[00:00:17] Speaker 00: All right, we will now take up National TPS Alliance versus Kristi Noem and the Department of Homeland Security. [00:00:28] Speaker 00: You may proceed, counsel. [00:00:31] Speaker 04: Good morning. [00:00:31] Speaker 04: May it please the court, Drew Ensign, Deputy Assistant Attorney General for the United States. [00:00:36] Speaker 04: I'd like to reserve four minutes for rebuttal. [00:00:39] Speaker 04: Yes, and please watch your clock Thank you your honor as the Supreme Court is already implicitly recognized by an exceptionally lopsided vote The government is likely to prevail on appeal here either in this court or if necessary in the Supreme Court This court should follow the Supreme Court's lead and reverse This case should begin and end with jurisdiction [00:01:01] Speaker 04: Congress has gone out of its way to enact an exceptionally broad prohibition on judicial review, providing that, quote, there is no judicial review of any determination of the secretary with respect to the designation or termination or designation or extension of designation of a foreign state under the subsection, end quote. [00:01:20] Speaker 04: The language has two features that make it particularly broad. [00:01:25] Speaker 04: First, it employs the adjective any to modify determination, [00:01:29] Speaker 04: And second, it applies to any determination, quote, with respect to the designation or termination or extension, end quote, and not merely terminations and extensions themselves. [00:01:40] Speaker 04: This language is exceptionally similar to Patel versus Garland, which held that a statute borrowing review of, quote, any judgment regarding the granting of relief, end quote, covered, quote, any authoritative decision, end quote, on the matter. [00:01:56] Speaker 04: Similarly, this court's decision in Reeve versus Thomas [00:01:59] Speaker 04: that Congress's exclusion of APA review of, quote, any determination, decision, or order, end quote, of the Bureau of Prisons barred review, even in the habeas corpus context. [00:02:10] Speaker 04: So here, the secretary's vacator of Secretary Mayorkas's 11th hour extension of TPS status falls squarely within Congress's prohibition of judicial review. [00:02:20] Speaker 04: It was a, quote, determination, dot, dot, dot, with respect to dot, dot, dot, and extension, end quote, of TPS status. [00:02:28] Speaker 04: It is squarely within the heartland of the jurisdictional bar that Congress has enacted. [00:02:33] Speaker 03: So what couldn't the Secretary do with respect to that? [00:02:38] Speaker 03: You can see there are vacators nowhere in this statute. [00:02:41] Speaker 03: So any determination with respect, if this is a determination with respect to an extension, what isn't? [00:02:50] Speaker 04: Your honor, I mean, certainly this is very broad language. [00:02:52] Speaker 04: And just to be clear, I don't think we concede that vacator isn't in the statute. [00:02:57] Speaker 04: We think it's implicit in the grant of authority. [00:03:00] Speaker 03: We'll be textualist for a second. [00:03:02] Speaker 03: In the text of the statute. [00:03:04] Speaker 04: Your honor, I think the effect of the text of the statute when combined with background principles. [00:03:08] Speaker 04: Understood. [00:03:09] Speaker 04: Thank you, your honor. [00:03:12] Speaker 04: It is exactly as Congress intended, anything with respect to determination. [00:03:16] Speaker 04: Now, there may be edge cases. [00:03:19] Speaker 04: The Supreme Court does have the kind doctrine that is recognized and reiterated a couple years ago, where something is extraordinarily and blatantly ultra-virus. [00:03:32] Speaker 04: Sometimes you can get judicial review even in the teeth of a prohibition. [00:03:36] Speaker 03: Let's have an example of a determination that grants perpetual protected status. [00:03:48] Speaker 04: Your honor, I think that potentially could fall within the kind exception. [00:03:50] Speaker 04: But notably here, plaintiffs have not attempted to invoke or even acknowledge that doctrine. [00:03:57] Speaker 04: But the Supreme Court has devised that sort of safety valve for extraordinary cases like that. [00:04:06] Speaker 04: But we're not only not here, it's not even being argued here. [00:04:09] Speaker 04: And more generally, when Congress enacts a very broad prohibition on judicial review, that's Congress's determination. [00:04:16] Speaker 04: that these matters are reserved to the political branches. [00:04:20] Speaker 04: If the executive does something that is beyond the pale, such as like a perpetual extension, Congress recognizes that they can certainly step in to correct that. [00:04:30] Speaker 00: Isn't the first claim alleged that the secretary overstepped her statutory authorization by vacating a prior grant of TPS? [00:04:44] Speaker 04: Yes, that is the nature of their claim, but that is not the sort of thing that would fall within kind. [00:04:49] Speaker 04: Kind is the sort of more like what Judge Johnson was referring to where it says you can only grant an extension for up to 18 months and you grant one that's perpetual. [00:04:58] Speaker 04: It has to be something that is egregious and, you know, beyond the pale. [00:05:03] Speaker 03: And again, plaintiffs have not even attempted to... But this is just the other side of this infinite spectrum. [00:05:09] Speaker 03: The Secretary is essentially saying that it's granted for zero days. [00:05:13] Speaker 04: I don't believe so, Your Honor, for a couple of reasons. [00:05:18] Speaker 04: I mean, I think what we have here is you have a background principle of administrative law that everyone acknowledges that as a general matter, agencies have authority to reconsider their decisions as long as they do so in a timely manner. [00:05:30] Speaker 04: And timeliness is not remotely contested here or frankly contested. [00:05:34] Speaker 04: So what you have is a disputed inference about text, which is not the sort of patently ultra-virus. [00:05:41] Speaker 04: It is an ordinary dispute about agency authority, where even they admit two things that I think are interesting. [00:05:51] Speaker 04: On page 39 of their brief, they say, no doubt this secretary has authority to correct inadvertent ministerial errors. [00:05:58] Speaker 04: So they're already admitting that the Secretary has some authority to reconsider. [00:06:03] Speaker 00: Is this an inadvertent or ministerial error? [00:06:06] Speaker 00: It seems like it's not. [00:06:08] Speaker 04: No, your honor, but I think that concession is important because it recognizes the existence of some authority and we're just fighting about the extent of it. [00:06:17] Speaker 03: Why wouldn't the existing authority lead us to the same place as at least where we landed in the Ramos case? [00:06:25] Speaker 03: I understand it's vacated, but working with the same sources, it seems like the line that they drew would have placed this on the side of reviewable. [00:06:36] Speaker 04: Your Honor, I don't think so. [00:06:38] Speaker 04: Obviously, as you've acknowledged, it is not binding authority. [00:06:41] Speaker 04: But the Ramos case did acknowledge the authority to do this. [00:06:45] Speaker 04: And it also recognized that it precludes direct review of the Secretary's country-specific TPS determinations. [00:06:56] Speaker 03: But if the Secretary exceeds the statute but only does it once, why does that make it a country-specific determination? [00:07:05] Speaker 04: because it's a determination with respect to one country. [00:07:08] Speaker 03: The fact that it was vacated presumably is a power that could be exercised with respect to anyone. [00:07:14] Speaker 03: It wasn't vacated because, even with respect to the vacator notice itself, it wasn't vacated because of anything about Venezuela. [00:07:26] Speaker 04: I think that's correct as to the vacator. [00:07:28] Speaker 04: The rationale is given. [00:07:30] Speaker 03: And if the secretary loses on vacator, we don't need to reach the terminations, right? [00:07:38] Speaker 04: Your honor, let me clarify that first thing and then circle back to it. [00:07:41] Speaker 03: I thought you might. [00:07:42] Speaker 04: Go ahead. [00:07:43] Speaker 04: It is very country specific in that what Secretary Mayorkas did was incredibly country specific. [00:07:48] Speaker 04: It revolves around Venezuela and nothing else. [00:07:51] Speaker 04: And this is a vacator of it. [00:07:52] Speaker 04: I don't think there's any reasonable way to understand [00:07:55] Speaker 04: the vacator of a country-specific decision as itself being anything other than country-specific. [00:07:59] Speaker 03: It was country-specific, your argument is, it was country-specific because of the consolidation and realignment of the registration process that was only, because it was merging in some ways these two Venezuela TPS determinations. [00:08:14] Speaker 04: I think that's part of it, Your Honor, but just more simply, it's country-specific because it is specific to one country. [00:08:19] Speaker 03: I mean, that's, you know... So the Secretary gets one bite at the apple or a mulligan with respect to exceeding the statute, but if it applied to more than one country, then we might be talking about jurisdiction. [00:08:36] Speaker 04: Your Honor, we certainly disagree with what Ramos held, but I think that Ramos did recognize some room for the sort of programmatic and more overarching challenges. [00:08:49] Speaker 04: I think that, you know, we think that's wrongly decided, but we also don't think that's necessarily reach here because this is a country-specific determination. [00:08:59] Speaker 04: And in that way, it's also unlike McNary, it is not a programmatic challenge, it is a challenge to a specific country one. [00:09:06] Speaker 04: It is directly within the heartland of what Congress has prohibited. [00:09:11] Speaker 04: Again, it is quite literally a determination with respect to an extension. [00:09:16] Speaker 04: That is the exact language that Congress used. [00:09:19] Speaker 04: That's why it's prohibited. [00:09:20] Speaker 04: I think that's why the Supreme Court was so lopsided in its vote. [00:09:24] Speaker 04: I mean, that's, of course, we don't know definitively what merits grounds they reach. [00:09:29] Speaker 04: But I suspect that was not a small part of why [00:09:33] Speaker 03: Well, this may be a good segue then to something the Supreme Court had said earlier that it's important that we receive genuine justifications for important decisions, in this case from an agency. [00:09:44] Speaker 03: And so as we look at the justifications, again, on the second APA challenge, the terminations contain some, you know, report to contain national security, [00:10:00] Speaker 03: maybe not national security, but public safety justifications. [00:10:04] Speaker 03: And I'm just wondering, given the seriousness of that, whether the administration has moved to exercise its power to withdraw TPS status from anyone, which is an alternative it can take if it's worried about the public safety threat that particular TPS recipients may pose. [00:10:25] Speaker 04: Your Honor, I don't know specifically if they tried to do so in individual instances. [00:10:28] Speaker 04: It's obviously a programmatic challenge. [00:10:31] Speaker 04: I wouldn't be surprised if they have done so, but candidly I don't know. [00:10:33] Speaker 03: Do you concede that under the statute and then under 8 CFR 2414 that the secretary can withdraw on an individual basis even with respect to admissibility grounds that arise after the grant of status? [00:10:48] Speaker 04: That is an additional tool that Congress has specifically provided to the Secretary that is not to the exclusion of her authority. [00:10:54] Speaker 03: Well, then how does that bear on whether the Secretary's action was arbitrary or capricious or whether the justification was sufficient if we don't even know whether the Secretary has exercised pre-existing authority to address particular public safety threats posed by recipients of TPS? [00:11:13] Speaker 04: several responses to that, Your Honor. [00:11:15] Speaker 04: I think, first of all, given that the numbers involved here, there's not really an intersection between individual determinations and an overarching program. [00:11:24] Speaker 04: There's no suggestion that the Secretary could exercise her discretion in hundreds of thousands of cases in a way that would somehow supplant or render a feasible alternative what [00:11:36] Speaker 04: is in fact a duty imposed on her by Congress. [00:11:39] Speaker 04: It is not merely that she may terminate TPS status when it no longer meets the statutory requirements. [00:11:45] Speaker 04: Congress commanded that she shall terminate it. [00:11:48] Speaker 04: So even that existence of alien-specific authority does nothing [00:11:52] Speaker 04: to either diminish your authority or the congressional command. [00:11:55] Speaker 02: Can you point me to the statute and specifically the language that you're indicating that gives the secretary the authority to terminate a prior designation of TPS status? [00:12:07] Speaker 02: What specific language to the statute are you pointing to? [00:12:11] Speaker 04: We're not pointing to specific language, Your Honor. [00:12:13] Speaker 04: It is a bedrock and well-established principle of administrative law that this court is recognized in CUA and essentially every circuit court is recognized in a very long string site we've provided. [00:12:25] Speaker 04: The courts have inherent authority to reconsider, or sorry, not courts, that agencies, forgive me, have inherent authority to reconsider their decisions as long as it's done in a timely manner. [00:12:34] Speaker 02: But when Congress has specifically limited the time period of the kinds of [00:12:41] Speaker 02: designations and the extensions that can be provided. [00:12:44] Speaker 02: Doesn't that counter your argument? [00:12:47] Speaker 02: Here, Congress has specifically said, hey, we will give you this authority for this period of time, and really only this period of time. [00:12:56] Speaker 02: Your argument is like, no, no, no, we still have, the Secretary still has the authority to change what Congress's grant is. [00:13:04] Speaker 04: Your Honor, I don't believe so. [00:13:06] Speaker 04: While the statute does provide a mechanism for termination, it does not speak to vacator whatsoever. [00:13:13] Speaker 04: And indeed, I believe there's a concession in their answering brief that the statute is silent as to vacator. [00:13:19] Speaker 04: And where a statute is silent on the matter, the default principle of administrative law kicks in, and the agency retains its authority to reconsider decisions [00:13:27] Speaker 04: as long as it's done so in a timely manner. [00:13:29] Speaker 04: And again, timeliness is not challenged. [00:13:31] Speaker 03: Why isn't this, I mean, I think that isn't that a statute-specific inquiry? [00:13:36] Speaker 04: Your Honor, it is a default principle that then turns on a statute-specific inquiry to see an exception to that default principle would apply. [00:13:45] Speaker 03: And we have, as I understand it, this statute was enacted against a backdrop of congressional concern about the executive's [00:13:55] Speaker 03: about the executive having too much discretion with respect to both the selection of deferred enforcement and other executive actions, as well as the duration of those. [00:14:11] Speaker 04: Your Honor, I disagree with that premise for two reasons. [00:14:13] Speaker 04: First of all, this was enacted against a rack drop that, as the DC Circuit recognized, [00:14:18] Speaker 04: that previous sorts of discretion for temporary status was unreviewable under the APA, and Congress enacted against that backdrop this very specific jurisdiction stripping statute. [00:14:31] Speaker 02: So I don't think... Council, has any administration ever since the enactment of the statute done exactly what this administration done, which is take away a prior designation of TPS status? [00:14:44] Speaker 04: Not specifically, Your Honor, but the prior administration did, in fact, exercise reconsideration authority to vacate a prior cancellation of a status. [00:14:53] Speaker 04: And I think that's important, too, because as my second answer to Judge Johnstone's question was, the statute is fundamentally different in a second way. [00:15:02] Speaker 04: It constrains discretion, but it does so in a very specific way. [00:15:06] Speaker 02: It says that the- Just to be clear, the answer is no. [00:15:10] Speaker 02: This never happened before. [00:15:12] Speaker 04: Your honor know that we've never the reconsideration authority has been exercised before no it has not been exercised in this specific manner before thank you, but it absolutely has been exercised before and a week a week after so the timeline here it is troubling because my [00:15:34] Speaker 00: Secretary Mayorkas extended the 2023 designation and consolidated 2021 and 2023 on January 17, 2025. [00:15:44] Speaker 00: And the new secretary, I don't know when she was even confirmed, but took action to revoke that about two weeks later. [00:15:57] Speaker 00: I mean, how can the conditions [00:16:02] Speaker 00: Country conditions have changed so drastically in that two-week period Your honor that the review by the new administration have been done so quickly I guess several responses that your honor first of all as Justice Rehnquist's concurrence in the state farm case recognizes Administrations have different priorities, and they are allowed to weigh evidence differently as to the specific reasoned explanation for their changing position and [00:16:30] Speaker 04: Yes, Your Honor, and I think it's important on that arbitrary and capricious claim, because I think what's particularly notable is that the Secretary gave many reasons, and neither the District Court nor Appellee's answering brief even touches one which would be fully sufficient to justify the vacator. [00:16:49] Speaker 04: Specifically, Secretary Noem [00:16:51] Speaker 04: explained that the explanation for the operative impacts of the extension was, quote, thin and inadequately developed, end quote, and that vacator was warranted to untangle the confusion. [00:17:05] Speaker 04: The district court never addressed that specific rationale that the prior explanation was thin and inadequately developed, [00:17:13] Speaker 04: And you will also not find any discussion of that in the answering. [00:17:16] Speaker 03: But if that were grounds for the invalidity of Secretary Mayorkas's extension, could not someone sue and change? [00:17:26] Speaker 03: I mean, in other words, you're suggesting it was something like arbitrary and capricious or otherwise didn't comply with the statute. [00:17:33] Speaker 03: The legal merits of it, and I think this is one of the teachings of the Supreme Court's decision in the Regents case, [00:17:42] Speaker 03: Let that be litigated. [00:17:43] Speaker 03: If it's a legal concern, have the lawyers deal with it. [00:17:48] Speaker 03: But what you can't do is disguise that as a policy reason when there's not otherwise authorization to do so. [00:17:55] Speaker 04: Well, I think a couple of responses to that, Your Honor. [00:17:57] Speaker 04: I mean, generally, you could litigate it. [00:17:59] Speaker 04: And of course, there's a specific jurisdictional bar here. [00:18:02] Speaker 04: They have attempted to litigate it, but they haven't attacked that rationale as protection. [00:18:07] Speaker 04: You can't ignore entire independent bases for what the secretary does and then say we won on an arbitrary and capricious challenge. [00:18:16] Speaker 02: The other troubling aspect of this, and I think it's worth mentioning, [00:18:19] Speaker 02: The statements by the Secretary, and frankly by the President, but the statements by the Secretary saying specifically the Venezuelans purposely emptied out their prisons, emptied out their mental health facilities, and sent them here. [00:18:37] Speaker 02: Don't these seem to be, and I'm not gonna get into all the different other statements that were made that arguably are racist, [00:18:47] Speaker 02: not only by her, but by the administration. [00:18:55] Speaker 02: What do we do with those statements? [00:18:56] Speaker 02: What do we do with, in terms of this decision to have been done about two weeks after they came in? [00:19:05] Speaker 04: Your honor, I think what you should do with them is approach them as the Supreme Court did in the Trump versus Hawaii case, where they are made prior to when people are in office or are remote in context from the decision at issue. [00:19:18] Speaker 04: They do not control the equal protection analysis. [00:19:23] Speaker 04: That's precisely how the Supreme Court addressed that in Trump versus Hawaii. [00:19:27] Speaker 04: You know, the vast majority of Secretary Noem's statements refer to before she was in office. [00:19:32] Speaker 04: I believe all of the statements of President Trump refer to when he was either campaigning or when he was in office the first time, which is, you know, very remote in time. [00:19:44] Speaker 04: And so I think you should approach them as the Supreme Court has directed lower courts to approach them, that those sorts of statements do not make out an equal protection claim. [00:19:56] Speaker 04: And I think more than just that, I think only rational basis review here applies. [00:20:01] Speaker 04: I think that also comes out of the Hawaii case, and I think that comes out [00:20:06] Speaker 04: not just the Hawaii case, but in particular, direct the court to Hawaii, Matthews, Mandel, and Heresides. [00:20:15] Speaker 04: I think all of those cases are very important to establish why rational basis review applies here. [00:20:22] Speaker 04: My friend has given two other reasons why it shouldn't, and I think both of them do not apply. [00:20:28] Speaker 04: The first is that they say that rational basis shouldn't apply for aliens already in the United States, but the Hawaii court already rejected that by citing to the Matthews case where it was an equal protection clause challenge to people already in the United States and so doing it recognized that rational basis applied to that. [00:20:50] Speaker 03: Even on a rational basis, if animus were the rationale for the action, it would still render it constitutionally suspect. [00:21:01] Speaker 03: I take your briefs to disavow any such purposes of the Secretary's action here. [00:21:09] Speaker 04: We certainly disavow and deny any sort of animus. [00:21:13] Speaker 04: We also don't think that those statements are relevant to the right inquiry, as the Supreme Court made clear in the Hawaii case. [00:21:21] Speaker 04: The relevant question is whether there is a [00:21:28] Speaker 04: Sorry, it's facially legitimate and bona fide reason. [00:21:32] Speaker 04: And you look to the document itself. [00:21:34] Speaker 04: And where that inquiry is satisfied, as it was in the Hawaii case, that's the end of the equal protection analysis. [00:21:42] Speaker 04: Finally, just on a rational basis, if I could, this court also has binding precedent on this. [00:21:47] Speaker 04: And I'm going to butcher the name of this, but the Manascus case [00:21:51] Speaker 04: says that when challenged under equal protection, line drawing decisions made by Congress or the President in the context of immigration and naturalization must be upheld if they are rationally related to a legitimate government purpose. [00:22:03] Speaker 04: We also cited two other cases to the same effect. [00:22:06] Speaker 04: So for all of those reasons, we think the rational basis applies. [00:22:09] Speaker 04: The Supreme Court. [00:22:10] Speaker 03: But how do we get around our region's decision that [00:22:15] Speaker 03: I guess we can debate whether it's law or not, but I believe that we've suggested that Arlington Heights is the appropriate standard to review claims of animus in making immigration policy. [00:22:26] Speaker 04: Your Honor, I disagree for two reasons. [00:22:28] Speaker 04: First of all, in regents, they merely assumed that the Arlington Heights standard applied and held that plaintiff's evidence failed under it. [00:22:35] Speaker 04: That's not a holding that it did apply. [00:22:37] Speaker 04: It's simply a essentially sidestepping of, like, even if you think the more rigorous standard applies, [00:22:42] Speaker 04: your evidence isn't good enough, so we don't need to resolve that question. [00:22:46] Speaker 04: And second, the Supreme Court relied on the Matthews case, which rejected, it did involve an animus claim below by the district court, and nonetheless applied the rational basis review in Matthews, and then that was again cited as favorable authority in Hawaii, and in any case remains good law of the Supreme Court. [00:23:14] Speaker 04: Thank you, Your Honors. [00:23:26] Speaker 01: Good morning, Your Honors. [00:23:27] Speaker 01: Ahilan Arlanandam from the UCLA Center for Immigration Law and Policy for plaintiff National TBS Alliance and the individual plaintiffs. [00:23:34] Speaker 01: I'm certainly prepared to talk about jurisdiction and also appellate jurisdiction, but I feel obligated to begin by correcting the statements that were just made about the context of the Secretary's statements of animus, the judgment those I was talking about. [00:23:49] Speaker 01: The vacatur happens three days after she comes into office, and the next day she goes on Fox News to give an exclusive interview, and she says she calls the Venezuelan refugee community as a whole dirtbags. [00:24:07] Speaker 01: Three days after that, she issues the termination. [00:24:10] Speaker 01: And that's an interview where she's explaining to the public the reasons for the decision that just happened. [00:24:15] Speaker 01: If you look at the context, this is docket 67-1. [00:24:18] Speaker 01: You can see we have a chart that lays this out. [00:24:20] Speaker 01: It's very clear that she's talking about that decision, explaining it. [00:24:24] Speaker 01: And this is what she says. [00:24:26] Speaker 01: Three days later, the termination happens. [00:24:28] Speaker 01: Not a very long time, Your Honor. [00:24:30] Speaker 01: And she goes again on Meet the Press to talk about this. [00:24:32] Speaker 01: And she says, I'm quoting now, the TPP program has been abused. [00:24:37] Speaker 01: And then she talks about the connections to gang activity. [00:24:41] Speaker 01: And then she says, remember, Venezuela purposely emptied prisons and mental health facilities and sent them to the US. [00:24:49] Speaker 01: So we are ending that extension of that program. [00:24:53] Speaker 01: So it's the justification given to the public for this decision the day after the decision was made. [00:25:00] Speaker 01: And what the district court found, based on a mountain of evidence that we presented uncontested, is that there is a fact... Their point is we shouldn't consider that. [00:25:08] Speaker 02: Their point that she wasn't in office, I think, at the time. [00:25:12] Speaker 01: Yeah, that's wrong, Your Honor. [00:25:14] Speaker 01: This is after she's made the decision. [00:25:16] Speaker 01: It's the day after she made the termination decision when she went on TV to explain it. [00:25:22] Speaker 01: And that's why they keep saying, remote in time, and I don't know what they're talking about. [00:25:25] Speaker 01: There are three statements. [00:25:26] Speaker 01: There's these two. [00:25:27] Speaker 01: The other one, which is also a very clear expression of animus, happens in her congressional testimony. [00:25:34] Speaker 01: before she's confirmed, but it's 10 days before she's confirmed. [00:25:38] Speaker 01: And she's talking about the extension of TPS for Venezuela. [00:25:42] Speaker 01: And she says the extension of TPS for these 600,000 people, Venezuelans, is alarming because, and then she talks about this gang activity in Colorado that may be harming people. [00:25:54] Speaker 01: You know, what the district court found, undisputed in the record, is that there's no evidence that any TPS holders were in Colorado. [00:26:01] Speaker 01: The Colorado issue itself has been debunked. [00:26:03] Speaker 01: There's just a few incidents we're talking about and this is why the district court found that this is the classic example of racism. [00:26:11] Speaker 01: It's taking a negative stereotype about a small number of people and generalizing it across the entire community. [00:26:18] Speaker 01: And so to claim that this is remote in time or that these statements are unconnected to the actual performance of the duties is just completely false. [00:26:27] Speaker 03: Mr. Aldon is the [00:26:30] Speaker 03: Do we have to reach the equal protection issues if we rule in your favor on either the APA claims? [00:26:36] Speaker 01: No, absolutely not. [00:26:37] Speaker 01: Your Honor, I'm happy to flip back over and start talking about it. [00:26:39] Speaker 03: I wonder whether you have any more information than your friend did with respect to the withdrawal authority, so at least as to the second claim where we're looking to see whether there's any other options to address with the agency's policy concerns. [00:26:54] Speaker 03: Do you also agree that there is individual withdrawal authority for anyone the Secretary determines, in fact, is now inadmissible? [00:27:06] Speaker 01: Yes, Your Honor, that authority is clearly in the statute to withdraw TPS on an individualized basis if there's a finding [00:27:13] Speaker 01: that the person, either there's a national security threat or they've committed even two misdemeanors or a single felony. [00:27:19] Speaker 03: Are you aware of that authority being exercised at all by the administration? [00:27:24] Speaker 01: In a couple of cases, Your Honor. [00:27:25] Speaker 01: So I know in some of the cases that came out of the AEA, the Alien Enemies Act invocation and there were detentions of people, I litigated a couple of them. [00:27:33] Speaker 01: The ones I know about is like two or three cases. [00:27:36] Speaker 03: But with respect to beneficiaries of the Venezuela TPS. [00:27:39] Speaker 01: Yes, Your Honor. [00:27:40] Speaker 03: So that authority is there and can be used. [00:27:42] Speaker 01: It is, Your Honor, and I think this speaks also to the point, and I will talk about the APA claim, but just, you know, sort of connecting the dots here. [00:27:48] Speaker 01: The statute allows for individualized determinations that someone presents a national security threat or has engaged in criminal activity. [00:27:58] Speaker 01: It quickly renders them ineligible, because as I said, a single felony or two misdemeanors renders you ineligible for TPS. [00:28:05] Speaker 01: And that makes sense. [00:28:06] Speaker 01: If there's an individual person who has engaged in activity that's not criminal or not protected security of the United States, then there can be an individualized withdrawal. [00:28:17] Speaker 01: It's very different to do it for 600,000 people. [00:28:20] Speaker 02: Can you address the APA claim arguing that what was done here exceeded the authority of the Secretary? [00:28:27] Speaker 01: Yes, Your Honor. [00:28:28] Speaker 01: So should I start with the jurisdictional aspect of that? [00:28:32] Speaker 01: So now they seem to be arguing that there is sort of an implicit beyond the pale exception. [00:28:38] Speaker 01: If there is such an exception, [00:28:40] Speaker 01: on their own account, I would argue that we fit it. [00:28:43] Speaker 01: Because as Your Honor said, in the 35-year history of the TPS statute, there has never before been a vacatur of a TPS extension. [00:28:55] Speaker 01: And also, you were asking about the statutory authority that this appears to violate. [00:29:01] Speaker 01: If you look at subsection B3B of the statute, it clearly states that a termination shall not be effective [00:29:10] Speaker 01: earlier then, either 60 days before the notice or if later, the expiration of the most recent previous extension under subparagraph C. So what the statute makes clear is that once an extension has been granted, it has to last for the whole time of the extension. [00:29:27] Speaker 00: Well, your opposing counsel makes the argument that the administration, a new administration has the right to come in and change the policies of the prior administration. [00:29:37] Speaker 00: How does that apply here? [00:29:40] Speaker 01: I think whether or not an agency has such authority is always a product of the statutory framework itself. [00:29:47] Speaker 01: Agencies aren't given authority by some magical common law. [00:29:52] Speaker 01: All agencies are creatures of statute, magical common law in this context. [00:29:56] Speaker 01: They're creatures of statute, and the case law is very clear about this. [00:30:00] Speaker 01: So you have to look at the statutory scheme under China Unicom, under Gorbach v. Reno, and similar Supreme Court cases. [00:30:06] Speaker 02: Well, they argue that sometimes there are these mistakes that are made within the agencies, and that you have conceded that if they have that authority, why wouldn't they have this particular authority? [00:30:16] Speaker 01: Yes, the distinction between clerical errors or ministerial errors and policy preferences [00:30:24] Speaker 01: is very long-standing in the APA law. [00:30:26] Speaker 01: It goes all the way back to American trucking in 1958 and has been repeatedly recognized. [00:30:31] Speaker 01: So on the one hand, even if there's no other rescission or vacature or revocation authority, there's authority to correct typos. [00:30:40] Speaker 01: You cite the wrong provision. [00:30:42] Speaker 01: You put the wrong date. [00:30:43] Speaker 01: And it's a factual question whether such a mistake has occurred. [00:30:46] Speaker 01: And that can be litigated. [00:30:47] Speaker 01: That's always available because mistakes happen. [00:30:49] Speaker 01: And of course, agencies to function have to be able to correct accidents. [00:30:53] Speaker 01: on the other end of the spectrum is policy disagreement, exactly what Judge Wardlaw was mentioning. [00:30:57] Speaker 01: They say, oh, well, we don't like what they did. [00:30:59] Speaker 01: We want to do it differently. [00:31:01] Speaker 01: And that is not always given. [00:31:04] Speaker 01: Whether or not that authority exists or not is a function of the statutory scheme. [00:31:07] Speaker 01: And this is a scheme that was designed to give stability to some amount of certainty for refugees in the face of the pre-existing regime, which allowed entirely unreviewable discretion. [00:31:20] Speaker 03: And so when he says- [00:31:23] Speaker 03: In these proceedings or elsewhere, and I asked your friend about this too, any kind of legal errors or APA irregularities that have been assigned to Secretary Mayorkas's decision? [00:31:36] Speaker 03: There's been a lot of discussion about, there's this question about, well maybe they didn't line up or anything, but has there been any allegation that that determination was [00:31:47] Speaker 03: Illegal, contrary to law. [00:31:49] Speaker 01: No, Your Honor, and I want to talk about that 2123 consolidation issue in a moment, but to answer your question, no. [00:31:55] Speaker 01: They sort of gesture at it, it might be illegal, but they don't just come out and say that determination was legal error. [00:32:01] Speaker 01: And of course, if they did, then that would be reviewable, you know, it would be a legal conclusion of the agency that would itself be reviewable under very long-standing doctrine, just like statutory authority claims are, but they don't say that. [00:32:12] Speaker 01: The other thing I'll just say quickly, since we're on the subject of that consolidation, Your Honor, that the Secretary's conclusion that there might be something unlawful about grouping together the 21 and 23 cohorts reflects a very basic misunderstanding about how TPS works. [00:32:30] Speaker 01: Of course, you can have [00:32:32] Speaker 01: designations that come into place at different periods of time. [00:32:36] Speaker 01: But the designation is for a single country. [00:32:38] Speaker 01: Venezuela was designated. [00:32:40] Speaker 01: And to qualify for TPS under the 2023 designation, you have to have been continuously present in the country and also residing here on a particular date in 2023. [00:32:53] Speaker 01: And it was July 31, 2023 and October 2023. [00:32:57] Speaker 01: Now, the people in the 21 cohort, well, they had to be in the U.S. [00:33:01] Speaker 01: and continuously residing since some date in 21. [00:33:04] Speaker 01: I think it was March of 2021. [00:33:05] Speaker 00: So they're the same group of people. [00:33:07] Speaker 01: Yes. [00:33:08] Speaker 01: So by definition, everybody who is eligible under 21 is also eligible under 23, because if you've been here since 21, you've necessarily been here since 23. [00:33:16] Speaker 01: You can't have left. [00:33:17] Speaker 01: And so this basic misunderstanding of the secretary about how the TPS statute works is highly relevant to the APA question. [00:33:26] Speaker 01: When he says, oh, well, maybe there were some reasons that were unlawful, but there were other reasons that were OK and were disregarding them, that's not how APA doctrine works. [00:33:34] Speaker 01: Under SCCV chainery, you look at the reasons that the agency actually gave. [00:33:39] Speaker 01: And if there are some reasons that are unlawful, then you reverse it. [00:33:44] Speaker 01: That's the sort of basic doctrine. [00:33:46] Speaker 01: Even the other reason that the secretary gave, and so I realize we're now on the second APA claim. [00:33:51] Speaker 01: We're talking about the second APA claim, right? [00:33:53] Speaker 01: The other reason that the secretary gave, which was that there may have been confusion caused by the consolidation of registration processes, the district court found is a factual matter. [00:34:04] Speaker 01: And this is excerpts of record 56 to 60. [00:34:07] Speaker 01: There's four pages on this claim. [00:34:09] Speaker 01: The district court found is a factual matter that that rationale was pretextual. [00:34:15] Speaker 01: And if you look, and now we've got more administrative records, so this will, I assume, be coming here in some months or something, but there's not a drop of evidence that there was confusion caused by this. [00:34:25] Speaker 01: And it makes no sense, because two tracks is more confusing than one. [00:34:29] Speaker 03: Why doesn't that cross the line at least, again, we'll just sketch the line out with respect to Ramos, if that's a line. [00:34:38] Speaker 03: Why wouldn't that cross the line that Ramos drew? [00:34:41] Speaker 01: Yeah. [00:34:42] Speaker 01: If that were about country conditions, if we were making that kind of claim about country conditions, it might well be on the other side of the vacated panel majority line in Ramos. [00:34:53] Speaker 01: But that argument concerns the registration processes and the consolidation of registration processes. [00:35:01] Speaker 01: That's what we're saying, that the reasons that we're given as to registration are not correct. [00:35:06] Speaker 01: And registration is not addressed in subsection B [00:35:11] Speaker 01: of the TPS statute. [00:35:12] Speaker 01: Subsection B is all about the rules for designation, extension, or termination. [00:35:17] Speaker 01: And then subsection C is about how the agency then provides the benefit to people once it's given a TPS extension. [00:35:25] Speaker 01: So that's about who's eligible, what the registration processes are. [00:35:29] Speaker 01: You'll see registration is specifically there in subsection C. And that matters, Your Honor, because the stripping provision is only with respect to claims under this subsection, which is subsection B. [00:35:40] Speaker 01: It bars review of any determination as to a designation, extension, or termination with respect to this, or I've got the word slightly wrong, but under this subsection. [00:35:50] Speaker 01: And that is subsection B. So claims that have to do with country conditions, like asylum cases, that you all [00:35:56] Speaker 01: here all the time, right? [00:35:57] Speaker 01: We can't come here and say, oh, Venezuela is still oppressive. [00:36:01] Speaker 01: Venezuela is still in massive economic crisis and still causing, it's still not safe to accept the return of its nationals. [00:36:09] Speaker 01: Our clients would very much like us to make that claim. [00:36:11] Speaker 01: It's undoubtedly true, but we cannot make that claim because that claim is barred. [00:36:14] Speaker 01: But what's not barred is a claim that the reasons that they gave having to do with registration [00:36:21] Speaker 01: are arbitrary and capricious or that they failed to consider alternatives under regions. [00:36:26] Speaker 01: The other thing is if this is really true that there was some confusion, which there is not, but if that were actually true, then they could just deconsolidate the registration processes and make the 21 people do 21 and give the 23 people a different date. [00:36:37] Speaker 01: But of course they didn't do that. [00:36:38] Speaker 01: It was just a pretext to get rid of the entire [00:36:40] Speaker 02: What about their argument that they just made today about, oh, well, you know, the Supreme Court just, you know, lickety-split, stayed the order. [00:36:49] Speaker 02: We should just put our hands down and say, you know, reverse. [00:36:53] Speaker 01: Yeah, I have a few thoughts on that, Your Honor. [00:36:56] Speaker 01: The first is that [00:36:59] Speaker 01: that the order itself says that it will expire upon somebody seeking cert or if they grant it, grant it from an appeal of this or the appeal that we're arguing right now. [00:37:13] Speaker 01: So if the court thought that there was no way to affirm the district court, [00:37:18] Speaker 01: then this whole proceeding would be a sham and make no sense. [00:37:21] Speaker 01: So that obviously can't be what they contemplated. [00:37:22] Speaker 01: What they contemplated is the case will go back up if either side seeks cert from whatever this court does now. [00:37:31] Speaker 01: And that's the first thought. [00:37:33] Speaker 01: The second thought is, more generally, it's a system of precedent. [00:37:37] Speaker 01: And they have said again and again and again that their shadow docket orders are not [00:37:43] Speaker 01: rulings on the merits, and they're not precedent. [00:37:46] Speaker 01: And so I don't think that it's proper judicial decision-making with respect. [00:37:54] Speaker 01: It's not for me to say. [00:37:55] Speaker 01: But my intuition, my feeling about this subject is, and it makes sense, I think, that you have to only follow law. [00:38:02] Speaker 01: And there's no law that's made in the order. [00:38:04] Speaker 01: So there's no way that you can divine a legal rule out of these two paragraphs. [00:38:07] Speaker 00: So how do you interpret what the last paragraph were [00:38:11] Speaker 00: It says this order is without prejudice to be challenged. [00:38:14] Speaker 00: The secretary now has February 3, 2025 vaguer notice insofar as it purports to invalidate these various things issued with October 2 expiration dates. [00:38:25] Speaker 01: Thank you. [00:38:26] Speaker 01: That was the third thing I was going to say actually. [00:38:27] Speaker 01: So the second paragraph of the order suggests that one might be able to bring a claim to protect people who have already had documents issued. [00:38:36] Speaker 01: under the January 17th extension and we've done that and the court ruled in our favor so there's a small number of TPS holders now. [00:38:45] Speaker 00: These are individual claims. [00:38:47] Speaker 01: No, we did it in this case. [00:38:50] Speaker 01: We said, and the district court agreed, that all the people, we don't know how many, it's a small number of people, but all the people who did get documents in the January 17th extension can keep their jobs. [00:39:02] Speaker 01: And depending on what document they got, a very small number of them do have protection from detention and deportation. [00:39:08] Speaker 01: The only reason I bring that up, as your question suggests, that suggests they didn't think there was a subject matter defect, because if there were a subject matter defect, then presumably this claim, which we now have a separate order, which is not before this Court now, but a separate order protecting people from, that too is a challenge to [00:39:29] Speaker 01: On their view of determination, if determination is everything related to TPS and not only the things that actually the secretary determines inside section B, which is our position, but if their view is correct, then that claim would also be barred in that second paragraph. [00:39:43] Speaker 01: The claims in the second paragraph would also be barred. [00:39:46] Speaker 01: So I don't think that if we're playing this game of reading tea leaves out of two paragraphs where there's no law in it, I wouldn't think that the answer would be that we should lose on subject matter jurisdiction because of that second paragraph. [00:39:57] Speaker 03: Could I take you to the framework for the equal protection challenge? [00:40:04] Speaker 03: We've referred to Arlington Heights for some of these pieces. [00:40:09] Speaker 03: Should we draw any distinction between, so the DACA case, which was Arlington Heights, dealt with a defined population of people. [00:40:21] Speaker 03: The Hawaii case, I think like this case, deals with the designation of a country. [00:40:27] Speaker 03: And so I understand that animus is disqualifying whatever standard, and animus is the one irrational basis in constitutional law, but why doesn't that suggest that where we're dealing with the government action, where the classification is really a country as opposed to people, rational basis is where we start. [00:40:48] Speaker 01: I think the relevant distinction that Hawaii drew is not whether or not the distinction is on a country-by-country basis. [00:40:58] Speaker 01: I don't think you'll find that in the rationale given for the opinion for why it's applying deferential or facially legitimate. [00:41:04] Speaker 03: I looked for it when I was trying to understand it, but you're right. [00:41:06] Speaker 01: I think what they're saying, they say a few things, but the one which they say which is most sort of canonical immigration law, [00:41:11] Speaker 01: is that the claims are on behalf of people who are abroad. [00:41:14] Speaker 03: Yeah, but the problem there is that it not only doesn't make sense of Matthews, but it also doesn't make sense of all of the rest of rational basis review under Cleburne and Romer and other cases, which of course we will apply rational basis. [00:41:28] Speaker 01: to citizens who are bringing equal production claims. [00:41:43] Speaker 01: are not these sort of historically problematic classifications like racism and race and gender. [00:41:50] Speaker 01: They also use it in selective enforcement claims. [00:41:52] Speaker 01: Those might be for people who are in the country, so that seems to, it's not the same as what they're doing in Trump v. Hawaii, but they have used that, the Supreme Court hasn't, but they've sort of blessed the Second Circuit doing that in a case called Rajavi Mukasey. [00:42:05] Speaker 01: So they treat somebody who's already lost the right to live here, but they're saying, oh, but I'm being targeted because of race. [00:42:10] Speaker 01: They treat that kind of like the person who's already abroad. [00:42:13] Speaker 01: So it's ad hoc. [00:42:14] Speaker 01: I concede it's ad hoc. [00:42:16] Speaker 01: But you will not find a case involving people who are in the country, and particularly lawfully in the country, like our population, but even people who are not lawfully in the country, people who are in the country where the Supreme Court has set us to a claim about racial animus, [00:42:33] Speaker 01: that what is to be applied is a very deferential Trump v. Hawaii standard. [00:42:37] Speaker 01: In fact, I don't believe you'll find a circuit course that says it. [00:42:40] Speaker 01: We cite the Second Circuit's opinion in United States v. Susquehlanda. [00:42:44] Speaker 01: It's a 1328. [00:42:45] Speaker 03: But I guess on the other side, can we find a case, a Supreme Court case, maybe one of our cases, but let's start with a Supreme Court in which they've assigned animus to the executive [00:43:02] Speaker 01: Invalidated executive action or agency action based on such animus and Well, they assume that the standard of review adopted by Regents You know judge award laws a decision for this court. [00:43:15] Speaker 01: They assume that Arlington Heights applies in that context That's one another one. [00:43:19] Speaker 03: I would say that but they rejected the the assertion of animus [00:43:22] Speaker 01: On the merits. [00:43:23] Speaker 01: On the merits they rejected because they said the statements are not close in time, they're not about DACA, which is absolutely the opposite of what we have here. [00:43:29] Speaker 01: The other one I would say, look at the vacated panel decision in Ramos because they considered the same question and also decide that Arlington Heights applies. [00:43:38] Speaker 01: And then the third one I would say, I agree, this is not a Supreme Court case, but that Second Circuit case, United States v. Susquehlanda, [00:43:43] Speaker 01: which is a 1326 case. [00:43:45] Speaker 01: It's a challenge to the criminal illegal reentry statute on the ground that its origins are motivated by racism. [00:43:54] Speaker 01: And that court considers the government's argument, they made the same argument there, they're making here, that because it's sort of immigration policy, you have to apply, just generally all immigration policy, you have to apply extremely deferential review. [00:44:06] Speaker 01: And the court rejects that, and it collects a whole load of cases from across the circuits, various contexts, the public charge challenge, the rescission of the public charge program that happened in the first Trump administration, and various other contexts. [00:44:19] Speaker 01: And they say, look, it is not the law that just because it's immigration, we apply some deeply watered down form of rational basis review. [00:44:28] Speaker 01: So I think that's the authority that I would cite for that context. [00:44:32] Speaker 01: I don't think that, yeah, I agree that there's not a Supreme Court case that squarely decides that question one way or the other. [00:44:38] Speaker 01: I see my time. [00:44:39] Speaker 00: I just have, I just, how, how does your, how does, what position do you take with respect how the, to how the secretary could have lawfully terminated [00:44:56] Speaker 00: the TPS status, because I understand your argument. [00:45:01] Speaker 00: You're saying that allowing the vacateur would actually contravene the statute because of these extension periods and termination notice dates and all of that. [00:45:15] Speaker 00: So what do you think the Secretary should have done? [00:45:19] Speaker 01: I mean, once the designation is in effect, the TPS statute is very clear. [00:45:24] Speaker 01: It lasts until the end of the extension. [00:45:25] Speaker 01: So in summer of 2026, that's when it comes up. [00:45:31] Speaker 01: And I know in this hyperpartisan era that feels like somehow unfair. [00:45:35] Speaker 01: I suppose to the party that loses the election or that wins the election. [00:45:39] Speaker 01: But Congress wrote the statute not imagining that administrations should get to play a political hot button with the lives of so many refugees. [00:45:50] Speaker 01: That's not the statute that Congress wrote. [00:45:52] Speaker 01: They wrote it to create stability. [00:45:54] Speaker 01: They wrote it against the backdrop. [00:45:55] Speaker 01: of cases like the case they cite, which is over the hotel restaurant workers, DC Circuit, opinion which is overruled by the TPS statute. [00:46:02] Speaker 01: The TPS statute comes into place and says, it says we're designating El Salvador. [00:46:07] Speaker 01: Congress designated El Salvador in 1990 by statute, directly overruled that case, but beyond that they created a regime where there would be some amount of predictability and that predictability was meant to apply even during times of political change in the process. [00:46:24] Speaker 01: Any further questions? [00:46:26] Speaker 01: I don't know if the court wants to talk about appellate jurisdiction at all. [00:46:29] Speaker 01: Perhaps not. [00:46:29] Speaker 00: Well, we do know we have a case that has priority on us on the question of appellate jurisdiction. [00:46:40] Speaker 01: May I maybe just say one very brief thing about that? [00:46:42] Speaker 00: OK. [00:46:42] Speaker 01: In that case, Your Honor, I would just note that in our case, this order just postpones two decisions. [00:46:49] Speaker 01: That's all it does and reverts us to the last [00:46:52] Speaker 01: un-contested status between the parties, which is the January 17 extension. [00:46:56] Speaker 01: That's all we do. [00:46:58] Speaker 01: It doesn't direct the agency to do anything at all. [00:47:00] Speaker 01: It just postpones these two prior ones. [00:47:02] Speaker 03: I think this case is a 705 case too. [00:47:05] Speaker 03: Is there any reason we should distinguish between the 705 stays? [00:47:09] Speaker 01: I think so actually, because I think it depends on what the underlying administrative process is at the moment when that change happens. [00:47:16] Speaker 01: So like in that case, and they may well be right as well, I don't want to sort of throw them under the bus or anything, but you know in that case the MPP program has stopped and I think that at least the parties argue about whether the effect of that is to require [00:47:31] Speaker 01: required them to go back to a position that existed a number of years before. [00:47:35] Speaker 01: Here what we're talking about was a decision that required the agency to just keep TPS running as it was supposed to be running on January 17th. [00:47:47] Speaker 01: And then it's the other thing I won't take I'm taking too much of your time that the only the last thing I'll say about that is the district court had a long discussion from page 17 to 22 of the excerpts of record about why this order was not injunctive because it was that issue for 1252 f you know for the other jurisdictional but depending on the length of the proceedings can it just end up being dispositive given that we're talking about temporary relief anyway [00:48:11] Speaker 01: Here summary judgment is cut. [00:48:13] Speaker 01: Maybe this is the answer your question The summary judgment hearing on the APA claims is August 1st does that answer your question it gets there Yeah, so August 1st, so I think there will be rulings very soon They're hearing anyway very very soon on the APA claim Thank you your honors. [00:48:29] Speaker 00: Thank you counsel. [00:48:29] Speaker 00: I'll give you two minutes to respond [00:48:34] Speaker 04: Thank you, Your Honors. [00:48:36] Speaker 04: Four quick points. [00:48:37] Speaker 04: First, they can see that the agency has authority to correct ministerial errors under this TPS statute, and they identify no textual basis that would allow this court to draw a distinction between ministerial errors and policy-based errors. [00:48:53] Speaker 03: But, Mr. Anzion, you say policy-based errors, and I'm not sure I understood your answer to this question. [00:49:01] Speaker 03: Does the Secretary [00:49:06] Speaker 03: Is there anything that should suggest to us that the Secretary believes that Secretary Mayorkas's order extension was unlawful? [00:49:14] Speaker 04: Yes, your honor. [00:49:15] Speaker 03: Where is that in the record, and what is that basis? [00:49:18] Speaker 04: It is in the vacator decision. [00:49:20] Speaker 04: She specifically said that his prior order that, quote, the explanation for operational impacts was thin and inadequately developed. [00:49:29] Speaker 04: That would render it unlawful. [00:49:31] Speaker 04: She also pointed to the fact that it would extend designations by up to 13 months. [00:49:36] Speaker 04: That is not a lawful period under the statute. [00:49:38] Speaker 04: The statute permits extensions for 6, 12, or 18 months. [00:49:41] Speaker 04: 13 months is not an allowable choice. [00:49:43] Speaker 04: Those are both legal errors that were identified in the vacator order. [00:49:48] Speaker 04: And certainly as to the rationale that the explanation in the prior one was thin and inadequately developed is completely untouched by both the district courts and plaintiffs. [00:50:00] Speaker 04: And that alone is a sufficient basis to uphold the vacator decision under the APA. [00:50:05] Speaker 02: Actually, if you could answer one of the questions. [00:50:08] Speaker 02: I understood your answer to my question about the language that was used. [00:50:15] Speaker 02: You were suggesting that that was some time prior to the Secretary entering office. [00:50:24] Speaker 02: It doesn't seem like it was. [00:50:25] Speaker 02: Was that right? [00:50:26] Speaker 02: Did I understand your answer right? [00:50:28] Speaker 04: I don't believe so, although it's also possible that I misspoke, Your Honor. [00:50:31] Speaker 04: I was saying that the majority of these statements were made when she was out of office. [00:50:36] Speaker 02: Because on January the 29th, that's when she made the dirtbag statement, is that right? [00:50:42] Speaker 04: That's roughly my understanding, Your Honor. [00:50:44] Speaker 02: That was after she was the secretary. [00:50:46] Speaker 04: Yes, that isolated statement was made when she was secretary and was referring specifically to the context of TDA gang members. [00:50:53] Speaker 04: Those are not warm and cuddly people. [00:50:55] Speaker 04: The secretary is allowed to express disapproval of gangs that, you know, commit kidnapping, terror, human trafficking with the United States. [00:51:04] Speaker 04: She might have used colorful language, but that is not a violation of the evil... She's about to meet the press interview. [00:51:08] Speaker 00: I'm sorry, yeah. [00:51:08] Speaker 00: To meet the press interview after she did the vacatur. [00:51:12] Speaker 02: Well, I'm sorry to interrupt, but I want to come back to your statement, because that's actually incorrect. [00:51:17] Speaker 02: Her statement was, quote, listen, I was in New York City yesterday, and the people of this country, of this country, Venezuela, want these dirt bags out. [00:51:34] Speaker 04: Your Honor, the context around that discussion was previously referring to TDA members. [00:51:39] Speaker 04: That is not that specific sentence, but the context surrounding that discussion was about TDA members, which is an extraordinarily violent and dangerous gang operating with the United States. [00:51:50] Speaker 04: I also want to correct that it is not in fact a myth. [00:51:52] Speaker 04: The TDA took over apartment complexes in Colorado. [00:51:56] Speaker 04: There is a dispute as to how many complexes that was, but it is absolutely not a myth, and I will admit that's not specifically in the record here either way, but like I will tell you from other cases, that is not a myth. [00:52:07] Speaker 04: That is very, very true. [00:52:08] Speaker 03: Did the government move to withdraw their TPS status if those people had TPS status? [00:52:15] Speaker 04: Absolutely, Your Honor, but again, that does not supplant Congress's mandate that the Secretary shall. [00:52:21] Speaker 03: You're saying absolutely not. [00:52:22] Speaker 03: It's an option that they actually acted on that. [00:52:25] Speaker 03: They exercised the authority that they already have under the statute to address individual cases of criminal conduct by beneficiaries of TPS. [00:52:34] Speaker 04: That tool continues to exist simultaneously with the secretary's both authority and simultaneous mandate that she must terminate TPS status when the conditions for it no longer apply. [00:52:46] Speaker 02: And counsel, to be fair, reading the entire paragraph of her statement, it does appear she is referring to TDA. [00:52:56] Speaker 04: Thank you, Your Honor, and that's certainly our point as to that particular statement. [00:53:01] Speaker 04: And just to be clear as to the timing them, I believe it's the case with the President's statements that those were all out of office or prior term. [00:53:09] Speaker 04: It's the case with Secretary Noem's that the majority or most of those statements were when she was not in office. [00:53:16] Speaker 04: I will acknowledge, and if I said something contrary, I apologize that the [00:53:20] Speaker 04: that that particular comment was when she was in office. [00:53:23] Speaker 04: Unless they're singularly saying that invalidates an entire action, that's the context in which we are before you. [00:53:34] Speaker 04: If I may just very quickly, they have offered two bases for why rational basis review doesn't apply, and we think that they're rejected by both case laws. [00:53:45] Speaker 04: They say that it doesn't apply to people [00:53:47] Speaker 04: that are inside the U.S., but that is squarely contradicted by the Matthews case, which the Supreme Court favorably cited. [00:53:54] Speaker 04: They say it doesn't apply where there's animus, but that was also, the district court had found animus in Matthews, and the Supreme Court did not modify the rational basis standard to account for it. [00:54:05] Speaker 00: And then... I just, do you agree that [00:54:10] Speaker 00: We can affirm the district court order if we just reach the first APA claim and decide that the statute does not authorize the bagator because of the monthly provisions and all of that. [00:54:30] Speaker 00: Do you just agree with that simple proposition? [00:54:33] Speaker 04: Partially, Your Honor, because there's the antecedent question, of course, as to whether or not the jurisdictional bar applies. [00:54:38] Speaker 04: But assuming that you had jurisdiction, and assuming that you thought that they prevailed on an APA arbitrary and capricious challenge, notwithstanding our arguments, that would be a singular basis for affirmance. [00:54:50] Speaker 04: Because that is a sufficient... I'm saying that. [00:54:52] Speaker 00: I'm saying that she exceeded her. [00:54:54] Speaker 00: If we just decided she exceeded her statutory authority. [00:54:58] Speaker 04: If they were to prevail on that particular APA claim and this court had jurisdiction to do so, that would be a basis that could be justified the district court's order. [00:55:09] Speaker 04: We haven't talked about scope either, so I think you would still have the scope questions, both because of CASA and 1252F, and this relief is over broad. [00:55:18] Speaker 00: Are you contesting our appellate jurisdiction at all? [00:55:22] Speaker 04: I mean, not in the slightest, Your Honor. [00:55:24] Speaker 04: And in fact, this is something that, you know, went, if you look at their answering brief, they didn't think so. [00:55:30] Speaker 04: The Supreme Court also seemingly didn't think so. [00:55:32] Speaker 04: And that's not a court that's insensitive to jurisdictional obstacles. [00:55:35] Speaker 04: They're, in fact, hyper attentive to them. [00:55:38] Speaker 04: And I think there's a tell in their appellate jurisdiction arguments, too. [00:55:42] Speaker 04: If you look at footnote two on page 13, they say, just as the Supreme Court might have had jurisdiction over an original application, [00:55:50] Speaker 04: under rule 23, so too might this court have jurisdiction to entertain a motion for postponement under rule 705 if such a motion were denied in the district court. [00:55:59] Speaker 04: So they're not even, not only are they not saying that 705 states aren't potentially appealable, they're [00:56:05] Speaker 04: carving out a potential asymmetrical rule that they could benefit from. [00:56:09] Speaker 04: If they don't get a 705 stay, that apparently is appealable, but when you have a 705 stay that operates against the government in a way that's indistinguishable from the preliminary injunction, which was specifically based, its issuance was based on analysis of the winter preliminary injunction features. [00:56:27] Speaker 04: This stay walks, talks, and quacks like an injunction. [00:56:32] Speaker 03: And so I wonder just if I could maybe have the benefit of your big picture view in the department. [00:56:39] Speaker 03: So you raise the CASA question with respect to the universal relief here. [00:56:48] Speaker 03: What difference is there between the 706 vacator [00:56:53] Speaker 03: uh... issue that they saved in footnote ten of that decision and the seven oh five relief here why why why should we not view the supreme court is explicitly not having applied the rational of casa to this posture [00:57:09] Speaker 04: Your Honor, I think 705 differs from 706 in its language. [00:57:14] Speaker 04: 706 does have a shall in it, which may be relevant. [00:57:17] Speaker 04: But in particular, 705 makes clear that it is applying traditional equitable principles, or it specifically refers to preventing irreparable harm and maintaining the status quo. [00:57:27] Speaker 04: Those are quintessential preliminary injunction sort of considerations. [00:57:32] Speaker 04: CASA is based on traditional equitable principles, and no one disputes [00:57:36] Speaker 04: that whether or not to grant a Section 05 stay is governed by those same traditional equitable principles that we're controlling in CASA. [00:57:43] Speaker 04: And so for a Section 705 stay, and you know, the tell in particular is you're using the winter injunction factors to determine whether or not you should do it. [00:57:51] Speaker 04: There's no question that those winter injunction factors are based on traditional equitable principles. [00:57:56] Speaker 04: And CASA tells us that under traditional equitable principles, you cannot issue universal relief to nonparties. [00:58:02] Speaker 00: All right. [00:58:03] Speaker 00: Thank you, counsel. [00:58:04] Speaker 00: I gave you two minutes. [00:58:05] Speaker 00: You took seven and a half. [00:58:07] Speaker 04: I apologize, Your Honor. [00:58:08] Speaker 04: I hope at least some of that was useful. [00:58:10] Speaker 00: Yes. [00:58:10] Speaker 00: Thank you very much. [00:58:11] Speaker 00: Thank you, Your Honor. [00:58:13] Speaker 00: All right. [00:58:14] Speaker 00: National TPS Alliance versus Nome is submitted and this session of this court is adjourned for today. [00:58:25] Speaker 00: Thank you. [00:58:34] Speaker 00: This court for this session.