[00:00:00] Speaker 03: Case number 25-3209. [00:00:01] Speaker 03: Mennonite Church, USA, et al. [00:00:05] Speaker 03: unbalanced versus United States Department of Homeland Security, et al. [00:00:10] Speaker 03: Ms. [00:00:10] Speaker 03: Forkran, pretty balanced. [00:00:12] Speaker 03: Mr. Thao, pretty ability. [00:00:13] Speaker 03: Good morning. [00:00:17] Speaker 00: Good morning, Your Honors. [00:00:18] Speaker 00: May I please support? [00:00:19] Speaker 00: I'd like to reserve three minutes for rebuttal. [00:00:22] Speaker 00: My name is Kelsey Corcoran. [00:00:24] Speaker 00: I'm here on behalf of the Plaintiff Appellants, 27 Jewish and Christian-rooted denominational bodies and associations who assert First Amendment, RFRA, and APA challenges to the defendants' change in immigration enforcement policy at places of worship. [00:00:40] Speaker 00: As the district court recognized, plaintiffs began experiencing substantial attendance declines at their places of worship immediately after DHS announced the policy change with a widely reported press release explaining that the prior sensitive locations policy tied the hands of ICE and CBP officers, whereas the new unrestricted policy would empower them to go after undocumented immigrants at places of worship. [00:01:06] Speaker 00: Cain just submitted dozens of declarations from pastors and rabbis attesting to their attendance declines and attributing them to fear among congregants and ministry participants that ICE and CBP would engage in enforcement activity at their places of worship under the new policy. [00:01:23] Speaker 00: The district court nonetheless held that plaintiffs' attendance declines were insufficient to establish plaintiffs' standing without more substantial evidence that the policy change, rather than defendants' broader immigration crackdown, caused the absences and that the attendance would rebound if the sensitive locations policy was reinstated. [00:01:43] Speaker 00: This holding reflects numerous legal errors. [00:01:46] Speaker 00: First, both this court and the Supreme Court have consistently rejected any threshold of magnitude for Article III injuries. [00:01:54] Speaker 00: If the plaintiff fuel producers in Diamond Alternative Energy lost just $1 of revenue due to the challenge regulation, they had standing to bring their claim. [00:02:03] Speaker 00: And as we note in our reply brief, the United States Solicitor General agrees that Diamond stands for the proposition that standing does not depend [00:02:10] Speaker 00: on the extent of the injury in First Amendment challenges. [00:02:14] Speaker 06: Ms. [00:02:14] Speaker 06: Berger, can I ask you, I'm trying to understand how plaintiffs' claims and their injuries and their remedies, the remedies that you are seeking, line up. [00:02:31] Speaker 06: So there are two, I think, primary remedies being sought. [00:02:36] Speaker 06: One is a broader injunction [00:02:39] Speaker 06: against enforcement at churches except in exigent circumstances and with a judicial warrant. [00:02:45] Speaker 06: And the other is some kind of reinstatement of the myorchus enforcement guidance. [00:02:53] Speaker 06: So as to the broader relief, an injunction that would remedy First Amendment and RFRA harms, are the declines in attendance [00:03:08] Speaker 06: also an injury that goes to that relief. [00:03:13] Speaker 06: So the district court only talked about attendance declines with respect to the narrower injunction about the Mayorkas memo, but did not consider attendance declines as an injury that might support the broader injunction. [00:03:30] Speaker 00: Yes, I think the district court was focused on the the narrow restoration of the sensitive locations policy because that's the would revert us to the status quo and we acknowledge that going beyond the status quo would be difficult. [00:03:41] Speaker 00: We wanted to preserve that broader injunction because we do think that once you get to the merits that refer probably would would require restricting the sensitive locations policy even further. [00:03:55] Speaker 00: So, you know, thinking [00:03:57] Speaker 06: plaintiffs only seeking a preliminary junction on the narrower grounds about. [00:04:03] Speaker 06: about restoring the Mallorca memo? [00:04:05] Speaker 06: Are you also seeking preliminary injunction for the broader relief? [00:04:09] Speaker 06: Because that, I think, is potentially important to the standing question. [00:04:13] Speaker 00: Yeah. [00:04:13] Speaker 00: We proposed both in our proposed order. [00:04:16] Speaker 00: I think we focused primarily on the restoration of the sensitive locations policy, recognizing that that's the status quo, which would be the default at the preliminary injunction standard or at the preliminary injunction stage. [00:04:28] Speaker 00: I do think just thinking through your question on, we focused also on the restoration of the sensitive locations policy because I think standing is potentially more difficult there for the reason that the district court said, which is, can we show that the restoration of the policy? [00:04:45] Speaker 06: So if the attendance declines, which the district court assumed were both occurring and were a Article III type of injury, then [00:04:57] Speaker 06: Would that support the broader injunctive relief? [00:05:00] Speaker 06: There might be a closer tie of redressability with the broader injunction than with the narrower injunction. [00:05:07] Speaker 06: I see your point. [00:05:09] Speaker 06: I've looked through the hearing transcript and it's a little bit murky, but if plaintiffs are not pushing the broader injunction for the PI, then that's one thing. [00:05:19] Speaker 00: Yes, I think you make a good point that perhaps traceability is more difficult for the broader injunction because that wouldn't restore us to the status loop. [00:05:28] Speaker 06: Both traceability and redressability. [00:05:31] Speaker 00: Well, I think that if the broader injunction were put into place, that would, just as a matter of predictable behavior, cause some subset of our plaintiff's congregants to be comfortable going back. [00:05:43] Speaker 00: So I think redressability would be [00:05:44] Speaker 00: Satisfied there. [00:05:45] Speaker 00: I will say here before this court, we have focused, I think, almost entirely on the restoration of the sensitive locations policy, recognizing that that's the most likely preliminary injunction that we're going to get. [00:05:56] Speaker 00: So I'm comfortable focusing on that. [00:05:58] Speaker 00: And is that responsive? [00:06:00] Speaker 06: OK, so are you just conceding the broader injunctive relief at the PI stage is that? [00:06:05] Speaker 00: I don't understand the government or the district court to have reached the question of whether we would have standing for that broader injunction. [00:06:13] Speaker 00: I think you're correct that the district court was focused on standing for the narrower injunction. [00:06:18] Speaker 00: And so I'm comfortable. [00:06:21] Speaker 00: I think maybe what I'm saying is we're certainly not forfeiting that broader relief as the litigation goes forward. [00:06:26] Speaker 06: But you're saying you're not forfeiting it down the road on the merits, but you're not really presenting it as a basis. [00:06:31] Speaker 00: I don't think it's before this court right now because it isn't part of the decision below that we were appealing. [00:06:36] Speaker 00: I think on remand we could ask for that for the preliminary injunction again, but it wasn't really addressed below. [00:06:45] Speaker 05: Can you clarify what is the difference between the broader injunction and the narrow injunction that you're discussing? [00:06:50] Speaker 00: So the broader injunction would go beyond the sensitive locations policy and require the defendants to get either a judicial warrant or have extradition circumstances before conducting enforcement activity at a place of worship, whereas under the Mallorca memo, there is headquarters approval when you have a particular set of narrow circumstances that justify [00:07:14] Speaker 00: So I'll go back maybe to the legal errors. [00:07:20] Speaker 00: I identified the first one, which is the magnitude of harm. [00:07:25] Speaker 00: That means that if even a small subset of plaintiffs, congregants, and ministry participants likely would have continued attending, but for DHS's change in enforcement policy for places of worship, [00:07:37] Speaker 00: and likely would return if the sensible locations policy was restored. [00:07:41] Speaker 00: Plaintiffs have standing to seek preliminary injunctive relief. [00:07:45] Speaker 00: So the district court aired as a matter of law when it held that plaintiffs had to show that attendance would rebound under the injunction. [00:07:52] Speaker 05: So you have several theories of standing, which in your view is the strongest or most straightforward one, which is one that you would most rely upon? [00:08:00] Speaker 00: Yeah, I think the attendance declines, which is why I've started on that here. [00:08:04] Speaker 00: The other big category is the imminent threat of enforcement. [00:08:06] Speaker 05: It just seems attendance decline, because of CASA, when you get down the road, but maybe you just work this out down the road, the court ultimately would have to parse every individual [00:08:18] Speaker 05: House of worship or or plaintiff to see if they have standing. [00:08:23] Speaker 05: Because and look at the, I guess the facts of attendance for each of them. [00:08:27] Speaker 05: Yes, I think the injunction unless they had standing, whereas it seems. [00:08:32] Speaker 05: It seemed to me maybe more straightforward to go with imminence because. [00:08:35] Speaker 05: That everybody more cleanly. [00:08:39] Speaker 00: I think all 27 plaintiffs, as you say, have to establish their own standing. [00:08:44] Speaker 00: The associational plaintiffs can do that based on one house of worship. [00:08:49] Speaker 00: The denominations can do that as well, but the denominations are also one church, one synagogue, and so it's more of an organizational injury. [00:08:57] Speaker 00: 26 of the 27 plaintiffs [00:08:59] Speaker 00: have attested to attendance declines, substantial attendance declines. [00:09:05] Speaker 00: So the one that did not, we have a declaration ready to go on remand to submit to the court. [00:09:11] Speaker 00: So we will be able to get relief for all, or at least have standing for all of the plaintiffs based on the attendance declines. [00:09:17] Speaker 05: And you're relying primarily on the theory of large attendance declines and not just [00:09:23] Speaker 05: you know, a small one. [00:09:25] Speaker 00: So it is true that all of the plaintiffs have substantial attendance declines. [00:09:29] Speaker 00: But I think an important error in the district court's decision below was assuming that we would have to show all of those attendance declines were attributable solely to. [00:09:40] Speaker 05: No, I understand. [00:09:40] Speaker 05: I'm just talking about the magnitude of the decline. [00:09:43] Speaker 05: It seems like we don't have to reach whether one person not showing up would be a cognizable harm. [00:09:48] Speaker 05: You started out saying, I now judge into the $1. [00:09:52] Speaker 00: So the reason I think that it would be helpful for the court to reach that is because when it gets to traceability and redressability, the district court's rationale is, well, you also have this broader immigration crackdown. [00:10:04] Speaker 00: And there are probably people who wouldn't go back to church even if the sensitive locations policy is restored because they're so frightened of leaving their home. [00:10:13] Speaker 05: I was interested in that because it just seems to me if the sensitive locations [00:10:19] Speaker 05: policy is back and you presumptively are not enforcing or ISIS presumptively not enforcing at churches and synagogues, that becomes safer than your home. [00:10:27] Speaker 05: It becomes the safest place. [00:10:29] Speaker 05: I think it's interesting to me. [00:10:32] Speaker 05: It just seems to me that that would definitely drive people back to these places because in a world where they can be arrested in their homes and administrative warrants and things are a thing, it just seems to me that [00:10:45] Speaker 05: the churches and the past worship are the safest place. [00:10:48] Speaker 00: And then on top of that, you have the importance of communal worship in the Judeo-Christian tradition. [00:10:53] Speaker 00: So right now, the missing congregants are missing out on one of the most important things of their faith practice, which is being able to engage in group prayer, group worship, communion. [00:11:03] Speaker 00: And then the ministry participants went to the places of worship to obtain food, clothing, child care, health care services. [00:11:11] Speaker 00: These are not the sorts of services that they would be foregoing lightly. [00:11:15] Speaker 00: So I agree with you, Your Honor, that once churches and synagogues become safe places again, that they are going to be very eager to go back. [00:11:23] Speaker 02: Go ahead. [00:11:25] Speaker 02: The district court ruled that there needed to be some showing factually that [00:11:37] Speaker 02: the administration not just had rescinded this non-enforcement policy at places of worship, but that they also intended to target places of worship for enforcement. [00:11:55] Speaker 02: And since there was no evidence of that in the district court's view, there was no credible threat [00:12:07] Speaker 02: or of increased enforcement at churches. [00:12:14] Speaker 02: Can you just explain what you believe, if anything, is wrong with that reasoning? [00:12:20] Speaker 00: Yes. [00:12:21] Speaker 00: So, that goes to the imminent threat, the second bucket of harm and that is one of the district court's legal errors. [00:12:26] Speaker 00: There were two there. [00:12:28] Speaker 00: Um the district court was applying a heightened standard that this court is generally applied in the second amendment context. [00:12:34] Speaker 00: It does not apply to free free enforcement challenges under the first amendment uh and that is in Seegers V. Gonzalez. [00:12:41] Speaker 00: Um so, we would ask even if the court ends up resting on attendance declines that it would correct that legal error. [00:12:46] Speaker 00: So, on remand going forward, we're not um [00:12:49] Speaker 00: The other error of law in that holding is that the district court was narrowly focused on the likelihood of an actual or pending immigration raid at a church or synagogue. [00:13:03] Speaker 00: So we had a number of incidents of [00:13:05] Speaker 00: enforcement activity happening in parking lots and the district court discounted those because the officers hadn't actually gone into the places of worship. [00:13:15] Speaker 00: Uh the twenty-one, twenty-twenty-one Mallorca memo applied at or near places of worship and it didn't just apply to detentions and raids. [00:13:22] Speaker 00: It applied to surveillance and other activity and this is really important for us because much of the enforcement activity that's been happening to plaintiffs is uh a heavily armed CBP and ICE officers gathering in the plaintiffs parking lots and [00:13:35] Speaker 00: which is profoundly disruptive to the religious exercise that's happening inside the building, regardless of whether they attempt to go in. [00:13:43] Speaker 00: So we would respectfully request that the court clarify that as well. [00:13:48] Speaker 00: If I could go back to the second legal error on the attendance declines, the district court, or I should say Diamond Alternative Energy, squarely rejected any need for the sort of the evidence that the district court was demanding. [00:14:01] Speaker 00: In particular, statistical evidence and third-party declarations. [00:14:06] Speaker 00: So in Diamond, the Supreme Court held that the plaintiff fuel producers established traceability and redressability based on their own declarations attesting to likely third-party reactions to the challenged regulations, combined with common-sense inferences about the predictability of those reactions. [00:14:23] Speaker 00: Here, the district court faulted us for having declarations that were secondhand. [00:14:28] Speaker 00: That's now foreclosed under diamond and for not having objective objective statistical evidence and that's also foreclosed by diamond. [00:14:36] Speaker 00: Um and you know, I don't wanna um take too much of the court's [00:14:39] Speaker 00: I don't have time on this, but our declarations are highly specific on this point. [00:14:43] Speaker 00: We cite them in our opening brief at pages 29 to 33 and the reply brief at 13 to 16. [00:14:49] Speaker 00: Those declarations and attestations are certainly as robust, if not more so, than what they had in Diamond over my time. [00:14:57] Speaker 06: Ms. [00:14:57] Speaker 06: Corcoran, so many plaintiffs here have alleged serious harms to religious liberty under the First Amendment and RFRA potentially. [00:15:08] Speaker 06: I think it's part of the problem, though, for the PI is that if the focus is exclusively on what type of enforcement memo the government is relying on, that seems to be a much weaker basis for redressing the religious liberty harms. [00:15:28] Speaker 06: Because between the Mayorkas memo and the current policy, I mean, both policies would allow for enforcement at churches. [00:15:37] Speaker 06: You know, they're sort of a matter of degree, right? [00:15:39] Speaker 06: They don't say anything about whether such enforcement activity is restricted by the First Amendment or has to be done only in exigent circumstances under RFRA. [00:15:52] Speaker 06: So if the PI is based purely on enforcement discretion, how do you establish the traceability and redressability? [00:16:03] Speaker 06: I think that makes it, which is why I started with the other remedy, which is the broader injunction may well remedy the religious liberty harms. [00:16:14] Speaker 06: But this enforcement discretion, which is just a memo and a rescission of a memo, [00:16:19] Speaker 06: And both memos leave open lots of space for. [00:16:22] Speaker 06: Enforcement or non enforcement right and they're not a lot of examples that have been presented of rates inside churches and things like that so. [00:16:31] Speaker 06: So how does the relief you're seeking on the actually give you. [00:16:39] Speaker 06: redressability and traceability. [00:16:40] Speaker 06: I think that is the hard, I think that is hard despite the serious questions that have been raised. [00:16:47] Speaker 00: Thank you, Your Honor. [00:16:48] Speaker 00: And so I'll start with the profound difference of degree between the two policies and I'll get to the case law that applies there. [00:16:54] Speaker 00: Under the 2021 policy, enforcement at places of worship had to be avoided at [00:17:00] Speaker 00: at all times, except under a narrow, there's a enumerated list of examples, all involving exigent, compelling, not all exigent, but they're all compelling government interests and national security threat, imminent danger, things of that nature. [00:17:16] Speaker 06: But it was just guidance. [00:17:17] Speaker 06: So there could have been more enforcement. [00:17:19] Speaker 06: They could just revoke the guidance or ignore the guidance. [00:17:22] Speaker 06: Guidance isn't binding. [00:17:23] Speaker 06: It doesn't create any [00:17:25] Speaker 00: Well, the guidance was binding on the CBP and ICE officers. [00:17:29] Speaker 00: It can just be overturned. [00:17:30] Speaker 06: I mean, guidance documents. [00:17:33] Speaker 00: Well, but it was in effect. [00:17:35] Speaker 00: And what we're challenging is the overturning of the policy. [00:17:39] Speaker 00: So I don't think there's any question. [00:17:41] Speaker 00: And then when you were under those narrow circumstances, you needed headquarters approval, whereas under the [00:17:48] Speaker 00: The rescission memo, no approval is needed at all. [00:17:51] Speaker 00: There is a specific memo that says a local supervisor. [00:17:56] Speaker 00: Under the Mallorca's memo, they could delegate approval. [00:17:59] Speaker 00: Yeah, there's no evidence that that happened. [00:18:01] Speaker 06: But they could. [00:18:03] Speaker 06: Enforcement guidance is, you know, it's a peculiar kind of thing. [00:18:07] Speaker 06: It's not a protection. [00:18:11] Speaker 06: for religious liberty, it's just a self-imposed restraint on the executive branch. [00:18:15] Speaker 06: The nature of these guidance documents makes it very difficult to establish. [00:18:21] Speaker 00: So I would push back on that in the sense that the guidance memo is directive, it's mandatory at the CBP and ICE officers who are conducting this enforcement activity on the ground. [00:18:31] Speaker 00: And under the Mallorca memo, they were limited to compelling government situations involving imperative fact patterns. [00:18:39] Speaker 00: And even under those, if it wasn't exigent, you had to go to headquarters. [00:18:42] Speaker 00: And so moving to the case law, the Supreme Court's recent decision in Saenz v. Gutierrez, this court has some cases on point two like Matten State Legal Foundation v. Glickman. [00:18:52] Speaker 00: You don't have to show that the government will give you the relief you want. [00:18:57] Speaker 00: because of the judicial relief. [00:18:58] Speaker 00: I didn't say that very eloquently. [00:19:00] Speaker 00: But essentially, in science, the government argued, well, the plaintiff here is seeking DNA evidence by challenging this particular state law. [00:19:10] Speaker 00: We're not going to give him that evidence even if you overturn that state law. [00:19:15] Speaker 00: And what the Supreme Court said was that doesn't affect [00:19:19] Speaker 00: judicial redressability, because by striking down the law that's challenged, we are requiring the government to reconsider its position. [00:19:29] Speaker 00: And even if they ultimately end up doing the same thing, that is at least partial judicial redressability, which satisfies Article 3. [00:19:36] Speaker 00: And I would say that proposition applies here. [00:19:39] Speaker 02: Is the only difference between the old policy and the current policy [00:19:47] Speaker 02: that it's the delegation or is it also a different criteria that can be used currently to have enforcement at places of worship and that those criteria are lesser or lower bar so to speak than before. [00:20:15] Speaker 00: Yes, I think the difference in criteria is the most important distinction between the policies. [00:20:19] Speaker 00: I said just a minute ago what the criteria in the 2021 policy were. [00:20:24] Speaker 00: Now there are no criteria at all. [00:20:26] Speaker 00: The officers have unfettered discretion to use their common sense. [00:20:29] Speaker 00: So as an example, right now, [00:20:31] Speaker 00: a CBP officer could say, you know what, that church parking lot over there seems like a great place to set up because I know there are a lot of removable immigrants inside and we'll get them when they come out. [00:20:41] Speaker 00: Common sense, that's very efficient. [00:20:43] Speaker 00: That obviously wouldn't have been allowed in those 2021 policy because it wouldn't have fit within the types of circumstances in which enforcement activity was allowed. [00:20:52] Speaker 00: And then again, you would have had to have gotten headquarters approval. [00:20:55] Speaker 00: So that is a big enough difference. [00:20:57] Speaker 05: I'm sorry, I thought that they couldn't do that unless they got approval from their ASAC or ASOD. [00:21:03] Speaker 00: So I said CBP just now. [00:21:04] Speaker 00: CBP is not subjected to... I use CBP as my example for that reason. [00:21:10] Speaker 00: For ICE, if an ICE officer were to make that same decision, they would go to their local supervisor. [00:21:15] Speaker 00: I don't remember the exact acronyms. [00:21:17] Speaker 00: The ones you just gave were probably correct. [00:21:18] Speaker 05: I didn't realize it was different like that. [00:21:20] Speaker 05: So CBP, it's just at the discretion of any officer. [00:21:25] Speaker 05: With the approval of some, there are hundreds of these. [00:21:29] Speaker 05: Right, right. [00:21:31] Speaker 00: And even for ICE, it was verbal or written. [00:21:34] Speaker 00: So you could just call up the local supervisor and say, can I go set up in the parking lot down the street? [00:21:39] Speaker 00: He could say fine. [00:21:43] Speaker 06: Just to be clear, was that for the purposes of the PI, just restoration of the Mayorkas memo would be sufficient? [00:21:52] Speaker 00: We certainly have standing for that because it would at least partially redress our injuries. [00:21:57] Speaker 06: While the broader litigation proceeds? [00:22:01] Speaker 06: Yes. [00:22:03] Speaker 02: All right, thank you. [00:22:04] Speaker 02: We'll give you some time on rebut. [00:22:06] Speaker 06: Thank you. [00:22:19] Speaker 01: Mr. challenge. [00:22:21] Speaker 01: Good morning, your honors may please the court. [00:22:23] Speaker 01: Michael talent representing the federal appellees in this case on January 20th, 2025, DHS authorized federal immigration officials to use their discretion and common sense to decide whether to enforce federal immigration law at sensitive locations to include churches. [00:22:41] Speaker 01: Plaintiffs are 27 religious associations representing 38,000, a little over 38,000 different congregations and almost 10 million congregants scattered across the country. [00:22:52] Speaker 01: They claim that this policy will, if there is an ICE raid or an immigration enforcement action at their church, will cause them harm by trenching on their religious rights. [00:23:03] Speaker 01: Before they filed their suit two weeks after the Huffman memorandum was issued, and they filed their P.I. [00:23:10] Speaker 01: motion roughly a month later. [00:23:12] Speaker 01: in total and as a district court discussed in its opinion they have provided the court one example of an enforcement action on this record to support their claim. [00:23:22] Speaker 04: I'm sorry those declarations were filed in February of 2025. [00:23:25] Speaker 01: A month after the issuance of the Huffman memorandum. [00:23:29] Speaker 05: Right so you when you say only one example that was one example within like I guess two weeks of the [00:23:37] Speaker 05: of the policy going into effect. [00:23:39] Speaker 01: A month after the policy going into effect. [00:23:41] Speaker 05: A month, okay. [00:23:42] Speaker 01: It just seems like... Well, we've been litigating this now for a year. [00:23:46] Speaker 01: They filed their appellants brief in September. [00:23:50] Speaker 01: They only added two more examples. [00:23:52] Speaker 01: So I think we are dealing with maybe three examples. [00:23:55] Speaker 02: We weren't supposed to be finding facts here anyway. [00:23:58] Speaker 02: I mean, they could have added a hundred more declarations. [00:24:03] Speaker 02: To their brief, and I would think that your position would be, you know, that's not part of the district. [00:24:10] Speaker 02: Report of review, not a first. [00:24:13] Speaker 02: So I don't understand what your point of your argument is [00:24:16] Speaker 01: So the point of my argument is that they claim these enforcement actions are imminent. [00:24:21] Speaker 01: They claim that they are right targets for enforcement for any number of reasons. [00:24:26] Speaker 01: They have immigrant populations at a number of these congregations. [00:24:29] Speaker 01: These churches are located in areas where there is enforcement activity going on. [00:24:35] Speaker 01: They claim it is imminent. [00:24:37] Speaker 01: They have 38,000 of these congregations where enforcement actions could occur. [00:24:43] Speaker 01: In a month, they only pointed to one example. [00:24:45] Speaker 05: So, but for purposes of the legal analysis, it's not the number, it's just like, has it ever happened before, right? [00:24:52] Speaker 05: It just can't be numerical. [00:24:54] Speaker 05: And if there's been one within the last month and within a month of this happening, just for the legal analysis purposes, that means that there's been past enforcement and. [00:25:04] Speaker 05: But it's such a miracle. [00:25:06] Speaker 01: Well, no, what the Supreme Court said in Murphy and it's well established is past enforcement is only relevant for purposes of establishing future enforcement. [00:25:15] Speaker 05: And I think the point is, if you have the government hasn't disavowed that they're going to enforce under this policy, like, why have the policy if they're not going to use the policy? [00:25:25] Speaker 01: Well, again, even if we don't need to disavow in order to win out. [00:25:29] Speaker 05: Well, that's not in the case law. [00:25:30] Speaker 01: That's just an eminence. [00:25:32] Speaker 01: So disavowal appears in the kind of pre-enforcement Susan B. Anthony type of context. [00:25:38] Speaker 01: That's not this context. [00:25:39] Speaker 01: When you have an enforcement discretion, when the government has the ability to engage in enforcement at its own discretion, [00:25:46] Speaker 01: The courts never look to whether there's a disavowal to establish imminent standing. [00:25:51] Speaker 01: What had the court has looked to, what this court looked to in United Presbyterian Church, is whether there is evidence that the plaintiffs are going to be targeted for enforcement. [00:26:01] Speaker 02: So the complaint... But I guess going back to, okay, if we're supposed to be using our common sense here, what is the purpose of revoking the old policy? [00:26:15] Speaker 02: that said there would be generally a very high bar for any enforcement at places of worship. [00:26:23] Speaker 02: What's the purpose of revoking that policy unless you intend to ramp up enforcement at places of worship? [00:26:33] Speaker 02: I mean, why bother? [00:26:36] Speaker 01: I don't have in the record kind of the purpose. [00:26:40] Speaker 01: I would say that the Mayorkas Memo applied to more places than just places of worship. [00:26:46] Speaker 01: So I don't think you can draw a straight line from the rescission of the Mayorkas Memorandum to enforcing that places of worship. [00:26:53] Speaker 01: Okay, but places of worship was one of them. [00:26:55] Speaker 01: places. [00:26:56] Speaker 01: Even if the purpose was to allow, you know, to not tie the hands of immigration enforcement officials is what I think plaintiffs like to point to in the record. [00:27:04] Speaker 01: The facts in the record and what Judge Friedrich looked at in their declarations is that we have a situation where, yeah, maybe in theory this could allow enforcement at worship services, but it just hasn't manifested. [00:27:18] Speaker 02: It didn't manifest in the one month between the... Isn't the standard whether it's more likely? [00:27:24] Speaker 02: I mean, that's what the standard was in diamond alternative energy, right? [00:27:30] Speaker 01: Well, it has. [00:27:30] Speaker 01: So even if it's likely, I don't think you can say if there's 38,000 opportunities for enforcement to happen in a place of worship. [00:27:39] Speaker 01: And plaintiffs can only point to one in a month where they claim there's been an immigration blitz. [00:27:43] Speaker 01: And I would point the court to paragraphs five and six of the complaint, where they point out there's been, in the week after the Huffman memorandum came out and the administration announced it's more aggressive enforcement policies, there were 4,500 arrests, 1,000 on a Sunday, but only one occurred. [00:27:59] Speaker 02: If it's not about the one, then why doesn't the plaintiff associated with that one have standing? [00:28:06] Speaker 01: because they still need to show that there's going to be an imminent enforcement action at that church in the future. [00:28:11] Speaker 01: And there is nothing that they have provided in the record, and there's nothing that they've tried to bring in outside the record to this court to illustrate that. [00:28:20] Speaker 02: So what type of evidence is a plaintiff supposed to have to have stained? [00:28:26] Speaker 01: Well, the standard when we're dealing with a question of future enforcement discretion. [00:28:31] Speaker 01: So when they're not being directly regulated by the criminals, criminal statute, as would be the case, for example, in Susan B. Anthony lists and that line of cases, they need to show that enforcement is imminent, that they're being targeted. [00:28:42] Speaker 01: That's a standard in United Presbyterian Church. [00:28:45] Speaker 01: That's a standard in Clapper. [00:28:47] Speaker 01: again I think you can just look at the numbers and that's what Judge Friedrich did below when you have a significant when their position is they are right targets for enforcement action by DHS operatives and that this administration is aggressively enforcing immigration laws the natural tendency of this and I think this is actually their imminent argument is well we're going to have [00:29:11] Speaker 01: ICE raids or CBP raids at our churches at any moment. [00:29:17] Speaker 01: The fact that it hasn't happened undermines their claim that enforcement at these houses of worship is imminent in any, I think, kind of logical sense of the term. [00:29:28] Speaker 02: It seems to be a little bit of an interesting argument for the government to say, we're enforcing everywhere. [00:29:36] Speaker 02: We're ramping up enforcement everywhere. [00:29:39] Speaker 02: we are going to kind of remove a barrier to enforcing at places of worship. [00:29:47] Speaker 02: But the court should presume that by doing so, even though we're enforcing everywhere, we're not going to enforce at places of worship where we just remove the barrier to enforcing. [00:30:00] Speaker 02: Make that make sense. [00:30:02] Speaker 01: Well, I think the reason it makes sense is any time. [00:30:04] Speaker 01: So even if there is a policy allowing the government to engage in certain action, if there's a question about whether the action will occur, then the plaintiff hasn't established evidence. [00:30:16] Speaker 01: I think the cleanest, maybe kind of the neatest sentence appears in then Judge Scalia's opinion in United Presbyterian Church, where he says, it is not the law that a church is standing to challenge a statute [00:30:29] Speaker 01: that authorizes the government to get a warrant and then search the church property to seek a felon. [00:30:36] Speaker 01: Cases like Clapper, cases like United Presbyterian Church, cases like Laird v. Tatum, cases like Lyons v. City of Los Angeles, when the basic gist of the plaintiff's claim or injury is if this happens, the government exercises its discretion in a certain way in the future, I will be harmed. [00:30:55] Speaker 01: They have to show more than just the possibility of harm. [00:30:58] Speaker 01: An objective reasonable probability was a standard the court rejected in Clapper. [00:31:03] Speaker 01: So because of what Judge Rao was talking about, this is a guidance memorandum. [00:31:08] Speaker 01: This is kind of giving a guidance to DHS officials about how they can enforce laws potentially at these sensitive locations, including more than just churches. [00:31:19] Speaker 01: The individual plaintiffs here have to show an imminent enforcement action at a single church. [00:31:24] Speaker 01: And it's black letter law that past enforcement actions don't establish imminent future enforcement actions. [00:31:31] Speaker 01: They're at best helpful for predicting. [00:31:33] Speaker 06: Why doesn't the drop in attendance support their claims? [00:31:38] Speaker 06: Support their claims that they are facing, you know, that the broader enforcement efforts are causing a decline in attendance and that decline in attendance is an injury. [00:31:49] Speaker 01: Because as they came up here and they were very clear, they are challenging the rescission of the Mayorkas Memorandum and the Huffman Memorandum. [00:31:56] Speaker 01: So they can't just say because of the broader enforcement environment that's going on, our injuries are traceable to this specific policy decision by the Department of Homeland Security. [00:32:08] Speaker 06: So even absent this lawsuit, I mean, the government is bound by the First Amendment and by RFRA in the actions that it takes, whether [00:32:15] Speaker 06: that's immigration enforcement or other enforcement. [00:32:19] Speaker 06: So is it the government's position that there are no First Amendment or RFRA constraints on immigration enforcement at places of worship? [00:32:27] Speaker 01: I don't think it's the government's position that we are unconstrained by the Constitution and the laws of this country in anything we do. [00:32:33] Speaker 01: So there would be other, I think, to your point. [00:32:37] Speaker 01: Yes, this isn't a just go forth and ignore the Constitution, ignore the laws when you engage in enforcement actions. [00:32:44] Speaker 01: It is a use your discretion, use your common sense. [00:32:48] Speaker 01: The fact that- Act within the law. [00:32:49] Speaker 01: within the law, I think that's always kind of implied by any governmental directive. [00:32:55] Speaker 01: The fact that we haven't seen a slew of these enforcement actions at churches not only undermines their eminence argument, I do think it also undermines their argument that the decline in attendance is traceable to the decision to rescind the mayor's policy. [00:33:10] Speaker 01: And they express a lengthy [00:33:11] Speaker 06: Could you be making the same argument about the broader injunctive relief that plaintiffs are seeking, right? [00:33:16] Speaker 06: The broader injunctive relief being the First Amendment and RFRA require there to be exigent circumstances and possibly a judicial warrant to do this enforcement at a place of worship. [00:33:30] Speaker 06: Do you think the standing inquiries the same? [00:33:33] Speaker 01: I think they would be broadly the same here because they would still need to show that they are going to be imminently targeted by DHS. [00:33:41] Speaker 01: And again, we're dealing with a situation where the record shows one enforcement action at plaintiff's church and 38,000 possible targets that they claim are ripe for ICE action. [00:33:53] Speaker 01: The fact that it is not happening, I think, makes this a quintessential example of an abstract concern about probable future harm [00:34:01] Speaker 01: And a broader issue with, I think, kind of just trying to get the courts to superintend the policy of the United States government, which the Supreme Court's been very clear is not Article 3 is meant to prevent. [00:34:14] Speaker 05: Why isn't this case on eminence similar to Susan B. Anthony in that there is prior enforcement against one of the plaintiffs. [00:34:24] Speaker 05: So that was an issue one time for Susan B. Anthony. [00:34:28] Speaker 05: And also sort of targeting of a specific group, you know, and Susan B. Anthony was, you know, certain political groups who wanted to make political speech, but this policy does target houses of worship for enforcement in a way that previously they weren't. [00:34:47] Speaker 05: I mean, I guess that was imprecise, but basically it increases, um, [00:34:53] Speaker 05: the risk for houses of worship that there will be enforcement in their churches of their congregants. [00:34:58] Speaker 05: And to me, that seems a lot like Susan B. Anthony in terms of the more precise targeting of these groups. [00:35:05] Speaker 05: and also there was a prior enforcement of one of the plaintiffs. [00:35:09] Speaker 01: So two responses to that on the legal point, the Susan B. Anthony test, it's in their briefs and requires them to engage in violative conduct is kind of the common language. [00:35:24] Speaker 05: It's not exactly on all fours, but it's basically the imminence of enforcement. [00:35:28] Speaker 05: of the conduct, whatever the conduct is. [00:35:30] Speaker 05: In that case, it was violative conduct. [00:35:32] Speaker 01: In this case, it's... But that is the doctrine. [00:35:35] Speaker 01: And they cannot commit violative conduct because the Huffman Memorandum does not require or prohibit them from doing anything. [00:35:43] Speaker 01: If we want to step back and maybe look at it maybe more from a broader doctrinal angle, it's a difference between being the direct object of the regulation. [00:35:52] Speaker 01: So being told you can or cannot do something, being directly regulated, in which case traceability. [00:35:57] Speaker 05: So they are the direct object of the regulation. [00:35:59] Speaker 05: It's just not being told that you can or can't do something. [00:36:03] Speaker 05: It's not exactly in all fours, but it is a policy that targets enforcement in sensitive locations, churches being one of them. [00:36:11] Speaker 05: So in that sense, it's not like, you know, Laird v. Tatum. [00:36:14] Speaker 05: So it is different. [00:36:15] Speaker 01: Well, I would disagree because cases where the question is, is the government going to exercise its enforcement discretion in a certain way, fall within the ambit of clapper. [00:36:28] Speaker 01: And in fact, plaintiffs don't dispute this characterization of their, at least their attendance declines because they say this is conditional on the actions of third parties, not before the court. [00:36:37] Speaker 01: So that is well outside the Susan B. Anthony case where there's no question about, is the harm going to stem from a third party? [00:36:46] Speaker 01: The harm in those cases is a direct regulation of an entity or a person or a business that wants to engage in the violate of conduct. [00:36:55] Speaker 01: So from a doctrinal answer, those cases simply have no application here. [00:36:59] Speaker 01: From a factual answer, I would push back a little and say, [00:37:02] Speaker 01: The guidance memorandum, again, from a factual matter, it goes broader than just churches. [00:37:09] Speaker 01: It's just a rescission of a sensitive location policy that applied to numerous different entities. [00:37:16] Speaker 01: And on the factual record, I don't think you can say ICE is targeting or DHS is targeting churches when we have in the court plaintiffs who represent 38 plus thousand churches. [00:37:28] Speaker 05: But as Judge Wilkins said, this is a policy that [00:37:32] Speaker 05: enables ICE and CPB to enforce at churches more than they did before. [00:37:38] Speaker 05: That's the whole purpose of this. [00:37:40] Speaker 01: And so the policy or the law at issue in Clapper authorized the federal government to intercept communications. [00:37:47] Speaker 01: The example that- Much more specific to enforcing in churches. [00:37:53] Speaker 05: And there were public statements. [00:37:55] Speaker 05: It was publicized and there were statements we're going to be able to enforce more now that we can go to churches. [00:37:59] Speaker 01: So as a factual matter, though, whatever those statements, you can even take those statements and read them for everything plaintiff says they're worth. [00:38:07] Speaker 01: The fact of the matter is there hasn't been enforcement. [00:38:09] Speaker 01: There wasn't enforcement in a month. [00:38:12] Speaker 06: Go ahead. [00:38:13] Speaker 06: Why does the government not just carve out churches? [00:38:15] Speaker 06: Because of the unique First Amendment interests. [00:38:17] Speaker 06: I mean, the policy was about sensitive locations, including churches. [00:38:22] Speaker 01: Yes. [00:38:22] Speaker 06: So churches, synagogues, places of worship. [00:38:26] Speaker 06: It's different constitutional and legal concerns. [00:38:28] Speaker 01: I guess I missed the first part of your question. [00:38:31] Speaker 06: I'm sorry. [00:38:31] Speaker 06: Just explicitly. [00:38:32] Speaker 06: If the government's policy is to not enforce in these places, which seems to be what you keep saying over and over that we're not doing this, we don't plan to do this. [00:38:45] Speaker 01: Well, I do not know what the plans are for the Department of Homeland Security. [00:38:50] Speaker 01: We have a record that shows that an enforcement action is not imminent. [00:38:54] Speaker 06: That is relying on the fact that there is not in fact. [00:38:57] Speaker 06: such enforcement. [00:38:59] Speaker 01: They do not provide it in the record. [00:39:01] Speaker 01: Again, they say they have 38,000 churches. [00:39:04] Speaker 01: They say a ton of these churches are ripe for enforcement actions. [00:39:08] Speaker 01: They have provided one example for one plaintiff. [00:39:12] Speaker 01: For a certain plaintiff, if we want to talk about attendance declines, they don't even allege that there have been attendance declines on this record. [00:39:18] Speaker 06: This goes back to Judge Wilkins' point, which is the policy is to increase enforcement at these locations, including [00:39:24] Speaker 06: places of worship. [00:39:26] Speaker 06: And yet also there's this defense of this, which is that we're just not doing this or the record doesn't show that the government is doing this type of enforcement. [00:39:35] Speaker 01: The record doesn't establish that enforcement is imminent at any one of plaintiff's churches. [00:39:39] Speaker 01: And that's a legal standard for establishing kind of an imminent injury, non-speculative injury for future enforcement. [00:39:46] Speaker 01: That was their burden to show. [00:39:47] Speaker 01: And again, they set themselves up to say, well, this is obviously something that's going to happen. [00:39:52] Speaker 01: That's why they rely, I think, a lot on these common sense kind of inferences. [00:39:56] Speaker 05: Are you suggesting that for a house of worship to have standing, they would have to have [00:40:00] Speaker 05: specific evidence that that specific House of Worship is going to be targeted. [00:40:05] Speaker 01: That is consistent with how the court treated these types of cases in Clapper. [00:40:09] Speaker 05: How would any House of Worship be able to make that standard? [00:40:13] Speaker 05: They'd have to have inside knowledge about what ICE and CPB are planning to do today. [00:40:18] Speaker 01: Well, given the fact-sensitive nature of standing, I'll answer that. [00:40:22] Speaker 01: I just want to caveat by saying standing is very fact-sensitive. [00:40:25] Speaker 01: So what would make it stronger? [00:40:28] Speaker 01: I'm not saying it will establish standing, because it's very kind of totality of the circumstances. [00:40:33] Speaker 01: But things that would make it stronger is if, for example, a DHS official appeared at a church one day to arrest someone, that person wasn't there, and they told the pastor, I'm going to come back until this guy shows up. [00:40:44] Speaker 01: I think that would make their case a lot stronger. [00:40:47] Speaker 01: But that's also very church specific. [00:40:49] Speaker 01: They don't have that example. [00:40:50] Speaker 05: They simply, I mean, I think the only thing that they have to have something like that in order to have standing. [00:40:56] Speaker 05: I think that kind of very specific knowledge that their house of worship is about. [00:41:00] Speaker 05: Well, I think that would be consistent with how the court approached. [00:41:03] Speaker 05: So yes, that's what you think is the requirement. [00:41:08] Speaker 01: Again, I don't want to commit to saying they need like a particular magic word or a particular fact, but if you look at how the court approached it... But then back to Judge Wilkins' question, what do they need? [00:41:17] Speaker 05: If they don't need that... [00:41:19] Speaker 05: What do they need? [00:41:20] Speaker 01: Well, I think in Murphy v. Missouri, for example, they had the plaintiffs came in and they had evidence that they said the White House did not like certain types of speech on social media and was pressuring the social media companies. [00:41:33] Speaker 01: That wasn't enough to establish standing in that context. [00:41:36] Speaker 01: Right. [00:41:36] Speaker 01: You clapper that they do need. [00:41:39] Speaker 05: What do they need? [00:41:39] Speaker 01: I think I've given them, they need something that specific, I think. [00:41:43] Speaker 05: It has to be. [00:41:45] Speaker 05: An ICE officer came to the church, couldn't find who they were looking for, and said, we're coming back. [00:41:51] Speaker 01: Again, it's a totality of circumstances. [00:41:53] Speaker 01: I'm not going to say they need specifically that. [00:41:55] Speaker 01: There could be other facts. [00:41:56] Speaker 05: Something like that. [00:41:57] Speaker 01: But something like that. [00:41:58] Speaker 02: And they don't have... Let's suppose the director says, [00:42:03] Speaker 02: We're rescinding this policy because we intend to go after immigrants wherever we may find them that are here illegally, including at churches. [00:42:17] Speaker 02: And then, you know, they issue that policy. [00:42:23] Speaker 01: Do they have standing then? [00:42:24] Speaker 01: No judgments. [00:42:26] Speaker 01: They would still need to show that they are being targeted. [00:42:29] Speaker 01: It's like that statement. [00:42:30] Speaker 02: The head of the agency could say we intend to enforce at churches and we still wouldn't meet the standard. [00:42:40] Speaker 01: I think not for these particular plaintiffs, because standing is plaintiff-specific. [00:42:45] Speaker 01: So they need to show that they are going to be imminently targeted by an ICE operation. [00:42:50] Speaker 02: The director's got to say, I'm going to enforce, we're going to enforce that, you know, ABC church or ABC denomination, and then perhaps then ABC church or ABC denomination would have standing. [00:43:04] Speaker 01: I certainly think that's a much stronger case, and we certainly don't have that here. [00:43:07] Speaker 02: But you won't even concede that gives some state. [00:43:10] Speaker 01: Again, I don't know the, you know, given that standing is not mechanically applied, I'm always a little cautious to say, well, certain magic words, certain statements. [00:43:19] Speaker 01: I do think that's a much more difficult case. [00:43:21] Speaker 01: And I'll point out they're not really the opposing council came up here. [00:43:26] Speaker 05: What if they said we're targeting churches of who have congregations of 500 or more mega churches? [00:43:36] Speaker 05: What a mega church of standing. [00:43:39] Speaker 01: I still think in that context, the mega church, because there's so many mega churches, even if I says as a no, as I think no, because at that level of generality, it is still best targeting churches that are painted white. [00:43:54] Speaker 05: Again, so you would have to have the specific church to stick. [00:43:58] Speaker 01: Well, I think if they if they said tomorrow we are going to raid all of these churches that are tomorrow, we're we're waiting mega churches, mega churches don't have standing. [00:44:09] Speaker 05: You have to be the specific megachurch. [00:44:12] Speaker 01: I don't want to commit, but I do think that's a much harder case. [00:44:19] Speaker 01: And again, we don't have that. [00:44:20] Speaker 02: I mean, it seems like under your view, even if they said that with Japan's hypothetical, we're going to raid megachurches tomorrow, and one gets raided, [00:44:35] Speaker 02: It seems like your position would be that if they came to court to challenge the policy, you would say they don't have standing because they got rated once, but they can't prove that they're going to get rated again. [00:44:49] Speaker 01: Well, I think that's what the Supreme Court indicated in cases like Lyons, where the person was subject to an unconstitutional seizure and the court said, well, he can't show it's going to happen again. [00:45:01] Speaker 01: They get passed. [00:45:02] Speaker 02: So nobody has standing, it sounds like. [00:45:05] Speaker 01: Well, in that context, they wouldn't have standing for injunctive relief. [00:45:10] Speaker 01: The Ninth Circuit case that plaintiffs cite, I think that one's Presbyterian Church. [00:45:16] Speaker 01: I mix up Presbyterian Church and United Presbyterian Church from this court. [00:45:20] Speaker 01: But in that case, the court said that they add standing for at least a nominal damages action. [00:45:26] Speaker 01: They are seeking an injunction. [00:45:27] Speaker 01: So the extent to which past enforcement actions are relevant, and the Supreme Court was very clear about this, super clear in Murphy, is there predictive effects for future enforcement actions. [00:45:40] Speaker 01: So in the megachurch example, if that happened and the ICE director said we're only going to hit megachurches once, we're not doing it in the future, [00:45:47] Speaker 01: that mega church certainly wouldn't have standing to seek preliminary injunctive relief on a prospective basis. [00:45:53] Speaker 01: And so on this record, they kind of doubly fail because they don't show an imminent targeting of any of their churches. [00:46:02] Speaker 01: And the past enforcement actions that they put into the record involve one kind of raid on a church [00:46:08] Speaker 01: And then for surveillance actions, just kind of giving them everything that I think they claim to be, everything that they want to be an enforcement action on this record. [00:46:18] Speaker 01: So we have like in total five, over 38,000 churches. [00:46:26] Speaker 01: This is, you know, looking at Murphy, that's very weak evidence. [00:46:29] Speaker 02: I don't think there's any requirement in the case law that if you have an organization and you have a thousand members of your organization that if you decide to only get, you know, declarations from five of your members, [00:46:46] Speaker 02: that what the court should presume is that there's no evidence from the other 95% of the members. [00:46:57] Speaker 02: I mean, the plaintiffs in an organizational standing case don't have to pull all of their members and then present those findings to the court when they present standing, but that's what you're attempting to twist this around into. [00:47:14] Speaker 01: Well, I disagree that that's what I'm trying to do here. [00:47:18] Speaker 01: So maybe an example, Murphy v. Missouri, the plaintiffs came to court and one of the plaintiffs had, according to the court, at least one example of a past instance of censorship. [00:47:30] Speaker 01: that could be traced to the government defendants in that case. [00:47:35] Speaker 01: What the court said is that plaintiff still needs to show that enforcement is going to be imminent, that censorship is imminent and will occur in the future. [00:47:46] Speaker 01: I'm not saying that they need to provide a declaration from every church. [00:47:51] Speaker 01: What I am saying is that whatever this evidence in it is incredibly weak. [00:47:55] Speaker 01: Because if we look at the past enforcement actions, [00:47:58] Speaker 01: We only have five examples at most. [00:48:01] Speaker 01: I would argue the rate is probably more probative. [00:48:04] Speaker 01: Of the surveillance examples, one is clearly speculative. [00:48:07] Speaker 01: The line in the declaration is we think it's ice in an idling truck outside our church. [00:48:12] Speaker 01: But at best, they have five examples on this record. [00:48:15] Speaker 01: Over 38,000 churches that they say are ripe targets for enforcement actions. [00:48:20] Speaker 01: in an administration that is aggressively enforcing it. [00:48:24] Speaker 01: Given that posture, I think the five examples provide weak evidence going forward. [00:48:29] Speaker 01: That's the language from Murphy. [00:48:31] Speaker 01: And they certainly do not give rise to an inference that this administration is targeting churches in such a way that this court can conclude any particular church that plaintiffs represent is at risk of an imminent ICE raid. [00:48:45] Speaker 01: And I think that's kind of the upshot of the of Judge Friedrich's analysis. [00:48:49] Speaker 05: When are you defending the application of this targeting standard from Ord in this context? [00:48:55] Speaker 05: Because it seems that that is it seems that the district court applied a case that we have applied in the context of Second Amendment cases, criminal prosecutions. [00:49:04] Speaker 05: And we explicitly said this doesn't apply to constitutional things, agency actions. [00:49:10] Speaker 05: Are you defending her that Ord standard in this context? [00:49:14] Speaker 01: I am defending the ORD standard insofar as it is consistent with how Clapper directs courts to review. [00:49:21] Speaker 05: So are you saying that ORD is the proper standard to be applied in this context? [00:49:25] Speaker 01: I think from a very... Is it yes or no question? [00:49:28] Speaker 01: Well, I think from a tight doctrinal standpoint, Clapper is. [00:49:31] Speaker 01: I think ORD is appropriate. [00:49:33] Speaker 05: I'm asking if you're defending the district court's citation and reliance on ORD. [00:49:39] Speaker 01: Yes, because I think it's consistent with clap and you think or to order is the correct standard. [00:49:43] Speaker 01: I think clapper is a correct standard in order to get a yes or no answer out of you because I recognize that the or does have a simple question. [00:49:53] Speaker 05: The district court had an analysis that relied on or I'm asking you, are you defending that? [00:49:57] Speaker 05: Do you think that's the correct standard? [00:49:59] Speaker 05: Yes or no. [00:50:00] Speaker 01: It's a correct standard because it represents clapper in this context. [00:50:04] Speaker 05: Do you think ORD is the correct standard, despite what we've said about ORD? [00:50:08] Speaker 01: Because the issue that this court has flagged with ORD, that these are criminal laws that are directly regulating people, is not implicated by this case. [00:50:16] Speaker 01: The problem, the tension that plaintiffs flag between ORD and this court's first amendment, reinforcement, Susan B. Anthony type of cases, is that [00:50:28] Speaker 01: Or does seem to be a direct criminal regulation, but that's not implicated here. [00:50:33] Speaker 01: This case is not a direct regulation. [00:50:35] Speaker 04: So why don't you just agree that or does not the correct standard. [00:50:37] Speaker 04: That clever is, but why can't you just say that? [00:50:41] Speaker 01: Well, because again, I think to the or does applicable in this case, because it's sites, the right standard for non direct enforcement. [00:50:47] Speaker 05: You just noted the reasons why it's not. [00:50:50] Speaker 01: I noted the reasons why it does not have no relevance to this case because, again, they're not being directly regulated. [00:50:57] Speaker 01: So they are not committing, they cannot commit the violate of conduct because there is no violate of conduct to commit. [00:51:03] Speaker 01: The cases that plaintiffs cite that they say are in tension with or are inconsistent with how pre-enforcement challenges are done in the First Amendment context do not have any application here. [00:51:13] Speaker 01: This case is like the First Amendment challenge in cases like Clapper, Murphy, United Presbyterian Church, which do not say that there's some lesser standard to establish kind of a free enforcement challenge. [00:51:26] Speaker 01: What they require is an imminent targeting of the plaintiff. [00:51:29] Speaker 01: And it's showing, a very strong factual showing, that the threat in action is imminent. [00:51:36] Speaker 01: And to the extent that Ward uses that standard, perhaps maybe in the wrong context, on the facts of Ward, it is used correctly in the context of this case. [00:51:46] Speaker 01: And that's the position we're taking. [00:51:49] Speaker 02: All right. [00:51:51] Speaker 02: All right. [00:51:52] Speaker 02: If you want to take 30 seconds or so to wrap up. [00:51:57] Speaker 01: Just real quick on the so two quick things. [00:52:02] Speaker 01: We talked a lot about imminence. [00:52:03] Speaker 01: I think the fact that plaintiffs do not think that's their strongest statement or strongest theory of standing is indicative of the weakness of that position, especially on this record. [00:52:14] Speaker 01: As to the question of attendance declines and traceability, again, I think the fact that there's not an imminent risk of enforcement, it suggests that the district court was correct, that there's some other explanation for why individuals are not going to church. [00:52:31] Speaker 01: And that's a broader kind of, I think, aggressive enforcement posture of this administration. [00:52:35] Speaker 01: In fact, plaintiffs actually concede because they spend a lot of time trying to argue or parse out [00:52:40] Speaker 01: why their claim is an additional cause as opposed to that not being kind of the broader cause. [00:52:48] Speaker 01: Again, it's their burden, though, to establish that it is the rescission of the Mayorkas memo that is causing the declines in worship. [00:52:56] Speaker 01: I think as Judge Friedrich kind of ably explained, that's just simply not borne up by this record. [00:53:01] Speaker 01: And if you look at the pages, if you look at the declarations they cite, they've cited [00:53:05] Speaker 01: I think pages out of their appellate's brief and the reply brief, which references declarations they filed, a lot of them, they're not very clear. [00:53:14] Speaker 01: They do not expressly say that the people are not going to church because of the rescission of the memo. [00:53:24] Speaker 01: I think it's very telling. [00:53:25] Speaker 01: A lot of the statements, if you look around the declaration, say since the rescission memo, [00:53:31] Speaker 01: uh, people have not been going to church and there's been attendance declines. [00:53:34] Speaker 01: Well, the precision memo as a district court noted was issued contemporaneously with this more aggressive enforcement posture. [00:53:42] Speaker 01: Is there no further questions? [00:53:44] Speaker 01: Thank you. [00:53:47] Speaker 02: Um, this poor friend, I think you were out of time. [00:53:51] Speaker 02: Give you three minutes on your phone. [00:53:53] Speaker 00: Thank you. [00:53:54] Speaker 00: So I'll start by saying we think the imminent threat harm is very strong as well. [00:53:59] Speaker 00: I was asked to pick and answer attendance declines because it's an objective present harm. [00:54:04] Speaker 00: On imminent threat, a number of things to say, but one thing my co-counsel has pointed out is that Judge Rao when I was answering your questions about the broader injunction, [00:54:11] Speaker 00: I meant in the context of the attendance declines. [00:54:14] Speaker 00: Those, I think, are attributable to the rescission of the policy. [00:54:17] Speaker 00: I didn't mean to abandon the broader injunction with respect to the imminent threat. [00:54:23] Speaker 00: Certainly, we have standing with respect to the imminent threat injuries. [00:54:27] Speaker 06: You are not seeking the broader injunction in this preliminary posture, is what I heard you say. [00:54:32] Speaker 00: We aren't, all we are seeking from this court is a ruling that we are standing to seek the preliminary injunction from the district court. [00:54:40] Speaker 06: A preliminary injunction about the memo. [00:54:44] Speaker 00: Yes, with our judicial relief being either the restoration of the memo or the broader memo, or sorry, the broader relief that we sought. [00:54:55] Speaker 00: So I was answering it. [00:54:56] Speaker 06: When you were previously at the podium, you suggested that for the purposes of preliminary relief, you're only relying on seeking an injunction about the memo. [00:55:06] Speaker 06: We have we have requested I know you had requested yes, but when you when you stood up, you said that you are not relying on the broader relief. [00:55:16] Speaker 00: I mentioned the context of the attendance declines and my co-counsel tell me I was not careful about that. [00:55:20] Speaker 00: So I apologize people were asking for this court from this court is just a ruling that we have standing to pursue. [00:55:26] Speaker 00: to our our preliminary injunctive relief which includes both. [00:55:30] Speaker 00: I think what I meant to recognize was that because the status quo is the restoration of the memo, I think that the district court naturally was focused on that but certainly our imminent threat future injury would provide standing for either one of those sorts of of injunctive relief and then to to move to the [00:55:48] Speaker 00: To move to the imminent threat injury, in Clapper and United Presbyterian, the plaintiffs were challenging broad surveillance policies. [00:55:59] Speaker 00: There was no evidence that the plaintiffs would be targeted or had even been contemplated. [00:56:05] Speaker 00: And in Clapper, I think there were at least five steps that had to happen before the plaintiffs would be injured, including the government deciding to rely on that particular statute instead of others. [00:56:15] Speaker 00: approval before the surveillance would have happened. [00:56:17] Speaker 00: That's very different than what we have here. [00:56:19] Speaker 00: And I'll just quickly identify the four categories of evidence that we have that show imminent threat. [00:56:26] Speaker 00: First, defendants do not dispute that ICE and CBP are under a mandate to find and deport every removable person in this country. [00:56:34] Speaker 00: We didn't talk about that mass deportation mandate in our declarations by accident is an important part of this story. [00:56:41] Speaker 00: The declarations established that all 27 plaintiffs regularly host removable immigrants in their places of worship. [00:56:48] Speaker 00: So you pair those pieces of evidence. [00:56:50] Speaker 00: And the only question is where the defendants are ultimately going to be able to find the plaintiff's removable congregants. [00:56:59] Speaker 00: not an if, it's a when and where. [00:57:01] Speaker 00: And third, by DHS's own account in their public communications, the purpose and effect of rescinding the policy was to empower ICE and CBP to fulfill the deportation mandate by engaging in enforcement activity at places of worship, which they could not do under the prior policy. [00:57:19] Speaker 00: And fourth, [00:57:20] Speaker 00: Defendants are, in fact, now conducting immigration enforcement operations at plaintiffs' places of worship and others. [00:57:27] Speaker 00: There were six incidents just in the first month following the change of policy. [00:57:30] Speaker 00: So if you put all of those together, that amounts to a substantial risk under, sorry. [00:57:35] Speaker 05: It seems to me, too, that this is different from Tapper in that this policy targets sensitive locations, including defiance. [00:57:43] Speaker 05: I mean, it's much more specific. [00:57:45] Speaker 05: And that's why, to my mind, it seems more like Susan B. Anthony. [00:57:51] Speaker 05: which theories are stronger or not stronger. [00:57:55] Speaker 05: It seems to me that the pocketbook injury, you didn't have declarations for all of your clients to have these pocketbook injuries, but it just seems to me. [00:58:08] Speaker 05: And correct me if I'm wrong, it just seemed to me that that's a direct harm to your clients. [00:58:13] Speaker 05: It doesn't rely on what third parties are going to do, such as congregants. [00:58:17] Speaker 05: And it doesn't rely on third party rights. [00:58:19] Speaker 05: And a pocketbook harm is something that's very familiar and accessible to everyone. [00:58:24] Speaker 05: And if it's imminence of enforcement and a pocketbook harm, which just seemed like almost all of your, but I'm sure you could probably supplement on a remand to make sure everybody [00:58:34] Speaker 05: fled them if they didn't do so fully. [00:58:38] Speaker 05: It just seemed to me that that could potentially be a cleaner way because it doesn't harrass so much with everybody's attendance and it goes with imminence, although it's just one step more than, I guess, associational harm based on imminence. [00:58:53] Speaker 05: But it doesn't rely on third parties. [00:58:55] Speaker 00: So to start where your honor started, I think you were exactly right when you said earlier that the plaintiffs are the directly regulated party here. [00:59:04] Speaker 00: And the reason this is a third party conduct case is because it's how third parties are responding to the regulation of our plaintiffs. [00:59:12] Speaker 00: And that, I think, is quite different. [00:59:14] Speaker 00: It actually makes our case easier than Department of Commerce or Diamond Alternative. [00:59:19] Speaker 00: Lujan, the court said, when you are the regulated party, we essentially assume that you have [00:59:24] Speaker 00: uh standing um and so to go to the the pocketbook injuries, there's there kind of two um there's the security costs um but they're almost inextricably intertwined with the conscience injury here which is that we have uh pastors and rabbis on the ground who are trying to figure out [00:59:42] Speaker 00: in the exercise of their pastoral duties, how they're going to protect their their places of worship. [00:59:48] Speaker 00: Um and so, they are exerting uh costs to putting cameras and to put signs on uh the doors. [00:59:54] Speaker 00: Um I think what the district court said was, well, those are self-inflicted harms under clapper because that depends so that they rise and fall together. [01:00:02] Speaker 00: I will say, I think that the Catholic bishops brief um makes a very persuasive [01:00:09] Speaker 00: uh, injury test does not apply to conscience injuries. [01:00:12] Speaker 00: And I'm not aware of any precedent that would apply to, uh, that test because there is something kind of problematic about judicial second guessing of the decisions that pastors and rabbis are making in the exercise of their pastoral duties. [01:00:26] Speaker 00: Um, so I, I think that's just an open area of law and I can't point you in any case law one way or the other on that. [01:00:32] Speaker 05: Um, and if you could clever, I just was a little confused about your colloquy with Judge Rao, just like enlighten me. [01:00:37] Speaker 05: I just don't understand what is, [01:00:39] Speaker 05: the difference in standing. [01:00:40] Speaker 05: How does it affect the standing analysis? [01:00:46] Speaker 05: What the scope of the injunction? [01:00:49] Speaker 00: So it doesn't affect the standing analysis for the imminent threat. [01:00:53] Speaker 00: It potentially affects the standing analysis for the attendance declines, because as we say, the attendance declines were in response to the rescission of the sensitive locations policy. [01:01:03] Speaker 00: And that's why when Judge Rao asked me about it, I backed away, because I didn't want to get stuck trying to defend the traceability of the [01:01:12] Speaker 00: uh the attendance declines to kind of the absence of that broader injunction. [01:01:16] Speaker 00: Um so, I think it potentially matters there. [01:01:18] Speaker 00: I don't think this court needs to go that far because uh you can say the attendance declines are redressable and traceable uh to the precision of the policy and at minimum give us standing for that but [01:01:30] Speaker 00: in the imminent threat context, we would have standing for either one of them. [01:01:33] Speaker 06: And then if I could just end, my friend said that he did not know- There's a real mumbling here of the claims, which are First Amendment RFRA APA claims, the injuries and how those injuries match up [01:01:47] Speaker 06: with the claims and then how all of that matches up with the two different injunctions. [01:01:53] Speaker 06: I wish the briefing and the district court opinion were a bit clearer on how all of this fits together. [01:01:59] Speaker 00: Yes, I think it is complicated and then later on that we have 27 plaintiffs and we've put a lot before you. [01:02:05] Speaker 00: I just wanted to end. [01:02:07] Speaker 00: My friend said that he did not know the reason that the rescission happened. [01:02:12] Speaker 00: The DHS acting secretary explained. [01:02:15] Speaker 00: He said that they were rescinding the policy because they wanted to empower the brave men and women in CBP and ICE to enforce our immigration laws and catch criminal aliens who will no longer be able to hide in America's schools and churches to avoid arrest. [01:02:29] Speaker 00: And then he explained that they were sending it because it tied to the hands of our brave law enforcement while the new policy would interest them to use common sense. [01:02:39] Speaker 00: So I think our plaintiffs were reasonable in taking the administration at its word on that. [01:02:45] Speaker 00: So if there are no further questions, we ask that the court hold that the plaintiff's evidence establishes a substantial likelihood of standing under the correct legal tests and remand for further conservation of the plaintiff's request for a preliminary injunction. [01:03:02] Speaker 02: Thank you. [01:03:02] Speaker 02: The matter is submitted.