[00:00:10] Speaker 04: Thank you. [00:00:21] Speaker 02: You may be seated. [00:00:25] Speaker 02: Good afternoon. [00:00:28] Speaker 02: It's a pleasure to be with you here today. [00:00:31] Speaker 02: Thank you for [00:00:33] Speaker 02: coming in from out of town for this hearing. [00:00:35] Speaker 02: As you know, this is the time set for Immigrant Defenders Law Center versus Kristi Noem. [00:00:44] Speaker 02: And so I think if you're ready to proceed, we're ready to proceed. [00:00:49] Speaker 02: Judge Nelson, can you hear us? [00:00:52] Speaker 03: Yes. [00:00:52] Speaker 03: Can you hear me? [00:00:53] Speaker 02: Yes. [00:00:54] Speaker 02: Thank you. [00:01:02] Speaker 00: Good afternoon, Your Honors. [00:01:04] Speaker 00: Sarah Welch for the Federal Defendant Appellants. [00:01:07] Speaker 00: I will try to reserve four minutes for rebuttal. [00:01:10] Speaker 00: May it please the court? [00:01:12] Speaker 00: Last month, the court largely stayed the district court's order entering interim relief against the reimplementation of MPP. [00:01:20] Speaker 00: The court should now reverse the district court's order based on both the arguments presented at the stay stage and our additional arguments presented at this stage. [00:01:28] Speaker 00: One change is that IMDEF now squarely disavows a diversion of resources theory of standing. [00:01:34] Speaker 00: That leaves little to its remaining standing arguments. [00:01:37] Speaker 00: For another, we've presented additional threshold arguments under the related statutory jurisdictional bars in AUSC 1252A5 and B9, which bar IMDEF statutory claims. [00:01:49] Speaker 00: The other additional arguments that we've presented at this stage show that IMDEF is trapped between two separate dilemmas of its own making. [00:01:57] Speaker 00: The first is a dilemma between IMDEF's complaint and its final agency action argument. [00:02:02] Speaker 00: IMDEF challenges MPP's reimplementation as a freestanding separate final agency action. [00:02:09] Speaker 00: We don't think that's a correct argument and we think that their request for relief should fail for that reason. [00:02:14] Speaker 00: But if they are correct on that, that it is a separate agency action, that's a problem for IMDEF because it means that it's not an action that IMDEF challenges in its complaint and it's not something on which IMDEF can receive relief, ultimately a final judgment. [00:02:29] Speaker 00: Courts can't award interim relief on a claim or against an agency action that's not presented in the underlying complaint. [00:02:36] Speaker 00: The second dilemma that is now crystallized is between IMDEF's statutory arguments and its ripeness arguments. [00:02:42] Speaker 00: IMDEF's statutory arguments invoke and purport to depend on the effects of re-implementing MPP. [00:02:48] Speaker 00: But we have yet to see any effects of re-implementing MPP on the ground now. [00:02:53] Speaker 00: So either IMDEF's challenge is not yet sufficiently concrete to be right, [00:02:57] Speaker 00: or its statutory argument is ultimately that no matter the facts on the ground at any given moment, the contiguous territory return authority, when exercised with respect to Mexico, is always unlawful. [00:03:08] Speaker 04: So the INA is inherently... Council, can I start you off on the rightness issue? [00:03:12] Speaker 04: It seems as if the government is trying to have it both ways. [00:03:16] Speaker 04: On the one hand, the re-implementation is predicated on the notion that circumstances at the border changed, making it suitable to be able to re-implement. [00:03:27] Speaker 04: But we have yet to hear what those circumstances are. [00:03:30] Speaker 04: Maybe you might clarify that in your argument today. [00:03:33] Speaker 04: But then on the other hand, you fault MDEF for not raising something that's particularly happening at the moment, something concrete that would make it [00:03:45] Speaker 04: that would warrant our review of these claims right now. [00:03:49] Speaker 04: So how can it help me clarify that point? [00:03:53] Speaker 00: Sure. [00:03:53] Speaker 00: So I don't have anything additional to offer in elaboration of the January 21st press release announcing DHS's view that conditions at the border had become suitable for re-implementation of MPP. [00:04:05] Speaker 00: We haven't had additional factual development on that, so there's nothing else in the record that I can point the court to on that point. [00:04:10] Speaker 02: And just real quick, is there any reason for delay in what I would assume the re-implementation would look like? [00:04:19] Speaker 00: If I'm understanding the question, the agency understands itself to be free now to reimplement MPP on the ground in light of the court's order last month with respect to everyone except in-depth current and future clients. [00:04:32] Speaker 00: So that's the agency's understanding is that it's free to do that as of a month ago. [00:04:37] Speaker 00: Is that responsive to your question? [00:04:38] Speaker 02: I'm sorry and maybe I didn't ask it. [00:04:42] Speaker 02: Is there anybody been enrolled in the MPP policy? [00:04:46] Speaker 00: I don't have additional facts to offer on that point either. [00:04:49] Speaker 00: I'm not aware. [00:04:51] Speaker 02: When you say you have no additional facts, I think when we asked you last month, remind me, was the answer no or you didn't know? [00:05:04] Speaker 00: Prior to the district court's stay order, which was the four months during which between the January 21st press release and the district court's stay order, the representation that we had made, which is my understanding of the facts, is that MPP had been used on a limited basis. [00:05:21] Speaker 00: So there was a low but non-zero number of individuals who had been enrolled in MPP prior to the stay. [00:05:26] Speaker 02: And you didn't know what that number was. [00:05:27] Speaker 00: I did not know what that number was. [00:05:28] Speaker 02: So we don't know what low means. [00:05:30] Speaker 00: Correct. [00:05:31] Speaker 00: Low enough that in-depth has not encountered anyone who has been enrolled in MPP, at least. [00:05:36] Speaker 02: Thank you. [00:05:37] Speaker 02: Sorry. [00:05:37] Speaker 02: You can go ahead and continue to respond. [00:05:39] Speaker 03: Is there a way to define that? [00:05:42] Speaker 03: I mean, they would know who's been enrolled, right? [00:05:46] Speaker 03: I mean, can you tell us anything about how it's actually being used? [00:05:52] Speaker 03: Even on the low number? [00:05:53] Speaker 03: I mean, what happens? [00:05:54] Speaker 03: They're showing up at the border and they're just turned away? [00:05:57] Speaker 00: They're processed through the ordinary MPP enrollment process. [00:06:01] Speaker 00: So they're screened to ensure that they meet the criteria for MPP and then are given a date for a court appearance and a port of entry at which they should show up for that court appearance. [00:06:13] Speaker 00: So just the normal, ordinary MPP process. [00:06:15] Speaker 00: I apologize, I don't have a specific number to offer. [00:06:18] Speaker 03: Well, the only reason I'm... [00:06:20] Speaker 03: asking more questions is I'm not entirely sure why that's hard to figure out. [00:06:25] Speaker 03: I mean, two things. [00:06:26] Speaker 03: I'm trying to figure out whether only the government would have access to that. [00:06:29] Speaker 03: I take it this is not public knowledge. [00:06:32] Speaker 03: There's nothing about a public notice of a hearing that would suggest, it notices the public that that immigrant would be in the MPP process. [00:06:44] Speaker 00: I assume that's correct. [00:06:45] Speaker 00: I'm not aware of anything that's different about the public calendar for a given hearing that would reflect that. [00:06:52] Speaker 00: If the court needs additional facts, I expect that's something that will be developing before the district court. [00:07:00] Speaker 00: And if the court wanted to order supplemental briefing, I think that would [00:07:04] Speaker 00: would perhaps be the best way to offer. [00:07:06] Speaker 00: Any additional facts that the court finds necessary at this point? [00:07:08] Speaker 00: I would emphasize that showing ripeness, showing that M. Jeff has the right to be in court on this matter is their job. [00:07:17] Speaker 00: So they do need to show the facts indicating that they are suffering a present injury and that there's a concrete. [00:07:23] Speaker 03: Was there any limited jurisdictional discovery? [00:07:26] Speaker 03: Did they ask for any of this documentation or it just came up? [00:07:29] Speaker 03: There was no limited jurisdictional discovery on this. [00:07:32] Speaker 00: Not that I'm aware of, Your Honor. [00:07:33] Speaker 03: One more on that. [00:07:36] Speaker 03: On rightness, is there anything different about your rightness argument versus your cognizable injury argument understanding? [00:07:43] Speaker 03: It seems like those sort of roll in, but I want to know, because you didn't raise it at the motion stage. [00:07:47] Speaker 03: Now you've raised it. [00:07:48] Speaker 03: And I'm trying to figure out if there's anything new that the rightness argument addresses that the cognizable injury hasn't already addressed. [00:07:57] Speaker 00: So there's, of course, quite a bit of overlap between the injury prong of standing and the constitutional [00:08:02] Speaker 00: portions of the ripeness inquiry, but we are additionally making the prudential ripeness arguments that there's just not a sufficiently concrete dispute. [00:08:11] Speaker 00: The facts on the ground aren't sufficiently developed for this dispute to be susceptible to judicial review with respect specifically to the reimplementation action that MDF has chosen to argue is a separate agency action. [00:08:24] Speaker 04: Well, let me press you on that, counsel, because this follows President Trump's executive order indicating reintroduce MPP. [00:08:32] Speaker 04: And from what I understand, between the press release and the executive order, there is no contemplation of a different policy or any new direction to it. [00:08:40] Speaker 04: It's just, we already set this up before in 2019, do it again. [00:08:45] Speaker 04: And MDF has come in with evidence of certain harms that arose. [00:08:51] Speaker 04: as well as I think the district court noted that it can be quickly ramped up. [00:08:58] Speaker 04: Why doesn't that create enough of the eminence to say, well, nothing different about this program is going to happen. [00:09:03] Speaker 04: We know what happened before. [00:09:05] Speaker 04: Why doesn't that make it sufficiently ripe for us to consider these issues now? [00:09:10] Speaker 00: So I think I would point to the fact that the facts that MDF is relying on are its allegations and its complaint filed in December 2021, as well as the October 2021 termination memoranda produced by DHS. [00:09:25] Speaker 00: And all of those facts are four years old. [00:09:28] Speaker 00: And significant things have changed in the interim. [00:09:31] Speaker 00: For example, COVID is no longer a pressing concern. [00:09:35] Speaker 00: The authorities that the government is using at the border are substantially different. [00:09:39] Speaker 00: So one of the features, one of the aspects that was significant to those findings was that there was a large population of individuals at the border who were sort of attempting to cross the border daily. [00:09:49] Speaker 00: And that's related to the policies that were in place at the time. [00:09:53] Speaker 00: The US is now using different [00:09:54] Speaker 00: policies to secure the border. [00:09:56] Speaker 00: COVID is no longer a concern that relates to the sort of health and safety concerns that were prominent in those analyses. [00:10:01] Speaker 00: So there's reason to think that the facts have changed in the last few years. [00:10:05] Speaker 00: You're correct, Your Honor, that the guidance that is being used is not different. [00:10:10] Speaker 00: And the executive order just directed DHS to resume use of MPP when it became appropriate, and DHS found that it had become appropriate. [00:10:19] Speaker 00: So I would push back on the idea that the executive order was creating, was instructing DHS to create any new final agency action. [00:10:27] Speaker 00: And just given that it was instructing DHS to resume MPP and given that the Northern District of Texas's stay of the last administration's attempt to rescind MPP, [00:10:38] Speaker 00: meant that MPP remained the policy of DHS. [00:10:41] Speaker 00: So it didn't need to take any new actions that could be separately cognizable as a final agency action in order to put MPP back into effect in order to start enrolling individuals. [00:10:52] Speaker 04: This might be a good time to switch over to that issue. [00:10:55] Speaker 04: Let me ask you this first. [00:10:56] Speaker 04: What is the status of litigation proceedings in front of the Northern District of Texas? [00:11:00] Speaker 04: Because as I understand it, the stay was issued in December of 2021. [00:11:07] Speaker 04: And at that point, there's been no merits review of the rescission decision itself. [00:11:15] Speaker 04: And so as I read it, that's the final agency action that preceded the executive order here. [00:11:21] Speaker 04: It hasn't been invalidated or anything else. [00:11:26] Speaker 04: It's just been stayed. [00:11:27] Speaker 04: So what's the status of that case? [00:11:29] Speaker 00: So I'll try to spend a brief moment walking through that case's complicated procedural history. [00:11:36] Speaker 00: So the 2021 district court decision was a preliminary injunction followed by a vacater of the June 2021 termination memo. [00:11:45] Speaker 00: That was the case that went up to the Supreme Court and was reversed. [00:11:48] Speaker 00: In 2022 it came down and reviewed, the district court reviewed the October 2021 rescission memo, which superseded and withdrew the June rescission memo. [00:11:59] Speaker 00: So the October rescission memo is the only one that's still in effect and operative or would be absent the 2022 stay. [00:12:06] Speaker 00: The government then appealed that stay and dismissed its appeal, meaning that the 705 stay remains in effect. [00:12:11] Speaker 00: So the current status of the litigation is that dispositive motions have been briefed and were ripe for a decision as of January when both parties moved to stay the case while DHS reconsidered its position with respect to the October 2021 memoranda rescinding MPP. [00:12:28] Speaker 00: And the most recent action is that [00:12:31] Speaker 00: Believe at the beginning of this month and last month the parties filed a status update Asking the court to continue to stay in effect. [00:12:38] Speaker 00: I believe through the end of September While the parties continue to discuss the resolution of the case, okay? [00:12:47] Speaker 02: And is it correct that Judge Bernal was planning to move forward with discovery Which could include this [00:12:58] Speaker 02: materials relevant for jurisdictional questions. [00:13:01] Speaker 02: Is that a possibility of my review of the district court docket? [00:13:09] Speaker 00: Yes, Your Honor. [00:13:09] Speaker 00: Discovery is set to end in November in the district court here with dispositive motions due in December. [00:13:19] Speaker 02: I didn't know if that was stayed while we were doing this. [00:13:22] Speaker 02: It's not, Your Honor. [00:13:25] Speaker 02: Okay. [00:13:26] Speaker 02: I'd like to ask you some questions. [00:13:30] Speaker 02: on the MPP and the contiguous territory return provisions of the INA, would you agree that they are an alternative to detaining non-citizens inside the United States? [00:13:51] Speaker 00: I would agree with that, Your Honor, yes. [00:13:53] Speaker 02: And I take it you would also agree that the fact that non-citizens must be enrolled [00:14:00] Speaker 02: in MPP implies that the government exercises some degree of control and oversight over this program? [00:14:10] Speaker 02: Would you agree with that? [00:14:11] Speaker 00: Certainly over the program, Your Honor, yes. [00:14:13] Speaker 00: Individuals have to be screened to ensure that they are eligible for MPP, for example, particularly vulnerable aliens, those with a credible fear of torture in Mexico are not eligible to be enrolled in MPP. [00:14:25] Speaker 02: And so would you also agree that the asylum seekers' rights under the INA do not go away once they are sent back to Mexico after being enrolled in the MPP? [00:14:39] Speaker 00: Certainly, Your Honor. [00:14:40] Speaker 00: Individuals still have the right to apply for asylum and maintain an asylum application. [00:14:43] Speaker 02: So the reasons I ask those questions, and if that is the case, why shouldn't cases from this circuit involving the INA's right [00:14:55] Speaker 02: to counsel, such as Orantes, inform our assessment in this case? [00:15:02] Speaker 00: I think they are relevant to the court's assessment in that, in those cases, the government is controlling the conditions of detention. [00:15:10] Speaker 00: The government decides on what circumstances, under what conditions, individuals who are detained can speak to their attorneys. [00:15:18] Speaker 00: It decides the visiting hours, it decides when they go to their hearings. [00:15:23] Speaker 00: And that sets up a contrast. [00:15:24] Speaker 00: The way that it's relevant is as a contrast to the individual's freedom of movement in MPP. [00:15:29] Speaker 00: So when they're enrolled in MPP, they're given a hearing date and instructed which port of entry to appear at and at what time. [00:15:37] Speaker 00: They're then free to be in Mexico, to speak to anyone they want to about anything at any time up until they arrive at the port of entry. [00:15:46] Speaker 00: And at that point, they are returned to DHS custody. [00:15:49] Speaker 00: and transported to their hearing and returned back to Mexico when the hearing is complete. [00:15:54] Speaker 00: So I think those cases are relevant as a contrast because what's driving the detention cases is that the government is in control of who those people talk to and when. [00:16:03] Speaker 02: And so you agree that the government still must ensure their right to apply for asylum with the ability to have counsel of their choice being safeguarded. [00:16:16] Speaker 00: We think all three statutes work together, and the way that they work together is that the government is allowed to return individuals to Mexico even if that imposes incidental effects on their other applications, even if someone may choose to not maintain their asylum application because they're waiting in Mexico rather than in the United States, and even if it's more difficult to talk to your attorney when you're not physically present in the United States. [00:16:42] Speaker 00: We think that's the way to give all three statutes effect. [00:16:45] Speaker 00: And the way not to give them all three effect, not to read them together, is to say that conditions in Mexico, whenever they create incidental effects, [00:16:57] Speaker 00: on other rights. [00:16:59] Speaker 04: What if the effects are not incidental? [00:17:03] Speaker 04: What if you have a program that hypothetically someone is in a contiguous territory but they're not able to actually attend their hearings, for example, or bring witnesses, or access counsel at any time. [00:17:20] Speaker 04: You would agree that because those are other statutory rights that are also in the INA, that even if the government is not controlling the conditions in Mexico, that would be a problem. [00:17:34] Speaker 04: Wouldn't that be in violation of the INA as well? [00:17:36] Speaker 00: So we think those individuals would have the ability to raise those claims. [00:17:41] Speaker 00: in their removal proceedings, including in a motion to reopen if needed. [00:17:47] Speaker 04: I'm starting just with the basic threshold point of statutory obligations. [00:17:53] Speaker 04: Because I think your point in distinguishing some of these cases was that because the government was controlling the detention center, but it seems to me that the obligation extends further than that if the government chooses to set up a contiguous territory program. [00:18:07] Speaker 04: And I'm asking if you agree with that. [00:18:08] Speaker 00: So I think our argument is consistent with the idea that in an extreme case where there were unusual conditions in the territory to which individuals were being returned that made them unable to exercise those rights, that that would be a different circumstance. [00:18:23] Speaker 00: What we think can't be the case, can't be the right way to read all three statutes, is for ordinary conditions in Mexico, or even conditions in Mexico that are present on many occasions, to take the contiguous territory return authority off the table. [00:18:36] Speaker 00: And one way that I've thought about that that's helpful for me is as an analogy to the Supreme Court's Quarles decision in the categorical approach context where the court was evaluating the generic definition of a crime and it said if in many states [00:18:54] Speaker 00: their definition of this crime wouldn't categorically match with the generic definition, that would mean that ACCA is self-defeating. [00:19:01] Speaker 00: And that can't be the right reading. [00:19:02] Speaker 00: So it can't be the case that if conditions that are present in Mexico most of the time, or all of the time, or even much of the time would take the contiguous territory return authority off the table, that just can't be the right way to read all three statutes together, because it would make the INA self-defeating, giving with one hand what it takes away in many, most, or all circumstances with the other hand. [00:19:22] Speaker 00: So that leaves the possibility that some extreme circumstances would create a burden on the other rights that would mean that the government can't exercise contiguous territory return. [00:19:32] Speaker 00: For example, say Mexico is having a civil war at a given moment. [00:19:36] Speaker 00: Perhaps contiguous territory return is not available in that circumstance. [00:19:40] Speaker 00: But something like ordinary conditions can't be enough to take that authority off the table. [00:19:46] Speaker 00: I see I'm close to my time, so I'll reserve the rest of my time. [00:19:49] Speaker 02: I know you want to reserve your time, but I'll give you a couple extra minutes. [00:19:53] Speaker 02: In your papers, I think you seem to be critical of the district court here for issuing a universal section 705 stay. [00:20:07] Speaker 02: It looked like for me in your papers, you seem to take no issue with the universal nature of the Section 705 stay in the Northern District of Texas case. [00:20:17] Speaker 02: So I just wanted to give you an opportunity to respond why would the universal Section 705 stay be appropriate there but not here? [00:20:28] Speaker 00: Your Honor, we did argue in the Northern District of Texas that a universal 705 stay was not appropriate there either. [00:20:33] Speaker 00: The only reason that we're treating it differently is because that is in effect and we no longer have the opportunity to appeal that stay because the government dropped its appeal several years ago. [00:20:44] Speaker 00: So we don't think it was appropriate there either, but we are complying with the court's order as we must. [00:20:50] Speaker 00: So our arguments are very consistent between both. [00:20:53] Speaker 02: And so if that is true for the Northern District case, though, why wouldn't it be true for our case, the 705 universal stay? [00:21:02] Speaker 00: Well, we've pressed the same arguments in both cases, Your Honor, that they shouldn't be universal. [00:21:08] Speaker 00: And it's become even more clear post-CASA that this form of equitable relief should be limited to the parties before the court. [00:21:14] Speaker 04: Let me ask about that because CASA expressly backed away from addressing anything APA related and several courts have danced around this issue of what are the differences with APA relief versus injunctive relief of their kinds. [00:21:29] Speaker 04: Why should we map CASA onto this case in a party specific sort of way when [00:21:35] Speaker 04: I mean, wouldn't you agree APA relief really is different in a certain way? [00:21:38] Speaker 04: When you vacate an agency decision, it's not in a party-specific kind of manner. [00:21:44] Speaker 04: It's because the agency violated some procedural mechanism by which it came to its decision, and so it has a chance to do a do-over, for example. [00:21:55] Speaker 04: And that doesn't really map very well onto injunctive relief. [00:22:00] Speaker 04: Why should we map CASA onto APA relief? [00:22:04] Speaker 00: So CASA explained what the court held is a general principle of equity, which is that courts offering equitable remedies limit those remedies to the parties before them instead of creating remedies that are universal in scope and apply. [00:22:20] Speaker 00: by which I mean they apply to non-parties. [00:22:22] Speaker 00: So our argument is that section 705 is a form of equitable relief, meaning that the equitable principle announced in CASA applies to that form of equitable relief. [00:22:34] Speaker 00: So not because APA relief is exactly the same as a preliminary injunction. [00:22:38] Speaker 00: We agree it's different. [00:22:40] Speaker 00: But because it's governed by the same principles of equity. [00:22:43] Speaker 00: We think that's clear from the text of 705, which references irreparable harm, which brings up equitable [00:22:50] Speaker 00: equitable principles, and we think that's also evident from the fact that courts apply the exact same four-factor test, which the Supreme Court has said in Starbucks, is a derivation of principles of equity governing when relief is available. [00:23:06] Speaker 00: That same four-factor test applies both to preliminary injunctions and to 705 relief. [00:23:12] Speaker 02: And let me rephrase my question. [00:23:14] Speaker 02: So would we be [00:23:16] Speaker 02: creating a circuit split of some sign by going the way we did in our preliminary order, if by issuing a more limited stay. [00:23:29] Speaker 00: I don't believe that another circuit has said that Section 705 relief is properly universal. [00:23:37] Speaker 00: And if the Fifth Circuit said that, I'm now struggling to think if they said that in their Alliance for Hippocratic Medicine case. [00:23:45] Speaker 00: But at minimum, it was pre-CASA. [00:23:47] Speaker 00: And the Supreme Court, of course, reversed that decision as well. [00:23:49] Speaker 02: Thank you. [00:23:50] Speaker 00: Thank you, Your Honor. [00:24:22] Speaker 01: Good afternoon, your honors, and may it please the court. [00:24:24] Speaker 01: Tess Helgren on behalf of Plaintiff Appellee Immigrant Defenders Law Center. [00:24:29] Speaker 01: So I'd like to start by reframing the question before the court today, which is narrow. [00:24:33] Speaker 01: Did the district court abuse its discretion in granting a Section 705 stay? [00:24:38] Speaker 01: And the parties agree on the standard of review here. [00:24:41] Speaker 01: If the district court got the law right, the remaining standard is deferential. [00:24:44] Speaker 01: The district court's application of a lot of facts is reviewed for abuse of discretion, and findings of fact are reviewed for clear error. [00:24:51] Speaker 01: And we are looking at the facts on the record in this case. [00:24:53] Speaker 01: So government counsel talked about some of the uncertainties in the record. [00:24:57] Speaker 01: I would point out that [00:24:59] Speaker 01: plaintiffs did request discovery regarding the MPP 1.0 re-implementation and the discovery procedures before the district court and the government refused to produce documents. [00:25:08] Speaker 01: So what we have on the record is what we have. [00:25:11] Speaker 01: Wait, wait, can we back up on that? [00:25:13] Speaker 03: I mean, I guess I don't want to delve into it too much, but when you say they refused to produce documents, did they refuse to produce documents of the numbers that were in the MPP program? [00:25:25] Speaker 01: They objected to our request for production of any documents pertaining to the MPP 1.0 re-implementation. [00:25:32] Speaker 03: Oh, one point. [00:25:35] Speaker 03: Wait. [00:25:36] Speaker 03: And that's the issue here. [00:25:37] Speaker 03: When you say 1.0 re-implementation, there's just so many of them. [00:25:41] Speaker 03: I want to make sure we're talking about the same thing. [00:25:42] Speaker 03: What was the basis? [00:25:43] Speaker 03: Did you move to compel? [00:25:45] Speaker 03: I guess I'm trying to dig into the district court. [00:25:50] Speaker 03: But as I understand it, discovery is supposed to end in a month or so. [00:25:54] Speaker 01: Yes, discovery is set to end in September. [00:25:56] Speaker 01: And we sent those discovery requests pertaining to the re-implementation after we moved for a stay of the re-implementation. [00:26:05] Speaker 01: We did not move to compel. [00:26:07] Speaker 01: But defendants objected to those requests for production. [00:26:12] Speaker 01: And just to clarify what we're talking about here, because there are moving pieces, right? [00:26:17] Speaker 01: We are talking about, when I say the re-implementation of MPPU 1.0, I'm choosing my words carefully because that is the narrow policy that plaintiff MDF is challenging in this case. [00:26:29] Speaker 01: It is not the contiguous territory return authority under the INA. [00:26:33] Speaker 01: And it may not even be every implementation of remain in Mexico, but it is the 2019 implementation of the migrant protection protocols, which is precisely the version that was initially challenged in this case. [00:26:47] Speaker 01: And that is precisely the version that the government has announced it is planning to reimplement in the January 21st, 2025 announcement. [00:26:56] Speaker 01: So the operating guidance the same so council. [00:26:58] Speaker 04: Why do you think it's sufficiently right for us to address that now? [00:27:03] Speaker 04: What what do you understand the facts on the ground to beat it to create an eminence of harm of concrete harm? [00:27:11] Speaker 01: Yes, your honor so [00:27:12] Speaker 01: The district court correctly concluded that both constitutional ripeness and prudential ripeness was met with the facts in the record. [00:27:21] Speaker 01: So defendants' own statements confirm that MPP 1.0 was set to be re-implemented immediately with the same 2019 guidance. [00:27:30] Speaker 01: And indeed, absent the stay from the district court, defendants represented in the Texas v. Biden, now Texas v. Trump case, that the policy would have been up and running again by July 30. [00:27:42] Speaker 01: So there was a decision to actively put the policy back in place. [00:27:49] Speaker 01: And this makes it fit for a judicial decision. [00:27:51] Speaker 03: And we all... Well, Council, wait. [00:27:53] Speaker 03: Can I back up? [00:27:54] Speaker 03: Because right now, the government has only stayed as to you. [00:28:04] Speaker 03: I mean, the stay has only effect as to you as a plaintiff, right? [00:28:08] Speaker 03: So I think what we just heard from the government is they feel free to re-implement this, I don't know, 99.9% of the way, and that hasn't happened yet. [00:28:22] Speaker 03: So I guess I'm trying to say, I mean, you seem to say that as, I know you were saying that was a representation by July 30th, but clearly that didn't happen, right? [00:28:31] Speaker 03: Or are you disputing that? [00:28:32] Speaker 03: Did that happen by July 30th? [00:28:35] Speaker 01: No, Your Honor, because the stay was granted by the district court and operated in that in that time. [00:28:40] Speaker 01: So it was not. [00:28:42] Speaker 03: Yeah, but then when we issued our ruling. [00:28:46] Speaker 03: That stay was. [00:28:48] Speaker 03: That stay was state stayed, so there's nothing right now, or at least there hasn't been anything since July 18th. [00:28:58] Speaker 03: Are you just saying that that state pushed back to July 30th deadline? [00:29:02] Speaker 03: I mean, they could implement it right now. [00:29:05] Speaker 01: In accordance with this court's order, yes. [00:29:08] Speaker 01: What I was saying was that when reviewing the district court's findings on ripeness, we look to the district court's decision. [00:29:16] Speaker 01: And on the record there, what we have are what defendants represented, which is that they were planning to fully implement the program by July 30. [00:29:24] Speaker 01: Of course, intervening litigation from this court interrupted that timeline. [00:29:29] Speaker 01: And so I defer to government counsel on where they are with the program now. [00:29:33] Speaker 01: What the district court did correctly consider was the evidence in the record, which was not simply evidence of prior harm, although that is relevant legally, but also the new declarations that were submitted from immigrant defenders that are new evidence in the record. [00:29:51] Speaker 01: And so the district court correctly found that IMDef showed imminent irreparable harm [00:29:59] Speaker 01: based on the facts before it, the facts that this was exactly the same policy. [00:30:04] Speaker 01: There's not new implementing guidance. [00:30:06] Speaker 01: It's the same implementing guidance that they're seeking to reinstate. [00:30:09] Speaker 01: And the district court correctly looked to defendant's own statements in the October 2021 termination and explanation memos, where then-Secretary Mayorkas points to many of the same procedural [00:30:23] Speaker 01: issues with the implementation of MPP violations of access to counsel, issues with notice, issue with attending hearings, many of the same issues that IMDEF details in its complaint. [00:30:37] Speaker 01: And indeed in that memorandum, notably Secretary Mayorkas states that [00:30:45] Speaker 01: A key predicate of any use of the contiguous territory return authority under the statute is the ability for individuals returned to that foreign territory to participate in removal proceedings. [00:30:57] Speaker 01: And the secretary acknowledged that the reality of the implementation of MPP 1.0, again we're talking about this particular policy, was such that it did not meet that key predicate for a lawful exercise of the government's contiguous territory return authority. [00:31:13] Speaker 01: under 1225 B2C. [00:31:16] Speaker 03: Counsel, can I turn to the standing argument? [00:31:20] Speaker 03: Because I think courts and judges are trying to grapple with Hippocratic medicine. [00:31:26] Speaker 03: I mean, the difficulty here is you made your standing arguments before it developed your evidence, before Hippocratic medicine came down, Hippocratic medicine came down. [00:31:37] Speaker 03: As I navigate that, it seems like what Hippocratic Medicine has said is diversion of resources is no longer a cognizable injury for organizational standing, but core business effect is. [00:31:53] Speaker 03: And the Supreme Court has been so helpful because it's never told us what core business [00:31:59] Speaker 03: Is it fair to say, I mean, first of all, you raised your arguments, and I don't blame you for that, because our circuit precedent said diversion of resources was cognizable at the time. [00:32:11] Speaker 03: But that's really where you focused your arguments around diversion of resources, right? [00:32:17] Speaker 01: So Your Honor is correct that we applied that binding legal standard at the time in terms of analyzing the facts that established MDF's organizational standing, yes. [00:32:26] Speaker 03: But how can we apply diversion of resources after Hippocratic medicine when the Supreme Court said diversion of resources is no longer good now. [00:32:35] Speaker 03: Now you're trying to take what you said were diversion of resources. [00:32:39] Speaker 03: And as I understand it kind of fit them within this core business effect. [00:32:45] Speaker 03: But, I mean, it seems like circumventing Hippocratic medicine to take what previously were diversion of resources, injuries, which were previously cognizable, now are not, and then say, well, we can just get to the same result by relying on the core business language that the Supreme Court has said theoretically could be cognizable. [00:33:07] Speaker 02: I guess a follow up to, is there enough facts in the record that [00:33:13] Speaker 02: the district judge would allow that we would look to establish, despite the arguments or the law being looked at, was diversion of resources to also substantiate interference with core business activities. [00:33:28] Speaker 01: Thank you both. [00:33:29] Speaker 01: So the answer to that last question is yes, there is enough factual evidence in the record to establish standing. [00:33:36] Speaker 01: Can you highlight exactly what that is? [00:33:39] Speaker 01: So I would point the court to the numerous declarations that have been submitted in evidence, including multiple declarations at the class certification and preliminary injunction stage by Margaret Cardioli, the recent Toslowski and Cardioli declarations. [00:33:55] Speaker 03: But what are you relying on specifically there? [00:33:57] Speaker 03: Because what's interesting to me is those are all, those declarations all talked about diversion of resources. [00:34:05] Speaker 03: And it seems like all you're doing is taking a diversion of resources label and now stamping core business interference on it. [00:34:11] Speaker 03: And I'm like, well, wait, is that what the Supreme Court meant? [00:34:15] Speaker 03: That as long as you re-label it, you're okay? [00:34:18] Speaker 01: I understand your honor's point. [00:34:19] Speaker 01: What I would say is that the important inquiry here is what are the facts? [00:34:24] Speaker 01: And so in some cases, there may be organizations who could establish standing under the prior test who cannot under the current test. [00:34:31] Speaker 01: That's not IMDEF. [00:34:32] Speaker 01: Here, the facts that establish standing have not changed. [00:34:36] Speaker 01: And the facts are... What are those? [00:34:37] Speaker 03: Maybe you're going to go into them, but what are those specifically? [00:34:40] Speaker 01: Yes. [00:34:41] Speaker 01: So IMDEF's core business activities, whether you want to label them core business activities or their main work or their essential activities, it's providing direct representation, counseling, and legal assistance to non-citizens and removal proceedings in and around Southern California. [00:35:00] Speaker 01: That hasn't changed. [00:35:01] Speaker 01: They're providing legal services to non-citizens, many of whom are seeking protection in this particular area. [00:35:07] Speaker 03: Wait, can I back up because I think you cut out, you said in and around California, Southern California, which made sense because that's where they were ending up. [00:35:16] Speaker 03: Now they're no longer in Southern California. [00:35:20] Speaker 03: Now they're in Mexico. [00:35:22] Speaker 03: Why doesn't that mean that's not a core business, that's not a core, sorry, [00:35:29] Speaker 03: business, I forget that I'm blanking out, you know, core business activity because you weren't providing those services in Mexico at the time. [00:35:41] Speaker 01: So this is a framing question, your honor. [00:35:43] Speaker 01: Government counsel would say that this is a voluntary expansion of services, but what IMDEF has said in its sworn statements in the factual record is that in order to continue serving its core constituency, so those are the individuals and non-citizens in removal proceedings who would have come absent the government's implementation of MPP to Southern California, in order to continue serving those same individuals who are seeking protection, [00:36:09] Speaker 01: IMDEF had to change its practices in order to continue providing them with legal assistance because the U.S. [00:36:15] Speaker 01: government had implemented MPP 1.0, which meant that those individuals, IMDEF's client base, who were coming to Southern California, are now being turned around at the port of entry and returned. [00:36:28] Speaker 03: So let me ask you a couple of hypotheticals, because I'm trying to figure out how we would distinguish your client. [00:36:35] Speaker 03: I mean, you're providing legal services, right? [00:36:37] Speaker 03: You're basically a law firm providing legal services to these immigrants. [00:36:42] Speaker 03: Is that right? [00:36:42] Speaker 03: Is there more that I'm missing than just legal services? [00:36:46] Speaker 01: So MDepth provides legal services, which include counseling, legal assistant, know your rights, so variations on that. [00:36:53] Speaker 01: But yes, and MDepth's mission is to provide universal representation. [00:36:56] Speaker 03: So let's say that the government had a policy of detaining immigrants in Southern California, and you built your business around providing that legal services to them in Southern California. [00:37:10] Speaker 03: Let's take Mexico out of the equation. [00:37:12] Speaker 03: Let's say the government came in and said, well, it turns out [00:37:14] Speaker 03: that the California detention facilities are all full, but we have some in Florida that are available. [00:37:23] Speaker 03: We are going to take immigrants, new incoming immigrants who previously would have been detained in Southern California, and we're going to send them to Florida. [00:37:33] Speaker 03: Would you have standing to challenge, because now you have to open up a Florida office, you have to divert resources to Florida, would you have standing to challenge their policy of housing and detaining these immigrants in Florida as opposed to California under that scenario? [00:37:55] Speaker 01: So under that scenario, which isn't this case, but I think it would depend, Your Honor, on the harms that were actually present in the records. [00:38:04] Speaker 01: I believe you're talking about whether IMDEF would have standing. [00:38:09] Speaker 01: So would IMDEF's attorneys be able to provide the same zealous representation to those individuals notwithstanding their transfer somewhere else in the United States? [00:38:18] Speaker 01: Would that transfer actually harm the organization? [00:38:20] Speaker 01: How would it harm the organization? [00:38:21] Speaker 01: Those would be questions to ask in that scenario. [00:38:25] Speaker 01: And I think the relevance here is that the district court has asked those questions, has applied the correct law, and in its judgment found that the facts on this record show that return to Mexico did harm [00:38:37] Speaker 01: in death's ability to provide legal services. [00:38:40] Speaker 03: Applying the correct law, that's clearly not true because it didn't have the benefit of Hippocratic medicine. [00:38:46] Speaker 03: Whether you still survive under Hippocratic medicine is a separate question, but I don't think it's fair to say that the district court applied the correct law because it did. [00:38:55] Speaker 03: I mean, you agree that the district court did not apply Hippocratic medicine, did it? [00:38:59] Speaker 01: In its day decision, it did apply Hippocratic medicine, Your Honor. [00:39:03] Speaker 03: And it said it still survives under Hippocratic medicine. [00:39:05] Speaker 01: Correct. [00:39:06] Speaker 03: Okay. [00:39:07] Speaker 03: Okay. [00:39:08] Speaker 03: So my hypothetical of Florida, would you say that you would not have standing because, hey, it's easy to get on a plane. [00:39:17] Speaker 03: I'm just trying to figure out what your standing is based on. [00:39:21] Speaker 03: Is it based on the increased cost or the diversion of cost that comes into play? [00:39:26] Speaker 03: Or is it based on, there's separate harms as I understand it, that, hey, it's actually logistically complicated to get down to Mexico? [00:39:35] Speaker 03: And I'm trying to figure out where you're putting your standing bucket arguments in. [00:39:42] Speaker 01: So there are multiple buckets of harm. [00:39:44] Speaker 01: So one is certainly financial. [00:39:46] Speaker 01: I believe in one of the declarations submitted by IMDEF, they talk about $400,000 extra that they needed to spend in order to represent clients because of impediments placed by [00:39:57] Speaker 01: by MPP 1.0. [00:39:59] Speaker 01: Some of it is certainly logistical. [00:40:02] Speaker 03: If it costs $400,000 more to the bottom line to represent the same clients that would have come to California and they're in Florida, would you have standing in that scenario? [00:40:17] Speaker 01: I think, again, it would depend. [00:40:21] Speaker 01: Is $400,000 of financial injury sufficient for standing? [00:40:25] Speaker 01: I would say yes, if it's a cost that is being expended in order to continue carrying out core business activities, then yes. [00:40:34] Speaker 03: So where does this end? [00:40:36] Speaker 03: Because say Gibson Dunn does a pro bono program, and they're representing the immigrants. [00:40:42] Speaker 03: And the same thing happens. [00:40:44] Speaker 03: And Gibson Dunn has to spend $400,000 more to go to Florida or go to Mexico. [00:40:50] Speaker 03: They have injury? [00:40:51] Speaker 03: I mean, every law firm has an injury when it's harder for them to represent clients. [00:40:58] Speaker 01: So I understand your honor to be asking for a limiting principle. [00:41:02] Speaker 01: And I would say the limiting principle here is the facts in the record of how in-depth has been harmed. [00:41:07] Speaker 01: And here there are multiple. [00:41:09] Speaker 03: But that's what I am asking about. [00:41:11] Speaker 03: And I'm trying to figure out if money alone is enough. [00:41:14] Speaker 03: And you kind of are waffling because you're saying well yes but then you don't want to answer whether harm whether four hundred thousand dollars increased costs would be harmed. [00:41:24] Speaker 03: I mean if it's a harm to you. [00:41:26] Speaker 03: It has to be a harm to any other law firm that faces the same problem. [00:41:31] Speaker 02: And that can't be the law, can it? [00:41:35] Speaker 02: Wouldn't standing depend on whether that transfer is actually violating the INAI's provision regarding right to counsel? [00:41:48] Speaker 01: And we're talking about the hypothetical transfers to Florida. [00:41:51] Speaker 02: The one that's being asked here, I just want to make sure, are you incorporating or is there sufficient incorporation of the INA's provision regarding the right to counsel in that scenario? [00:42:06] Speaker 02: And I guess second, in light of the questions that Judge Nelson was asking you, is there injury beyond the financial injury? [00:42:16] Speaker 01: So to that last point, yes, there is injury beyond the financial injury. [00:42:20] Speaker 03: Well, we answered the first question. [00:42:21] Speaker 03: She asked you whether the right to counsel is one of the injuries. [00:42:26] Speaker 03: Does IMDef have any right to counsel under the INA? [00:42:29] Speaker 02: Well, the provision regarding INA, which allows people [00:42:34] Speaker 02: to have a right to counsel, and then IMDEF's mission in light of that. [00:42:40] Speaker 02: So I should have been more specific in what their core business activity is relating to the INA, allowing someone to have right to counsel. [00:42:50] Speaker 01: Okay. [00:42:50] Speaker 01: So I'm going to try to take these questions in turn, if I may, and please let me know if I miss any. [00:42:57] Speaker 01: to the question of whether some violation of the INA would need to be present in order for IMDEF to sue in this hypothetical scenario, the answer would be yes. [00:43:08] Speaker 01: There needs to be some sort of violation of law, of course, that would give rise to a challenge in the hypothetical scenario of a transfer to Florida. [00:43:15] Speaker 01: And here, plaintiffs have sufficiently pled the violations of law that MPP 1.0 is carrying out. [00:43:24] Speaker 01: in terms of whether the right to counsel runs to IMDEF. [00:43:29] Speaker 01: So the right to counsel is enshrined in the INA, and IMDEF is an appropriate party to sue in terms of that right, because they fall under the zone of interest of the statute, which the district court correctly... Wait, wait, wait, wait. [00:43:44] Speaker 03: Back up. [00:43:44] Speaker 03: How do they fall within the zone of interest? [00:43:47] Speaker 03: IMDEF has no right to counsel, right? [00:43:50] Speaker 03: So IMDEF is the counsel. [00:43:54] Speaker 03: You're claiming your client's rights. [00:43:58] Speaker 03: But you're not asserting the associational standing, are you? [00:44:01] Speaker 01: No, Your Honor. [00:44:02] Speaker 01: But IMDEF has a legally protected interest here to sue under the INA. [00:44:08] Speaker 03: Whoa, whoa, whoa. [00:44:09] Speaker 03: Where does that come from? [00:44:11] Speaker 03: Under that position, every attorney has a legally protected interest [00:44:18] Speaker 03: to sue for violations of their client's rights? [00:44:22] Speaker 03: That doesn't make any sense. [00:44:24] Speaker 01: So what does make sense is that legal service providers whose role is envisioned in the INA, and I see my time has expired. [00:44:33] Speaker 01: May I? [00:44:33] Speaker 01: Go ahead. [00:44:34] Speaker 01: Thank you. [00:44:35] Speaker 01: that those legal service providers have been found, correctly by the district court and I believe the circuit as well, to fall within the INA's zone of interest. [00:44:45] Speaker 01: And so they are able to sue under the statute. [00:44:48] Speaker 01: And actually, at this stage in the proceedings, I'm not sure that the governments continue to raise the zone of interest argument here. [00:44:58] Speaker 01: But I would point you to the district court's decision finding that IMDEF squarely falls within the zone of interest in the INA as a party that can sue to enforce those rights because of its interests in the immigration system that... How are those interests any different than any other law firm representing any client? [00:45:17] Speaker 03: I mean, IMDEF, you want an exception to say IMDEF is different. [00:45:21] Speaker 03: I guess because you have some sort of internal mission, but Gibson Dunn providing legal services, they have the same interest in their clients. [00:45:30] Speaker 03: Why would, so they have, they have standing to sue for violations of their client's interests without their client or not even their client, potential future clients. [00:45:40] Speaker 01: So whether M-DEF claims fall within the zone of interest of the relevant statute here, the statute here, the INA, that's a prudential inquiry. [00:45:50] Speaker 01: that asks whether the statute grants the plaintiff here, MDEF, the cause of action that he asserts. [00:45:54] Speaker 01: So in the East Bay Sanctuary Covenant v. Trump case, the Ninth Circuit [00:46:02] Speaker 01: upheld this very clearly, that saying that although legal service organizations who are focused on providing services to immigrants, although those organizations are neither directly regulated nor benefited by the INA, their interest in, quote, providing the asylum services they were formed to provide falls within the zone of interest protected by the statute. [00:46:21] Speaker 03: And that was before Hippocratic medicine, correct? [00:46:25] Speaker 01: Yes, but that did not pertain to that. [00:46:28] Speaker 01: That was not part of the diversion of resources [00:46:31] Speaker 01: Inquiry that was a separate aspect of the decision and that was the zone of interest test, which again is a prudential inquiry. [00:46:39] Speaker 02: Can I ask you, what would the government here have to do to enact the MPP that complies with and respects the INA's right to apply for asylum with the privilege of counsel? [00:46:55] Speaker 01: That is an excellent question, Your Honor. [00:46:57] Speaker 01: And the answer is not MPP 1.0. [00:47:01] Speaker 01: But what the government would need to do would be to take into account the conditions to which they are returning individuals and the operation of the program, and whether or not through that operation of the program in its context with whatever foreign country is being involved there, whether individuals returned to that contiguous territory could meaningfully access the other rights in the statute. [00:47:25] Speaker 01: as defendants themselves admit this contiguous return authority must be read in conjunction with the rest of the statute. [00:47:33] Speaker 01: And that's particularly true here because individuals who are subjected to MPP are legally in the custody of the US government. [00:47:41] Speaker 01: The district court found that in the motion to dismiss order, and that's under 8 CFR 235.3D. [00:47:47] Speaker 01: So in the context of placing individuals into a contiguous territory return policy, [00:47:53] Speaker 01: the government does have the responsibility to ensure that they can still access the other rights under the statute when they are being placed in that program by the government. [00:48:04] Speaker 02: And a separate sort of question is, do you think DH here adequately explained its reasoning as to how and why it re-implemented the Remain in Mexico policy? [00:48:21] Speaker 02: If not, are you intending to try to file an amended complaint and bring a procedural APA claim, or that challenges the soundness of the reason, or what's your response to that? [00:48:37] Speaker 01: So there was very little explanation in the reimplementation decision. [00:48:41] Speaker 01: Although the decision stated that facts on the ground are favorable, there was no further explanation, but plaintiff [00:48:51] Speaker 01: understand that the district court was correct in finding that this reimplementation can be stayed under the scope of our current second amended complaint because applying the Ninth Circuit's precedent in Pacific radiation oncology, there's a clear nexus between the injury that is claimed in plaintiff stay motion and the conduct that's asserted in IMDEF's operative complaint. [00:49:12] Speaker 01: Again, that's because the policy here that's being reimplemented is the same based on everything we have in the record. [00:49:18] Speaker 01: It is the 2019 implementation of MPP. [00:49:21] Speaker 01: 1.0. [00:49:22] Speaker 01: And so the district court correctly held that amendment's not necessary in the sense that there's no meaningful difference between the 2019 version of MPP 1.0 before and the re-implementation here based on what we know. [00:49:33] Speaker 04: So I understand that you're not challenging the notion of any contiguous territory policy is problematic. [00:49:40] Speaker 04: What is it about MPP in particular and its re-implementation that is specific to this program that is causing the violations of the INA? [00:49:53] Speaker 01: Absolutely, Your Honor. [00:49:54] Speaker 01: So I would say actually many of the things I'm about to list are documented very well by defendants themselves, again, in that October 2021 termination memo and the explanation memo. [00:50:06] Speaker 01: The ways in which MPP violates the Constitution and rights under the INA include the limitation on attorney's speech with their client to just one hour before [00:50:17] Speaker 01: immigration court hearings in the United States. [00:50:34] Speaker 01: actually substantively meaningful pro bono attorney lists to non-citizens, which would provide a list of counsel who actually were able to take MPP cases or US asylum cases in Mexico. [00:50:45] Speaker 01: The widespread lack of notice under the program to individuals of their hearings. [00:50:50] Speaker 01: The requirement that to attend their hearings, individuals had to report to ports of entry in the middle of the night, requiring them to travel in a very dangerous time [00:51:00] Speaker 01: in a way that made them conspicuously vulnerable targets to cartels and indeed many individuals were even removed in absentia because they were kidnapped on their way to the port of entry for their hearings. [00:51:10] Speaker 04: What if the government is aware that there's violence along the border in Mexico but the US government is not the Mexican government and it can't control those conditions of violence? [00:51:23] Speaker 04: What then does that how does that affect if that if that impacts? [00:51:30] Speaker 04: Meaningful access to the asylum system process, but the US government has no control over that The border what do we make of that? [00:51:38] Speaker 01: So I agree with your honor that that the US government does not control conditions in Mexico But the US government does control whether it chooses to use its contiguous territory return policy in a particular manner and as the district court aptly pointed out that [00:51:53] Speaker 01: that the government cannot place restrictions on attorney-client communication by placing people in MPP 1.0 and then claim no responsibility for that. [00:52:04] Speaker 01: And again, this is, you know, I would point the court again to the fact that individuals in MPP are legally in custody of the U.S. [00:52:11] Speaker 01: government. [00:52:12] Speaker 01: So when government counsel seeks to distinguish cases like Orantes Hernandez v. Thornburg, we would actually say those cases are incredibly apt here because just as there, [00:52:22] Speaker 01: The U.S. [00:52:22] Speaker 01: government has a responsibility to the individuals who are returned to Mexico to ensure that they are able to access their procedural rights. [00:52:31] Speaker 01: The U.S. [00:52:31] Speaker 01: government can choose not to return them to Mexico certainly, but if the U.S. [00:52:35] Speaker 01: government chooses to do so, there is a responsibility there in order to lawfully use its contiguous territory return authority. [00:52:46] Speaker 01: that they ensure that those individuals can access counsel as also guaranteed under the INA, can access the meaningful right to seek asylum as also guaranteed under the INA. [00:52:56] Speaker 04: Well, let me ask this because I intend to ask your friend on the other side. [00:53:00] Speaker 04: One of the new arguments raised in the merits briefing is that the only type of way to challenge what is going on is through a petition for review process. [00:53:10] Speaker 04: I wanted to give you a chance to respond to that. [00:53:12] Speaker 04: Why do you think that's wrong that MDEF isn't able to challenge it itself? [00:53:19] Speaker 01: So the PFR process, the petition for review process, is not actually available to individuals in MPP because individuals were actually seeking access to the very adjudication system that provides the PFR process. [00:53:35] Speaker 01: And so the district court correctly concluded that jurisdictional bars in the INA that have to do with petitions for review don't apply here because [00:53:44] Speaker 01: There's no challenge to a specific basis of an order of removal in this case. [00:53:48] Speaker 01: Rather, the challenge is about individuals seeking to avail themselves of the administrative system that exists to litigate their immigration cases, which renders their claims [00:53:57] Speaker 01: independent of or collateral to the removal process. [00:53:59] Speaker 04: I mean, I think there's a bigger problem, just to tell you what I think. [00:54:03] Speaker 04: But even if an individual was subject to the removal process, if they raise an APA claim, the BIA can't adjudicate it. [00:54:11] Speaker 04: That's not something that the agency can do. [00:54:13] Speaker 04: It has to be a federal court that addresses whether the government is violating the APA or not. [00:54:18] Speaker 04: So it seems the wrong channel to try to do it through a PFR, through a removal process and then circuit review. [00:54:25] Speaker 01: I would agree, Your Honor, and certainly the remedies that are being sought in this case are not remedies that could be granted through the petition for review process, which ultimately is about an individual moving through on their removal order. [00:54:37] Speaker 01: And moreover, the district court did aptly point out that the PFR process is not available to an organizational plaintiff like IMDEF here, citing to the Las Americas Immigrant Advocacy Center case in the District of Oregon. [00:54:51] Speaker 01: Allowing an organizational plaintiff like IMDEF to allege systemic problems here, independent of any specific removal orders, does not thwart the purpose of the jurisdictional bars in the INA. [00:55:02] Speaker 01: And again, all of this needs to be read against the strong presumption of judicial review absent clear legislative intent. [00:55:09] Speaker 02: Any other questions? [00:55:11] Speaker 02: No. [00:55:11] Speaker 02: All right. [00:55:12] Speaker 02: Thank you very much. [00:55:13] Speaker 02: Thank you. [00:55:27] Speaker 02: Ms. [00:55:28] Speaker 02: Welch, I'll give you five minutes if you need it. [00:55:30] Speaker 00: Thank you, Your Honor. [00:55:31] Speaker 00: I'll try to be brief. [00:55:36] Speaker 00: I'd like to start where my friend started, which was disambiguating exactly what is being challenged here. [00:55:42] Speaker 00: I believe IMDEF is saying that they are challenging MPP 1.0. [00:55:47] Speaker 00: That is a change of position to the extent that's what they're saying, as we explain on pages eight and nine of our reply brief, citing several portions of the record. [00:55:55] Speaker 00: For example, their stay motion at 2ER176 says, [00:55:59] Speaker 00: that they are requesting, quote, that this court stay the re-implementation of MPP 1.0. [00:56:04] Speaker 00: And of course, all the briefing on final agency action, which has attempted to set up the re-implementation announced in the January 21st, 2025 press release as a separate final agency action. [00:56:14] Speaker 00: All of that is beside the point if all along, MDEF has really been challenging MPP 1.0 itself. [00:56:20] Speaker 00: And I take the reason that MDEF chose to challenge re-implementation as a putatively separate final agency action is one, to distance itself from the Supreme Court's stay of a previous attempt to take MPP offline, and two, to lessen the apparent risk of conflict with the Northern District of Texas' universal 705 stay. [00:56:44] Speaker 00: I'd like to also touch briefly on standing, just a couple quick points. [00:56:48] Speaker 00: The problem with IMDEF's argument that re-implementation affects its core business activities is its own statement at 2ER205, for example, saying that it made the changes in response to MPP, quote, at the expense of its core programs, indicating that they are not themselves IMDEF's core programs. [00:57:10] Speaker 00: I'd also point the court to Alliance for Hypocrisy. [00:57:15] Speaker 04: What I'm struggling with, and I was listening very intently with Judge Nelson's colloquy with counsel on the other side, I'm having a tough time figuring out what would be a court business activity injury if it didn't involve some sort of a reaction to a policy that the government implements. [00:57:35] Speaker 04: If at the end of the day we keep going down the road of, well, you spent money, but that was in response to this, and so you're buying your way into it, when then, can you elaborate for me, what is a core business activity injury that doesn't involve something that involves the organization reacting to the thing that they're challenging? [00:57:55] Speaker 00: So I would say at the outset, it should be hard to think of those examples. [00:58:00] Speaker 00: And Alliance for Hippocratic Medicine acknowledges that by saying that Havens is a, quote, unusual case. [00:58:05] Speaker 00: So it should be something odd when the party that's not itself being the subject of regulation has, nonetheless, an injury to its core business activities that allows it to sue in its own right. [00:58:18] Speaker 04: But be that as it may, as Judge Nelson pointed out, Hippocratic Medicine does say they're still standing for core business activity injuries, but not buying your way into standing. [00:58:31] Speaker 04: So what is the core business activity prong of this that we should look at in order to analyze this one way or the other? [00:58:38] Speaker 00: I think the other difficulty is coming from the fact that the Supreme Court hasn't told us what core business activities are, and that this case wasn't litigated with core business activities in mind as the touchstone of what would give the organization standing. [00:58:50] Speaker 00: So I think that's why it's difficult. [00:58:52] Speaker 00: I'm hesitant, as organizational standing cases are being litigated in light of Alliance for Hippocratic Medicine, [00:58:59] Speaker 00: to affirmatively offer what I think would be sufficient, other than just pointing back to Havens, where what the organization did was provide information about housing. [00:59:09] Speaker 00: And what injured it was receiving false information about housing so that it wasn't then able to do that thing that it had always been doing. [00:59:16] Speaker 03: So here, if the government provided false information to immigrate defenders, [00:59:24] Speaker 03: suppose, you know, that, you know, and said, hey, we're actually detaining these people, you know, in Eastern Mexico, and it turns out it's all in Western Mexico, that might be organizational standing. [00:59:40] Speaker 00: I think so, Your Honor. [00:59:41] Speaker 00: I'm not sure I followed all the details of that. [00:59:44] Speaker 03: Well, I'm just trying to analogize this to Havens. [00:59:46] Speaker 03: I'm not sure there is an analogy, because I'm not sure that the government owes [00:59:51] Speaker 03: information to them, but if the government were lying to, you know, or providing false information, which is not an allegation here to be clear, but if the government were providing false information as was provided in Havens, perhaps that would, that at least would address perhaps the hypothetical that [01:00:13] Speaker 03: you know, we're seeking for where there's organizational standing because they're actually injured by false information that's being provided. [01:00:20] Speaker 00: I think that's right, your honor. [01:00:21] Speaker 00: So just to put a little bit more flesh on the bones, I think two things would make it easier to say something as a core business activity. [01:00:28] Speaker 00: One would be if the organization has been doing it all along. [01:00:31] Speaker 00: If you could look at the activity and say, oh, this is what the organization does, and it's continuing to do that thing after the change that it's challenging. [01:00:41] Speaker 00: And I'm sorry, I'm now forgetting what the second one was going to be. [01:00:44] Speaker 00: But I would point back to the statement in Alliance for Hippocratic Medicine at 394 that it's not enough if an action impairs the organization's ability to provide services and achieve its organizational mission. [01:00:57] Speaker 00: So I guess that was the second one, was that it's not something abstract. [01:01:00] Speaker 00: It's not a sort of general statement of the organization's mission, the thing that it hopes to achieve. [01:01:05] Speaker 00: But you're looking at what it's actually doing on the ground. [01:01:08] Speaker 00: So I think those would be two things to help clarify that. [01:01:12] Speaker 02: Well, I guess in trying to figure out with what we have in Hippocratic Medicine, the core business activity part of this, we don't look to expenditure of money at all or solely. [01:01:34] Speaker 00: So I think it's not the case that expenditure of money making an activity more expensive will always be irrelevant. [01:01:43] Speaker 00: I think it can be helpful to illustrate that the organization is being concretely harmed in what it's been doing all along. [01:01:50] Speaker 00: But just a version of resources is clearly not sufficient. [01:01:55] Speaker 02: I understand that. [01:01:57] Speaker 02: It seems like M-DEF here had to spend more money and resources [01:02:05] Speaker 02: I'm trying to figure this out to keep affecting its mission, which in its view is its core business activity of representing direct representation of immigrants, but also educational and consultation and other, you know, an umbrella of those sorts of issues. [01:02:33] Speaker 02: that correlate, I guess, to the INA provision that gives asylum seekers the right to counsel. [01:02:45] Speaker 02: It seems that that's at least different from the doctors who were trying to achieve standing in Hippocratic medicine. [01:02:57] Speaker 00: So as for what IMDEF has done and the evidence and the record, I think we should take IMDEF at its word, which is that it began representing a different population, began doing cross-border activities, so in a different place from a newly opened office, and that it did all of that in its own words in response to MPP. [01:03:19] Speaker 00: Alliance for Hippocratic Medicine tells us that phrase in response to, this is page 395 of the opinion, is not sufficient to establish standing. [01:03:27] Speaker 00: When an organization does that, it's not sufficient to establish standing because otherwise that would throw the doors of organizational standing wide open. [01:03:34] Speaker 02: But that would, to me, and again, I mean, we just may disagree on this, but that was in the context of just spending money to advocate a policy that wasn't enough there. [01:03:50] Speaker 02: I think they were trying to achieve standing by just spending money to advocate against the presto. [01:03:59] Speaker 02: So that may be a distinction. [01:04:01] Speaker 02: I guess we'll have to see where we land on this. [01:04:04] Speaker 02: But thank you. [01:04:06] Speaker 00: Thank you. [01:04:06] Speaker 02: Unless you have anything else. [01:04:08] Speaker 02: Thank you very much. [01:04:09] Speaker 00: Thank you, Your Honor. [01:04:12] Speaker 02: Thank you both. [01:04:14] Speaker 02: As you know, this is a special sitting to hear this case, but I very much appreciate on behalf of the court your oral argument presentations here today, Ms. [01:04:24] Speaker 02: Hellegren and Ms. [01:04:25] Speaker 02: Welch. [01:04:26] Speaker 02: Thank you so much. [01:04:28] Speaker 02: The case of Immigrant Defender Law Center versus Kristi Noem, Secretary of the Department of Homeland Security, is now submitted and we are adjourned. [01:04:39] Speaker 02: Thank you.