.

[01:05:11] Speaker 01:
They are simply expanding expedited removal to a larger class of individuals up to the statutory limit.

[01:05:18] Speaker 01:
But the designation and the memorandum themselves impose no procedures.

[01:05:23] Speaker 01:
The procedures that are being challenged as violation of due process are procedures that have long been in place.

[01:05:29] Speaker 00:
Your Honor, I think that's sort of confusing the jurisdictional threshold question as to what we're challenging with the sort of analysis of the claim that we're bringing, which is a due process challenge to the expansion of expedited removal through the designation.

[01:05:43] Speaker 00:
It's true that the designation does not specify any procedures.

[01:05:46] Speaker 00:
And in fact, that's part of the problem right now with it, which is that the procedures that have been on the books in some cases are not tailored for this radically new class to which it's being applied.

[01:05:55] Speaker 00:
And in other cases, are insufficient to deal with the unique challenges placed by them and the liberty interests of this new group.

[01:06:01] Speaker 01:
But the designation itself can't raise a due process problem because the designation simply says, we are going to enforce expedited removal to the statutory maximum.

[01:06:12] Speaker 01:
So that is consistent with the statute.

[01:06:16] Speaker 01:
And so there's no claim that expanding the class

[01:06:21] Speaker 01:
is a due process problem.

[01:06:23] Speaker 01:
It's that the procedures that are being used are inadequate.

[01:06:28] Speaker 01:
And so that claim seems to be barred by the 60-day statute of repose.

[01:06:35] Speaker 00:
Your honor, I think, you know, we'd rest.

[01:06:36] Speaker 00:
I do think, you know, of course, we haven't had a chance to fully brief this before the court.

[01:06:40] Speaker 00:
And I do think the district court reached it and that decision was correct.

[01:06:43] Speaker 01:
The district court did not even discuss MMV, which is a precedent from just a few years ago, which says this is a jurisdictional bar and deals with a very similar issue.

[01:06:52] Speaker 01:
and says there was no jurisdiction under this.

[01:06:56] Speaker 01:
And the district court, as far as I recall, doesn't even address this directly on point precedent.

[01:07:01] Speaker 00:
Your Honor, again, given that I'd be happy to submit briefing on it, I don't want to get anything wrong.

[01:07:09] Speaker 00:
That is, we haven't written yet before you.

[01:07:10] Speaker 00:
But if I recall correctly, the reason the district court didn't have to address MMV was because MMV dealt with a very different issue, which is when the challenge was filed more than 60 days from the specific writing that was being challenged.

[01:07:28] Speaker 00:
Here, MMV doesn't seem applicable to me, which is the reason the district court wouldn't have had to address it, given the grounds of its reasoning.

[01:07:40] Speaker 01:
That is not how I read MMV, but I guess we'll disagree on that.

[01:07:46] Speaker 00:
Your Honor, go ahead.

[01:07:49] Speaker 00:
I did want to just follow up on a couple of things that were being discussed.

[01:07:55] Speaker 00:
I think Judge Millett, you had talked about certain procedural problems.

[01:07:59] Speaker 04:
I think we have some more jurisdictional stuff we probably have to get through.

[01:08:05] Speaker 04:
On what basis are you challenging the designation itself, the designation order itself, as opposed to the procedures implementing it?

[01:08:15] Speaker 00:
I think specifically we're raising our due process challenge goes specifically to the designation, stating that the designation brings to bear against this new class of people an entire system of expedited removal that is not procedurally adequate to the liberty interests of this new group.

[01:08:35] Speaker 04:
So since, as Judge Rupp pointed out, neither the designation decision just says, I'm going to the full scope of the statute as is allowed and is our first prior decision and make the road one, I guess, now recognized.

[01:08:54] Speaker 04:
That's committed to agency discretion.

[01:08:55] Speaker 04:
It seemed like the Huffman memorandum was the

[01:08:59] Speaker 04:
implementation guidance.

[01:09:02] Speaker 04:
As soon as they say we're expanding this to the full breadth, you don't know what procedures are going to be applied now that it's reaching this new thing.

[01:09:15] Speaker 04:
It's just nothing in the designation that speaks to that topic.

[01:09:19] Speaker 04:
It could be they had a whole panoply of whole new procedures, or it could be that they didn't.

[01:09:25] Speaker 04:
But the answer to that is not in the designation.

[01:09:28] Speaker 04:
That's in the Huffman.

[01:09:29] Speaker 00:
So I guess just two points.

[01:09:33] Speaker 00:
I'm not sure whether the Huffman Memo in its entirety was sort of setting out procedures, but we were really focused on one part of that memorandum, which was bringing expedited removal to bear against people who had affirmatively applied for asylum, which is not an issue at this stage right now on appeal.

[01:09:49] Speaker 00:
But I do think that

[01:09:52] Speaker 00:
The designation is the document and the agency action, the writing under E3, which is bringing the statute and all accompanying procedures into effect against this new group of people.

[01:10:05] Speaker 00:
It provides the appropriate object of judicial review.

[01:10:09] Speaker 00:
It provides jurisdiction under E3.

[01:10:11] Speaker 00:
And I think the question that the district court was reviewing correctly was whether the effect of the designation was to deprive individuals of their due process.

[01:10:21] Speaker 00:
And that's

[01:10:22] Speaker 00:
the sort of framing the district court adopted and I think absolutely correct because otherwise you would have sort of this fundamental problem which is that you know well it's sort of you know reflected in what's happened which is you could have regulations sort of created in 1996-1997 immediately after the statutes enacted but the statute has never been actually brought to bear against people

[01:10:46] Speaker 00:
in the interior of the country or outside of ports of entry.

[01:10:49] Speaker 00:
And so therefore, those regulations really have no meaning or effect until the designation is brought.

[01:10:54] Speaker 01:
That's how statutes of repose work, though.

[01:10:56] Speaker 01:
I mean, there's a harsh consequence to a statute of repose.

[01:11:00] Speaker 01:
But that is the consequence of a statute of repose.

[01:11:03] Speaker 01:
It doesn't matter that there may be new people against whom a certain policy is applied.

[01:11:09] Speaker 01:
A statute of repose means what it says.

[01:11:13] Speaker 00:
I understand, but I think that in this situation, in 1252E3, even if it were a statute of repose or some other statute of review, is in fact guaranteeing specifically constitutional review of new writings, which is exactly what the district court did here and what our action brought.

[01:11:31] Speaker 01:
But the constitutional review is still subject to the 60-day statute of repose.

[01:11:36] Speaker 01:
The constitutional claims aren't carved out from that.

[01:11:39] Speaker 00:
That's correct.

[01:11:39] Speaker 00:
Under E3, they are sort of covered by the statute.

[01:11:42] Speaker 00:
But I think that, again, this was the basis of the district court's reading.

[01:11:47] Speaker 00:
And I think the district court's reading of the statute was entirely correct to guarantee judicial review over this designation and its constitutional impacts on millions of people within the United States.

[01:12:01] Speaker 01:
Can I ask you about the APA?

[01:12:02] Speaker 01:
So under Make the Road 1, we said that this almost identical designation decision was committed to agency discretion by law.

[01:12:14] Speaker 01:
And so something that is committed to agency discretion by law, then there's no APA cause of action.

[01:12:21] Speaker 01:
So how do we get an APA so-called stay under 705?

[01:12:27] Speaker 00:
I understand your question on this one.

[01:12:29] Speaker 00:
I want to be completely open with you that this is an issue that I had not prepared to address at this argument, so would appreciate sort of the ability to put it in writing because I am.

[01:12:38] Speaker 00:
I don't want to state anything that's incorrect or sort of not supported by statutory text at this moment.

[01:12:44] Speaker 00:
So with those caveats, I'll just begin, which is that, as I understand the make the road, the first make the road decision was it was about whether, yes, like certain APA claims, arbitrary and capricious, was specifically what was being decided in that case, whether there was law to apply for it, and found that the way that the statute was written shielded it from judicial review.

[01:13:08] Speaker 00:
I think that constitutional claims are very different.

[01:13:12] Speaker 00:
There is sort of I think the formal way of that

[01:13:16] Speaker 00:
we understand in the district court understand is there's no discretion to violate the Constitution.

[01:13:20] Speaker 00:
So we set outside of those bounds.

[01:13:23] Speaker 01:
Sure.

[01:13:23] Speaker 01:
Of course, there's no discretion to violate the Constitution.

[01:13:26] Speaker 01:
But the APA specifically covers constitutional claims.

[01:13:31] Speaker 01:
And Make the Road 1 says there's no APA cause of action for things that are committed to agency discretion.

[01:13:37] Speaker 01:
So then the APA is off the table.

[01:13:40] Speaker 01:
So Make the Road could bring an ultra-virus claim.

[01:13:43] Speaker 01:
that this action that the designation is unconstitutional violates due process, but then make the road can't get an APA so-called stay.

[01:13:55] Speaker 00:
I understand.

[01:13:55] Speaker 00:
And I think again here, and I apologize, Judge Rao, I really don't want to state anything that's not supported by either of us.

[01:14:02] Speaker 01:
This is a really important part of how Make the Road gets relief, though, because the entire premise of the stay is premised on the fact that there is an APA cause of action.

[01:14:13] Speaker 00:
I understand, Your Honor.

[01:14:14] Speaker 00:
This is not the same.

[01:14:15] Speaker 01:
Because if it was an Altravirus claim, then the only relief you could get is an injunction.

[01:14:19] Speaker 01:
And so just to confirm, I mean, I think you would agree that 1252 F1 prohibits the district court from entering an actual injunction.

[01:14:27] Speaker 01:
That's correct.

[01:14:31] Speaker 01:
So then an Altravirus claim wouldn't make the relief that it is seeking.

[01:14:35] Speaker 01:
You have to be

[01:14:38] Speaker 01:
in the APA space to get this so called APA stay.

[01:14:42] Speaker 01:
Otherwise, you run right into 1252 F1.

[01:14:44] Speaker 00:
I understand the framework your honor is setting out.

[01:14:48] Speaker 00:
And I think on this, like if you would, the court would like to hear more from me on this, I think it would probably best in writing after the hearing.

[01:14:58] Speaker 05:
But it's just lame, essentially, the you're challenging the lack of the new process for the broader scope of the enforcement.

[01:15:07] Speaker 00:
I think in a way, that's true.

[01:15:12] Speaker 00:
I think part of the due process problem here is in fact, as has been discussed already, the lack of procedural protections for certain aspects of the problem.

[01:15:23] Speaker 00:
I think that really at its core though, the basic fundamentals of due process that the Supreme Court has reaffirmed time and time again, notice a meaningful opportunity to be heard, those are completely lacking in the way that the

[01:15:42] Speaker 00:
Divided Removal System is being brought to bear against this new group of people by the designation.

[01:15:47] Speaker 00:
And it's not only from, I think there was a lot of discussion about the lack of process, lack of notice about the continuous presence requirement, but it extends beyond that as well.

[01:15:59] Speaker 00:
Because even if somebody were to, for example, know that they could or had to demonstrate affirmative presence to exempt themselves from the process,

[01:16:11] Speaker 00:
There's no guarantee of any time to do so, to collect those documents, to contact a third party, let alone a lawyer.

[01:16:20] Speaker 00:
And there is no process by which they can formally bring those to the attention of an immigration officer or contest

[01:16:29] Speaker 00:
any adverse findings by the immigration officer, or even correct gross error by an immigration officer.

[01:16:35] Speaker 00:
Those are reflected in the record, the documentation of the errors in the process that we provided the district court.

[01:16:45] Speaker 00:
And I think they were relied on by the district court in reaching our conclusion in this case.

[01:16:53] Speaker 00:
And I think that's really the core of the problem that the district court identified.

[01:17:02] Speaker 00:
Exactly how the government chooses

[01:17:05] Speaker 00:
to modify the process along with the new designation.

[01:17:09] Speaker 00:
I think it makes sense for the government to have the first crack at it and then submit it for judicial review.

[01:17:17] Speaker 00:
But I do think that the process as it stands now is too open to error with grave harm for those who it affects, both those who might be within the two years as well as the many who are outside of the two years.

[01:17:33] Speaker 01:
Mr. Balakrishnan, has Make the Road come forth with any particular plaintiffs who have suffered this particular harm?

[01:17:44] Speaker 00:
By particular harm, you know, we did identify- The harm that you say that they're not- I understand, Your Honor.

[01:17:49] Speaker 00:
Yeah, so I think that, you know, this was sort of brought by Make the Road, the organizational plaintiff as a pre-enforcement challenge in some ways.

[01:17:56] Speaker 00:
I mean, that statute, it was in effect, but there were people who

[01:18:03] Speaker 00:
There was a make the road members, for example, were in 240 proceedings when the government moved to dismiss those proceedings to place them in expedited removal.

[01:18:15] Speaker 00:
In the record before the district court, no individual make the road member that we identified had actually been placed in expedited removal yet.

[01:18:23] Speaker 00:
That was the reason that we sought to stay in the first place.

[01:18:26] Speaker 01:
So how do you know what procedures are being used?

[01:18:30] Speaker 00:
Well, it was incumbent on the government to come forward with the procedures that they thought would defend against the due process challenge that we had.

[01:18:38] Speaker 00:
In fact, I believe, if I recall correctly, at the end of the hearing, the district court specifically asked the government attorney, you know, what happens if someone's erroneously placed an expedited removal who's been here for longer than two years?

[01:18:51] Speaker 00:
and never got an answer from the government at that point.

[01:18:55] Speaker 00:
So there was an opportunity sort of for a full airing of the procedural, the procedures that the government thinks are in place for people.

[01:19:02] Speaker 00:
Other than that, what we had was evidence that we had gathered and, you know, which included sort of what we understood the policies in place that were relevant for this population were.

[01:19:14] Speaker 00:
And we presented that to the district court and it's in the record.

[01:19:18] Speaker 01:
How does that response intersect with the fact that Congress places the burden of proof of showing more than two years of continuous presence on the.

[01:19:30] Speaker 00:
I mean, I think that under the classic sort of Matthews balancing test, the fact that the burdens on the non-citizen in order to prove it would actually support the idea that there needed to be clear notice and additional time to meet that burden.

[01:19:44] Speaker 00:
Were the burden on the government in the first place, then perhaps lesser procedures could be required.

[01:19:48] Speaker 00:
But I think the fact that the statute places the burden on the non-citizen actually supports the position that the district court took, that there needed to be some process to do that.

[01:19:58] Speaker 00:
And again, this is,

[01:20:00] Speaker 00:
This is a situation where, in our record, even the individual plaintiffs in this case who were not party to the stay motion, if you look at their declaration and the expedited removal orders in their case, they had been in the country for nearly 10 years.

[01:20:14] Speaker 00:
They had also entered via visa.

[01:20:17] Speaker 00:
the expedited removal order, then this is in the record, essentially says you entered without inspection, which was false, and also said that you've been here for 10 years, which the presence for 10 years should have exempted them from ER.

[01:20:34] Speaker 00:
Yet, per the declaration in the record, that individual was removed from the country

[01:20:41] Speaker 00:
with her child within 24 hours of the encounter and not allowed to talk to a lawyer.

[01:20:48] Speaker 00:
This is the reality of expedited removal.

[01:20:51] Speaker 00:
It's not a theoretical question that errors happen.

[01:20:56] Speaker 00:
That's been shown by multiple reports that Congress had itself authorized to study the system and its errors and proposed corrections to it.

[01:21:05] Speaker 00:
And it's reflected in the record that we assembled and presented to district court.

[01:21:10] Speaker 00:
So none of these are abstract questions.

[01:21:13] Speaker 00:
These are real harms that occur because the designation is in place.

[01:21:19] Speaker 05:
Would you spend some time on the distinction between state and injunction as you see it and why you felt this particular relief and why you apparently contend that it is not injunctive relief?

[01:21:32] Speaker 00:
Of course, Your Honor.

[01:21:33] Speaker 00:
I think that there's, of course,

[01:21:39] Speaker 00:
The essential basics, I think, which the district court set out are that the Supreme Court, for example, in Nican, drew a formal distinction between the operation of a stay and injunctive relief.

[01:21:55] Speaker 00:
Some of the notable differences were, for example, that a stay operates against an agency writing or an agency policy, as opposed to in personam, like an injunction does.

[01:22:07] Speaker 00:
Another notable difference was that an injunction formally and legally understood.

[01:22:12] Speaker 00:
also not only runs against a specific party, but also exposes them to contempt and further supervision of the court over any such contempt proceedings.

[01:22:23] Speaker 00:
A stay does not.

[01:22:24] Speaker 00:
Of course, Nikken also, I think, is very careful in explaining that the dissent in Nikken pointed to many of the same arguments that the government makes here.

[01:22:33] Speaker 00:
For example, obviously, in any sort of like common sense or natural language way of speaking,

[01:22:41] Speaker 00:
The stay sort of imposes a practical, it can impose sort of a practical effect of, you know, stopping a certain agency action or stopping certain courses of conduct from being taken.

[01:22:53] Speaker 00:
But that was not sufficient in the can.

[01:22:56] Speaker 00:
Instead, it was the formal differences that remain.

[01:22:59] Speaker 04:
I think in this case here, as the government pointed out, you've got to deal with not just the enjoin language of F2, you've got to deal with the enjoin or restrain language in F1.

[01:23:11] Speaker 04:
So what work, in your view, is restraint doing one?

[01:23:17] Speaker 00:
I think here it's, my reading of it is very similar to the Fifth Circuit's reading of the same statute in the context of vacator at the end of a case, which is enjoining restraint as being used as sort of the common couplet, similar to like federal rules, civil procedure, section 65, to describe and sort of to talk about specific forms of restraint.

[01:23:39] Speaker 00:
And then they would have done that in F2 as well.

[01:23:41] Speaker 00:
But I think that, of course, there is, of course, the heading of 1252 F1, which we've already discussed, as well as other sort of textual clues, which is that, you know... It's just, I'm sorry, I'm still struggling with, you know, maybe the belt and suspenders would work if there were just one provision here.

[01:23:57] Speaker 04:
But when you have two provisions right next to each other, and one says enjoin, and one says enjoiner restraint,

[01:24:06] Speaker 04:
I'm not sure there's, I think we're duty bound to understand what restraint means that's different than enjoying in F2.

[01:24:16] Speaker 04:
And so I'm still not hearing from you.

[01:24:18] Speaker 04:
I think you're just saying enjoying, enjoying restraint, no real difference.

[01:24:24] Speaker 04:
It's really hard to use that in a case like this when Congress was so explicit in neighboring provisions.

[01:24:30] Speaker 00:
Right.

[01:24:31] Speaker 00:
But Congress was also explicit in neighboring provisions to sort of name stays, for example.

[01:24:36] Speaker 00:
And Congress elsewhere has known how to specifically preclude APA review.

[01:24:40] Speaker 04:
That's still not answering my question.

[01:24:41] Speaker 04:
What restraint?

[01:24:42] Speaker 04:
Do you have any meaning for restraint other than another word for injunction?

[01:24:45] Speaker 00:
I think the best reading of it is that it is, in fact, referring to the two different forms of injunctions, injunctions and temporary restraining orders.

[01:24:54] Speaker 00:
And that's the most consistent with the text.

[01:24:56] Speaker 04:
Why wouldn't they have wanted that in F2?

[01:24:58] Speaker 00:
It may be because F2 was referring to a specific form of order regarding the removal of a non-citizen from the country.

[01:25:09] Speaker 04:
But I can imagine any court getting papers very quickly, someone's about to be removed in the next 24 hours before the court even has time to get papers in on it, they're going to have to issue

[01:25:24] Speaker 04:
a temporary restraining order.

[01:25:26] Speaker 00:
So I'm not sure why removal would be different.

[01:25:28] Speaker 00:
I understand that there may be, you know, even if there were ambiguity that would point to restraint having some other meaning, I do think that there are certain things that would counsel against sort of reading restraints go beyond sort of the injunctive form.

[01:25:40] Speaker 04:
So you don't have a definition of restraint other than enjoined or temporary restraining order?

[01:25:45] Speaker 00:
That's correct, Your Honor.

[01:25:47] Speaker 00:
That's a definition.

[01:25:48] Speaker 00:
And I think that, you know, I just want to point out sort of one problem that comes from sort of an expansive reading and restrain outside of that language is that, you know, any form of order against a party could be understood to restrain them in some manner.

[01:26:06] Speaker 00:
You know, the declaratory judgment could be understood to restrain them in some manner from basically defining their legal actions.

[01:26:15] Speaker 01:
Why would we give restraint such a broad reading?

[01:26:18] Speaker 01:
I mean, when restraint is coupled with enjoin, there's a Supreme Court case called, I think, direct marketing, which talks about how restraint should be understood in its limited, equitable meaning.

[01:26:31] Speaker 01:
not just as any kind of prohibition.

[01:26:33] Speaker 01:
So there's actual Supreme Court case law saying that's how restraints should generally be read when it's coupled with enjoying.

[01:26:40] Speaker 00:
I understand, but I do think that any sort of any interpretation of it that would extend that would turn away from limiting it to sort of like inequitable form of injunction would in fact run into problems because then you would have cases where there could be no remedy provided because any remedy no matter its form or no matter its origin would be understood as a sort of

[01:27:03] Speaker 00:
in some way, a practical restraint on that party or the government in an immigration case.

[01:27:08] Speaker 00:
And so I think that runs the risk of going too far.

[01:27:12] Speaker 00:
And I think it's especially important, for example, in the 1252 E3 context, which is where we're at, where Congress specifically set out a process and guaranteed challenges that the validity

[01:27:26] Speaker 00:
of new writings implementing the expedited removal statute in this situation when there's a short limited there's a there's a small window of time in which to bring a challenge to a writing 60 days so in that form and congress specifically provided for systemic review of those new writings there needs to be a form of remedy that does in fact

[01:27:50] Speaker 00:
go to the legality of that writing and address its use as a facial matter.

[01:27:55] Speaker 00:
And I think that's another reason why it's extremely important to read the enjoin and the restrained language in a limited fashion to ensure that there is review and there is standing in these cases.

[01:28:06] Speaker 04:
Would a declaratory judgment be available?

[01:28:08] Speaker 00:
This court has already held, as I understand it, in the first make the road decision that declaratory relief is available.

[01:28:14] Speaker 00:
But nonetheless, declaratory relief might have other limitations that would not provide the systemic relief that Congress had intended for these sorts of challenges.

[01:28:23] Speaker 04:
What limitation are you concerned about?

[01:28:25] Speaker 00:
I think there may be the issue of, you know, declaratory relief is sometimes understood as party specific.

[01:28:33] Speaker 00:
So the relief, the judgment not extending to parties not before the court in that case, for example.

[01:28:41] Speaker 04:
declaratory relief ever be more broad?

[01:28:45] Speaker 00:
It may be.

[01:28:45] Speaker 04:
It seems like that's a reserved question.

[01:28:47] Speaker 04:
It hasn't been decided yet.

[01:28:48] Speaker 00:
That's correct, Your Honor.

[01:28:50] Speaker 00:
To my understanding, just be absolutely careful about it.

[01:28:54] Speaker 05:
Do you have any numbers?

[01:28:55] Speaker 05:
How would we say this?

[01:28:57] Speaker 05:
Congress was deliberate in using restraint, but it wasn't deliberate when it used the subheading limit on injunctive relief.

[01:29:06] Speaker 00:
I completely agree, Your Honor.

[01:29:08] Speaker 00:
And I think that's one of the reasons why the Fifth Circuit, for example, and the Ninth Circuit as well, more recently, understood and has read 1252f1 to look specifically to injunctive relief, which is the category described in the heading of the statute.

[01:29:31] Speaker 04:
Do you have any members who are parolees

[01:29:34] Speaker 00:
There are members who are parolees.

[01:29:36] Speaker 00:
But just in the record, however, I don't believe in the record it specifies that.

[01:29:43] Speaker 04:
So you're not seeing on behalf of parolees at this point?

[01:29:46] Speaker 00:
At this point, no.

[01:29:47] Speaker 00:
The stay is for people who are non-parolees.

[01:29:49] Speaker 00:
That's correct.

[01:29:50] Speaker 00:
The members we identified were people who were not parolees.

[01:29:55] Speaker 05:
And what would be your response to that?

[01:29:57] Speaker 05:
This provides essentially a nationwide injunctive or at least has nationwide impact.

[01:30:06] Speaker 00:
I mean, I think this goes back to sort of the distinction that we were discussing about the difference between a stay and injunctive relief.

[01:30:16] Speaker 00:
So there is, of course, that formal difference.

[01:30:18] Speaker 00:
I think that if Your Honor is asking about a different question, which is about whether if, in fact,

[01:30:29] Speaker 00:
It's a stay, but could be narrowed and whether there's any sort of like, whether a narrowed version of the stay would be appropriate in this case.

[01:30:38] Speaker 05:
Because make the road is suing and make the road is in New York, but yet.

[01:30:42] Speaker 05:
You know, depending on how we would word anything, it would go beyond just your membership.

[01:30:48] Speaker 00:
That's correct, Your Honor.

[01:30:49] Speaker 00:
And I think that the district court, again, addressed this twice, twice in our case and also in the companion case about expedited removal CHIRLA, which essentially did a couple of things.

[01:31:02] Speaker 00:
Which is, first, there's immense practical and also constitutional problems with conditioning the remedy on a display of membership.

[01:31:10] Speaker 00:
She canvassed these issues with regard to Make the Road Specifically, the fact that member status is not known.

[01:31:18] Speaker 00:
The membership is also shifting.

[01:31:20] Speaker 00:
There's no sort of clearly established sort of like membership ID that could be shown.

[01:31:25] Speaker 00:
And of course the constitutional issue with having to disclose identity to the government in order to get relief against an illegal policy.

[01:31:34] Speaker 00:
But I think that there's also an important structural issue here with ER, which is that the core of the procedural problem with expedited removal for this new group of people is that it doesn't really have any mechanism to screen people for whether they should be at expedited removal in the first place or to stop those proceedings, for example, when they manifest a fear.

[01:31:58] Speaker 00:
And there's no review of that.

[01:32:00] Speaker 00:
And when compounded with the fact that it can occur incredibly swiftly and people are detained without access to counsel, it also just raises really the practical question of how any sort of limited stay as to make the road members would even work when the process occurs quickly, when people are deported quickly, when they're cut off from family, friends, their community, any lawyer or the organization itself.

[01:32:23] Speaker 01:
I mean, I understand those practical concerns, but how is the universal relief consistent with the Supreme Court's decision in CASA?

[01:32:31] Speaker 00:
Well, I think, again, this is CASA.

[01:32:35] Speaker 00:
The Supreme Court was also clear it's limited to the statute there, the Judiciary Act of 1789.

[01:32:43] Speaker 00:
doesn't really address 705, 706 relief.

[01:32:47] Speaker 00:
So that interpretation of the statute really shouldn't apply to the stay issued by the district court here.

[01:32:56] Speaker 05:
And do you believe that we have appellate jurisdiction?

[01:33:02] Speaker 00:
You know, I understand, yeah, and when Judge Millett had raised that question earlier, it was not one that we had raised.

[01:33:11] Speaker 00:
I would have to look more closely at it.

[01:33:14] Speaker 00:
Of course, we didn't raise the claim in response to the government's motion for a stay here.

[01:33:20] Speaker 00:
There may be, again, I just want to be careful because we haven't briefed it and I haven't looked at it.

[01:33:26] Speaker 00:
There may be an argument there is no appellate jurisdiction over a 705 stay.

[01:33:32] Speaker 00:
There's also a question where even if there were appellate jurisdiction over a stay, whether the standard and test for determining under Carson for the appealability of a stay

[01:33:47] Speaker 00:
formally different in some ways from the question sort of addressed as to the interpretation of 1252f1 and the relationship between stays and injunctions.

[01:33:58] Speaker 04:
I think on that question, it's really very naughty because the Carson factors and particularly the can't effectively be challenged later

[01:34:13] Speaker 04:
wrong, which sounds like a common problem to me, I could be wrong, makes appeals of 405 stays much more difficult to obtain.

[01:34:25] Speaker 04:
But unless you're aware of anything, I don't know how else, other than 1292.81, 405 stays can ever be reviewed.

[01:34:37] Speaker 04:
There's nothing in the APA that I could find, which only talks about reviewing agency action.

[01:34:43] Speaker 04:
There's nothing that I could find in the usual appellate jurisdiction things that would otherwise speak to 405 stays.

[01:34:54] Speaker 04:
And it just seems we've got this test we're supposed to wrestle with here.

[01:34:59] Speaker 04:
On the other hand, it would seem quite odd to me that Congress would create this opportunity for 405 interlocutory stays before pre-adjudication stays.

[01:35:13] Speaker 04:
but never allow them to be judicially reviewed.

[01:35:21] Speaker 00:
I understand your question with it.

[01:35:25] Speaker 00:
I just, with candor, I don't think I have an answer standing here right now on that specific question.

[01:35:31] Speaker 04:
Do you have thoughts on this 2019 guidance in reference to here?

[01:35:36] Speaker 04:
I can't remember, and I'm sorry, I just remember what council said if it was introduced in district court, but not here.

[01:35:40] Speaker 04:
I don't think it's in the record at all, right?

[01:35:42] Speaker 00:
I don't think so.

[01:35:44] Speaker 00:
I was trying to check while I was sitting there.

[01:35:46] Speaker 00:
I don't recall it.

[01:35:48] Speaker 00:
So I don't know at this moment.

[01:35:50] Speaker 04:
So you're not familiar.

[01:35:51] Speaker 04:
You haven't seen this guidance before.

[01:35:52] Speaker 00:
I don't think.

[01:35:55] Speaker 00:
I don't know whether I've seen this recently.

[01:35:57] Speaker 00:
Yeah, exactly.

[01:36:00] Speaker 00:
Because we did sort of challenge the previous iteration of this designation.

[01:36:04] Speaker 00:
And so perhaps we saw it at that point in the case.

[01:36:09] Speaker 01:
Mr. McCristen, what precisely is the liberty interest here for people who are unlawfully within the United States?

[01:36:20] Speaker 00:
I think that, you know, the liberty interest is of course sort of remaining in the United States.

[01:36:26] Speaker 01:
Why would someone who's here unlawfully have a liberty interest in remaining?

[01:36:31] Speaker 00:
Because in many cases, the

[01:36:34] Speaker 00:
They're not actually, I mean, one simple answer is the fact that they're not removable at all under perhaps they have some sort of status already where or they might.

[01:36:44] Speaker 01:
Then they're not unlawfully within the United States.

[01:36:46] Speaker 00:
Or for example, they might have access to certain forms of relief, such as asylum withholding, any sort of number of visas and cancellation of removal.

[01:36:56] Speaker 00:
So there's a variety, you know, simply sort of like being here, quote, unlawfully doesn't

[01:37:02] Speaker 00:
eliminate the ability to stay here lawfully.

[01:37:05] Speaker 00:
That's the entire purpose of removal proceedings.

[01:37:10] Speaker 01:
I think it's important to be precise about this, because I think Make the Road says, well, there's a liberty interest in remaining.

[01:37:16] Speaker 01:
And maybe for individuals that the government has no evidence of their lawful status, they perhaps have a liberty interest in not being removed unlawfully.

[01:37:29] Speaker 01:
which is different than having a Liberty interest in staying here.

[01:37:35] Speaker 00:
I think I follow the distinction your honor's making, but it's not one that's really reflected in the case law, which does sort of specifically talk about removal from the country posing a grievous harm.

[01:37:47] Speaker 01:
For people who have some legal right to remain in the country.

[01:37:51] Speaker 00:
That's the entire question of sort of like removal proceedings at all, which is it's to assess people's claims for relief from removal and their underlying removability in the first place.

[01:38:03] Speaker 01:
Right, so until they can show that they are not subject to removal, their only liberty interest is in not being removed unmultifully.

[01:38:13] Speaker 00:
Perhaps, but I think that this is a little bit.

[01:38:16] Speaker 01:
Do you think that's just a semantic difference?

[01:38:19] Speaker 00:
I think that, again, I just want to be careful because I am sort of responding to this in the first time the government has raised this specific point on its stay motion.

[01:38:27] Speaker 00:
So, you know, it may, in fact, just be a semantic difference.

[01:38:31] Speaker 00:
Perhaps there's more there to my understanding.

[01:38:33] Speaker 00:
You know, this the case law doesn't draw sort of the distinction.

[01:38:37] Speaker 00:
I believe I think your honor may be drawing.

[01:38:39] Speaker 01:
But I think that, I mean, you know, looking at all the different cases together about the liberty interest, for instance, there's no liberty interest to enter the country.

[01:38:46] Speaker 01:
So if you're stopped at the border and you have no right to come in, then you have no due process rights.

[01:38:52] Speaker 01:
Whereas once you've somehow made it into the territorial United States, irrespective of how you came in, you have some

[01:39:00] Speaker 01:
some liberty interests.

[01:39:03] Speaker 01:
I'm just trying to square all of the different case law from the Supreme Court and this circuit in terms of understanding what is the liberty interest of someone who does not have a demonstrated lawful status and is subject to removal.

[01:39:17] Speaker 00:
Right.

[01:39:17] Speaker 00:
I mean, I think in a lot of cases, the problem is that the relief that may be available, it's developed and applied for through the removal proceeding itself.

[01:39:25] Speaker 00:
So the question sort of, again, this is something that would be happy to brief this question, you know.

[01:39:32] Speaker 05:
But the Supreme Court has indicated that the government suffers irreparable harm when it is stopped from effectuating its policy.

[01:39:40] Speaker 05:
So I would ask, why is that not the case here?

[01:39:43] Speaker 05:
Or is this different because of a constitutional violation?

[01:39:48] Speaker 00:
Your Honor, I think if I understood the question, this was, I guess, again, this sort of goes back to this question.

[01:40:00] Speaker 00:
This is sort of like the comparison between a stay and perhaps an injunctive form of relief.

[01:40:06] Speaker 00:
But even if it doesn't, the district court did weigh sort of like the need for a preliminary stay before the end of a case.

[01:40:17] Speaker 00:
and the actual sort of like purported injury to the government.

[01:40:22] Speaker 00:
I think here it's, I think here where it's sort of a unique position because

[01:40:28] Speaker 00:
The government has other forms of removal available to it, of course.

[01:40:34] Speaker 00:
It has the full final plea of 240 proceedings and also other forms of expedited proceedings where they are applicable.

[01:40:42] Speaker 00:
Those are fully available here.

[01:40:44] Speaker 00:
And I think that as the district court also recognized, there is no public interest or should be no government interest in administering a policy that has been

[01:40:56] Speaker 00:
deemed unlawful or unconstitutional.

[01:41:03] Speaker 06:
Do you have more questions?

[01:41:08] Speaker 06:
Thank you, Your Honor.

[01:41:10] Speaker 04:
Mr. Anthony, I think you asked for four minutes for rebuttal, is that right?

[01:41:14] Speaker 02:
That's correct, Your Honor.

[01:41:17] Speaker 02:
I'll try to be quicker than that.

[01:41:19] Speaker 02:
We might not be.

[01:41:21] Speaker 02:
Understood, Your Honor.

[01:41:23] Speaker 02:
If I may, I'd like to make four quick points.

[01:41:26] Speaker 02:
First is the standing.

[01:41:27] Speaker 02:
I believe the opposing counsel admitted that they have no members that are imminently likely to be placed in expedited removal.

[01:41:35] Speaker 02:
I think that is completely dispositive of the standing in court.

[01:41:38] Speaker 04:
I'm not sure they said that.

[01:41:39] Speaker 04:
I think they said they aren't in some of the Senate right now.

[01:41:44] Speaker 04:
They meet the criteria for being placed within the door.

[01:41:48] Speaker 04:
There are at least a substantial risk of being, I should say, substantial risk of being placed in it given government practices that are alleged.

[01:41:56] Speaker 04:
I mean, there's really no time to litigate when someone is in.

[01:42:02] Speaker 02:
Uh, your honor, I don't think there would be an exception.

[01:42:04] Speaker 02:
I mean, the summers requires eminence and they have not pointed to eminence.

[01:42:09] Speaker 02:
And in fact, I think you can see some of the flippancy, which with the, with which they've treated jurisdiction, they put standing and scare.

[01:42:15] Speaker 04:
I mean, there's, there's some serious questions here that both sides have missed.

[01:42:21] Speaker 02:
So.

[01:42:21] Speaker 02:
I think the scare quotes may have been flippant.

[01:42:23] Speaker 02:
But I take your point, Your Honor.

[01:42:25] Speaker 01:
The government has failed to make a number of jurisdictional arguments here.

[01:42:29] Speaker 04:
Understood, Your Honor.

[01:42:32] Speaker 04:
I think their point is that they say they've got people who meet all the criteria of getting swept up in this, including those who have 240 proceedings when 240 proceedings are getting dismissed and then people are immediately arrested and subjected to expedited removal proceedings.

[01:42:50] Speaker 04:
I'm just qualifying what you said that I think the question before us is whether they've demonstrated substantial risk.

[01:42:56] Speaker 02:
Certainly, honor.

[01:42:57] Speaker 02:
And I think we're stacking contingencies on contingencies.

[01:43:00] Speaker 02:
So I didn't read them to be explaining that any of their members were likely to be imminently put in expedited removal.

[01:43:07] Speaker 02:
I think it would then be enough of their level of contingency that they would be placed in a situation as to their continuous presence claim that they wouldn't have notice, that they would fail to understand what was being put on them.

[01:43:17] Speaker 02:
We're now stacking probabilities on probabilities.

[01:43:20] Speaker 02:
And I think there's no way that that meets the summers.

[01:43:22] Speaker 04:
People who would

[01:43:25] Speaker 04:
Who are now at imminent risk of being put an expedited removal that you can identify.

[01:43:30] Speaker 04:
I mean, I think there's some category here that I'm missing.

[01:43:37] Speaker 02:
that are particularly like, I mean, I think, I mean, certainly it stayed at present.

[01:43:43] Speaker 02:
If that section 705 stay were to be stayed in present, I'm not where specifically of what the priorities would be, but I think, you know, potentially anyone subject to it, that, you know, resources were available to initiate expedited removal.

[01:43:58] Speaker 02:
I think those would be the targets.

[01:44:00] Speaker 02:
I don't know.

[01:44:00] Speaker 04:
I brought the suit when there was no 705 stay.

[01:44:02] Speaker 04:
So anybody who's statutorily

[01:44:06] Speaker 04:
eligible for expedited removal is an imminent risk.

[01:44:12] Speaker 02:
Not as the Supreme Court has defined eminence.

[01:44:16] Speaker 02:
I think that would be the more sort of probabilistic analysis that the dissent in Summers thought was efficient and that the majority rejected is efficient.

[01:44:24] Speaker 04:
Is that what they're supposed to show?

[01:44:26] Speaker 04:
That there are ICE agents now in my neighborhood?

[01:44:31] Speaker 02:
Summers requires them to identify members by name that are likely to have imminent injury.

[01:44:37] Speaker 04:
Well, I assume the government will include DOE names here and pseudonymous litigation in this context.

[01:44:44] Speaker 02:
I mean, I think if there were underlying facts as to those person's characteristics that would make out irreparable injuries.

[01:44:51] Speaker 04:
Should they have to give you the name, actual names of these individuals?

[01:44:56] Speaker 04:
I mean, obviously, as soon as they give you the name, they're at imminent risk.

[01:45:00] Speaker 02:
No, Your Honor.

[01:45:01] Speaker 02:
I think if they could make out the relevant characteristics and prove their burden through pseudo-anonymous declarations, I think that would likely suffice under Summers.

[01:45:11] Speaker 04:
I'm trying to figure out from you beyond what they've done here, which is I'm in the category of people that has been getting swept up in these things.

[01:45:21] Speaker 04:
You may dispute some of this factually.

[01:45:25] Speaker 04:
at this preliminary stage, they've alleged and haven't heard factual disputes about this, that they have clients who are in a category of people who are at risk of being, at substantial risk of being subjected to these expedited removal proceedings, both people who've been here more than two years and then people less than two years who I take it are challenging the credible fear processes.

[01:45:52] Speaker 02:
So, Your Honor, I think Summers is particularly instructive here.

[01:45:56] Speaker 02:
I think the approach that they've taken towards standing is to use this sort of probabilistic analysis.

[01:46:01] Speaker 02:
I'm asking you, can you tell me?

[01:46:04] Speaker 02:
I think they could use pseudo-anonymous declarations, but those declarations would have to set forth facts that would indicate that particular person.

[01:46:12] Speaker 02:
for whatever reason that they previously attempted to do so, or I believe that I am likely to face an imminent risk.

[01:46:24] Speaker 02:
I mean, certainly, the eminence is not dispensed with simply because it may be difficult.

[01:46:29] Speaker 02:
That's still what Article 3 demands.

[01:46:31] Speaker 04:
Civil litigation, there's all kinds of pre-enforcement litigation against agency action that you show I'm a regulated party and I'm at substantial risk of incurring, whether it's monetary or other harms.

[01:46:50] Speaker 02:
Well, certainly, those represent far easier cases.

[01:46:53] Speaker 02:
This court has a clear case law that the object of a regulation usually has self-evidence standing, such that usually they're one of the few that don't need to submit evidence of it.

[01:47:03] Speaker 02:
Lujan itself recognizes that the object of a regulation is more likely to have

[01:47:07] Speaker 02:
standing, but nonetheless, you still have to have eminence.

[01:47:11] Speaker 02:
What we have here is very much like the Sierra Club in summers, where if you take it probabilistically, one of their members probably would walk around in a plot of forest land that might be subject to the regulation.

[01:47:25] Speaker 04:
That wasn't good enough.

[01:47:29] Speaker 04:
more than two years continuously, has entered unlawfully, has been here more than two years continuously, but would take them a while to get any evidence of that together.

[01:47:46] Speaker 04:
Are they so unclear whether they'll be able to meet their burden of proof?

[01:47:51] Speaker 04:
Are they an object of this regulation?

[01:47:57] Speaker 02:
It would depend.

[01:47:58] Speaker 02:
They are the object in the sense that if you're challenging the expanded scope there, the object of it, as to whether or not the procedures are at issue, that is not the object of the challenged action.

[01:48:09] Speaker 02:
The procedures that are being used are the same procedures as we've discussed previously.

[01:48:13] Speaker 02:
And so I don't think that the object of the procedures.

[01:48:17] Speaker 02:
The second, I believe, opposing counsel said that the practical effect of the Section 705 stay was to, the practical effect was stopping action.

[01:48:26] Speaker 02:
I think that's exactly what Alderman Gonzalez says, 1252 F1 restraints.

[01:48:32] Speaker 02:
I think even if 1251 F1 didn't apply, this court would have to create a square split with at least the Ninth Circuit to hold the traditional equitable principles don't apply to Section 705, including the requirement of tailoring.

[01:48:45] Speaker 02:
The Ninth Circuit in the immigration defender's case has recognized that the CASA, the requirement of CASA and more generally the traditional equitable principles, including tailoring applies section seven of five states.

[01:48:57] Speaker 02:
And so we think that approach should be followed rather than split with.

[01:49:01] Speaker 02:
And then finally, if I can, just returning to the due process, we think there is ultimately clear that the procedures at issue provided by Congress are constitutionally sufficient for those that have not been lawfully admitted.

[01:49:16] Speaker 02:
And I think the Kaplan case is really instructive on that.

[01:49:19] Speaker 02:
And Kaplan, the alien had lawfully presented herself at a port of entry, had been lawfully rolled into the United States.

[01:49:26] Speaker 02:
had developed extensive ties in the interior of the United States, had lived for eight years in the United States, including with her father who was a naturalized citizen in the United States.

[01:49:38] Speaker 02:
Nonetheless, the Supreme Court said because you have never been admitted, you still get the due process rights as if you were at the border eight years ago.

[01:49:46] Speaker 02:
And I think that's controlling here.

[01:49:48] Speaker 02:
And there's no reason that people that have unlawfully entered the United States would possess any more due process rights than those who lawfully presented themselves at ports of entry and were lawfully paroled into the country.

[01:49:59] Speaker 02:
And indeed, the Supreme Court in the Williams case said an alien, quote, does not become one of the people to whom things are secured by our Constitution by an attempt to enter forbidden by our law, end quote.

[01:50:11] Speaker 02:
So I think for all of those reasons, their due process claim fails.

[01:50:14] Speaker 04:
Can I ask you quickly on 1292A1?

[01:50:17] Speaker 04:
If we do not treat 405 stays as being reviewable under 1292A1, is there any other avenue for repellent review of such an order that you're aware of other than supposed mandamus?

[01:50:41] Speaker 02:
I think it gets very weird in that circumstance, which is why courts have uniformly just treated section 705 stays appellate.

[01:50:49] Speaker 02:
I mean, I suppose it could be collateral order, but I think for many of the same reasons you would think, like if you thought that- I'm not sure that it's separate from the merits.

[01:51:01] Speaker 02:
I think for all the reasons your honor would doubt that if you doubted the 1292 a applied collateral order likely wouldn't.

[01:51:08] Speaker 02:
I suppose a 1292 B certification is theoretically possible, but a district court that is issued to stay is very unlikely to grant such certification.

[01:51:16] Speaker 04:
I'm not sure that's true.

[01:51:17] Speaker 04:
District courts do that not infrequently.

[01:51:21] Speaker 04:
But OK, so there's nothing else you're aware of other than?

[01:51:23] Speaker 02:
And then potentially mandamus.

[01:51:26] Speaker 02:
So 1292B.

[01:51:27] Speaker 02:
But certainly where remedy has all the characteristic effects of a preliminary injunction, I think there's every reason to believe the Congress would want that to be reviewable.

[01:51:40] Speaker 04:
So put a court for some of those reasons you've just explained include that section 405 order

[01:51:51] Speaker 04:
um, uh, is, um, qualifies under 1292A1 for review because it has a practical effect of an injunction without concluding that it's barred under F2 in the statute.

[01:52:07] Speaker 04:
And it is an injunction.

[01:52:09] Speaker 04:
That's the weirdness of all this.

[01:52:11] Speaker 02:
There is a slight weirdness to that that kind of calls to mind in the Obamacare case, for example, that the individual mandate was not a tax for purposes of the Tax Injunction Act, but was a tax for purposes of satisfying the Constitution.

[01:52:28] Speaker 02:
So I don't think that would certainly be unprecedented.

[01:52:32] Speaker 02:
I think the two statutes are looking at very different sort of

[01:52:37] Speaker 02:
characteristics, but I would also note the oddity of, if you conclude there's no appellate jurisdiction because this is an injunction, then the effect of it would be to tell the district court exactly what it needs to do ASAP, where you'd be dismissing our appeal because we, for the very reason that we're likely to prevail in the merits, which would lead to a very strange circumstance, I think.

[01:53:01] Speaker 04:
Any other questions?

[01:53:03] Speaker 04:
All right, thank you very much to both counsel for extra argument time in case submitted.