[00:00:00] Speaker 03:
Okay, great.

[00:00:04] Speaker 03:
If you're ready, counsel, and if you want to reserve time for rebuttal, please watch the clock.

[00:00:10] Speaker 05:
Thank you, your honor.

[00:00:11] Speaker 05:
I would like to reserve five minutes for rebuttal.

[00:00:13] Speaker 05:
May it please the court, Tiberius Davis, on behalf of defendants.

[00:00:17] Speaker 05:
In Trump versus Hawaii, the Supreme Court reversed this court and upheld a travel ban issued under 1182F because the statute provides broad discretion and deference to the president to suspend the entry of a class of aliens in the national interest.

[00:00:30] Speaker 05:
The president issued a similar proclamation here to suspend the entry of refugees because of the unprecedented surge of migration over the past four years.

[00:00:39] Speaker 05:
The president, despite that, the district court issued a sweeping universal injunction banning all, completely enjoining this proclamation despite the court's precedent in Trump versus Hawaii.

[00:00:55] Speaker 05:
A panel of this circuit stayed that decision and, after several clarifications, made clear that it did so because it was likely – the government was likely to succeed on the merits under Trump versus Hawaii.

[00:01:05] Speaker 05:
This panel should make the same conclusion.

[00:01:08] Speaker 05:
The district court and plaintiffs argue that the proclamation is unlawful for two primary reasons.

[00:01:13] Speaker 05:
One, they argue that it is in contrast and contrary to the Refugee Act of 1980, and second, because it is permanent, not temporary, suspension.

[00:01:22] Speaker 05:
Both are wrong.

[00:01:23] Speaker 05:
On the Refugee Act, Trump vs. Hawaii made clear and addressed this issue that the admission bar in 1182F sits on top of the INA and is an additional grant of inadmissibility.

[00:01:34] Speaker 05:
In fact, the Refugee Act itself acknowledges this.

[00:01:37] Speaker 05:
In subsection C3, as plaintiffs point out, Congress cross-references 1182 and the admissions bars there and excludes some of them from the refugee program, including the public charge.

[00:01:48] Speaker 05:
It notably does not exclude 1182F, so 1182F clearly still applies.

[00:01:54] Speaker 05:
And there's no conflict between the permanent procedures and processes laid out in the Refugee Act

[00:02:00] Speaker 05:
and the temporary suspension for a class of aliens in 1182.

[00:02:03] Speaker 05:
Those things work in harmony, and both of them exude deference to the executive.

[00:02:08] Speaker 05:
The Refugee Act allows the president to set an annual cap based on the national interest, which is the same basis and the same policy interest that the president must make for 1182F.

[00:02:18] Speaker 05:
And also, he's allowed to, in his discretion, enumerate what groups get the caps under the Refugee Act.

[00:02:24] Speaker 05:
So there's no conflict there, especially because the Refugee Act does not grant admission.

[00:02:28] Speaker 05:
It is still discretionary, and people can still be barred for admissions.

[00:02:32] Speaker 05:
This is also true for the follow-on in family admissions, which the statute itself says they get the same status, but they must be admissible.

[00:02:39] Speaker 03:
In Trump v. Hawaii, there was, I think, maybe a 12-page memorandum explaining the president's decision.

[00:02:44] Speaker 03:
Here, it's shorter.

[00:02:48] Speaker 03:
How much does most of the President say here to give deference to?

[00:02:53] Speaker 03:
I mean, is it enough just to a few sentences?

[00:02:56] Speaker 03:
What's the line that we need to draw here?

[00:02:59] Speaker 05:
Yes, Your Honor.

[00:02:59] Speaker 05:
I think it's basically just to make a facially valid reason for it.

[00:03:04] Speaker 05:
In Sale, which is another case for the United States, I believe it was the Clinton administration, had a proclamation that was one sentence long, and the court upheld that.

[00:03:11] Speaker 05:
So I think as long as it's facially valid reason under the Mandel and Hawaii framework,

[00:03:16] Speaker 05:
for the proclamation, which is the president more than did enough here, that suffices.

[00:03:20] Speaker 05:
There's been over 40 proclamations in the past, and none of them have been struck down because they didn't provide enough reasoning or enough facial validity.

[00:03:29] Speaker 05:
Sale is sort of the prime example, as that was one sentence.

[00:03:32] Speaker 05:
And so I think the president here made a finding that it was against the national interest because of the unprecedented surge of migration over the last four years and because of the burden that that placed on localities and on taxpayer funds.

[00:03:43] Speaker 05:
Now the district court and plaintiffs say that that basically makes it indefinite, but that's not the case.

[00:03:49] Speaker 05:
The president is actively trying to reduce the burdens of the massive immigration rule last four years by reducing the numbers of admissions, but also increasing enforcement on those who are already here.

[00:04:00] Speaker 05:
There is a point where that will lapse.

[00:04:02] Speaker 05:
But the Supreme Court made clear in Trump versus Hawaii that the president doesn't have to set a specific date or a specific timeline.

[00:04:10] Speaker 05:
There, all they did was say, as long as the vetting was met.

[00:04:13] Speaker 05:
Yes, your honor?

[00:04:16] Speaker 05:
There, it was about the vetting of foreign countries.

[00:04:20] Speaker 05:
And there was no bright line rule of when that vetting was met.

[00:04:23] Speaker 05:
That would still be up to the secretaries and the president to sort of determine whether those conditions were met.

[00:04:28] Speaker 05:
And some of those countries still have not met those vetting requirements.

[00:04:30] Speaker 05:
There's a new proclamation for similar reasons.

[00:04:33] Speaker 05:
So those have been years where people from those countries, because their vetting situations have not been met, are still suspended.

[00:04:39] Speaker 04:
If we were to agree with you as to the lawfulness of the executive order, does that resolve the entire case?

[00:04:44] Speaker 05:
I think it does, Your Honor.

[00:04:45] Speaker 05:
I think if we resolve the lawfulness of the executive order, then all of the sort of implementation follows along with that for the APA claim.

[00:04:53] Speaker 04:
There's no additional APA claims that are available here?

[00:04:56] Speaker 05:
I don't think so, Your Honor.

[00:04:57] Speaker 05:
I think they're all valid if they're implementations of the proclamation.

[00:05:00] Speaker 05:
And I think for the funding, it's perfectly within the authority of the Secretary of State and the President to cancel funding if there are no new people being admitted.

[00:05:09] Speaker 04:
And I think the statute allows for that.

[00:05:12] Speaker 04:
Now, the EO covers admission.

[00:05:16] Speaker 04:
It doesn't cover processing or application.

[00:05:19] Speaker 04:
And the Supreme Court for a long time has drawn a distinction between

[00:05:23] Speaker 04:
for example, the granting of visas and the granting of admission.

[00:05:26] Speaker 04:
So the question of admissibility is different from eligibility for admission.

[00:05:33] Speaker 04:
So the Refugee Act provides a very, very

[00:05:36] Speaker 04:
detailed set of instructions about how we designate refugees and how we ultimately admit them.

[00:05:44] Speaker 04:
So for example, you have, I think I'm using your statistics, but there's something like 128,000 people that have been classified as refugees.

[00:05:56] Speaker 04:
But under President Biden's prior determination for fiscal year 2025, only 125,000 of those could be admitted if all were to be admitted.

[00:06:06] Speaker 04:
So that means that there's a difference immediately.

[00:06:11] Speaker 04:
between those who are eligible to be refugees and those who are going to be admitted.

[00:06:16] Speaker 04:
The EO and the 1182F deals with entry or admissions only.

[00:06:23] Speaker 04:
It doesn't deal with applications or refugee status.

[00:06:27] Speaker 05:
I think that those two things, while distinct, are closely related.

[00:06:30] Speaker 05:
Because if you get the status for a visa, for example, the whole point of getting the visa or to get refugee status is to get admitted.

[00:06:37] Speaker 05:
And if you can't get admitted, there's not really much of a remedy there.

[00:06:41] Speaker 04:
The EO applies for how long?

[00:06:43] Speaker 05:
The EO applies until the president determines that the burden on the nation and localities from the unprecedented surge in migration over the last four years is.

[00:06:53] Speaker 04:
Will he have to reissue this every year?

[00:06:56] Speaker 05:
I don't believe he'll have to reissue it.

[00:06:57] Speaker 04:
But he does have a 90-day reporting requirement.

[00:07:00] Speaker 05:
Every 90 days.

[00:07:01] Speaker 04:
So he's going to review this every 90 days.

[00:07:03] Speaker 04:
Correct.

[00:07:04] Speaker 04:
Why wouldn't we continue to process refugees against the possibility that the president in 90 days will reauthorize it?

[00:07:13] Speaker 04:
And if the president has no intention of reauthorizing it, then why wouldn't we consider that to be a cancellation of the refugee program?

[00:07:21] Speaker 05:
Well, I think there are a lot of inefficiencies in continuing the processing if these people can't get admitted.

[00:07:25] Speaker 05:
Certain things like medical checks and background checks have to happen close in time to admittance.

[00:07:30] Speaker 05:
So if the Department of State is required to do those far ahead of time when they don't know that the suspension will end or not,

[00:07:37] Speaker 05:
That's just essentially wasted resources on both behalf of the refugees and the government.

[00:07:43] Speaker 05:
So I think it's well within the State Department's discretion, which carries out these sort of admissions and background checks to say, we're going to pause those in light of the proclamation and the suspension.

[00:07:51] Speaker 05:
And once that is lifted, then we can resume.

[00:07:54] Speaker 04:
The process for obtaining refugee status, the record seems to indicate, can take many, many years.

[00:08:00] Speaker 04:
There's stories of it taking three or four years.

[00:08:03] Speaker 04:
If we stop that process,

[00:08:05] Speaker 04:
Then we've got people that are now backed up another three years, don't we?

[00:08:09] Speaker 04:
So if you stop all processing right now, then once it is restarted, whether that's in this administration or a future administration, it's another three years out for the processing of these people.

[00:08:22] Speaker 04:
So why wouldn't we want these people to be processed now against the possibility that this administration or a future administration would resume the program?

[00:08:31] Speaker 05:
Well, I think each year it depends on what cap the president sets for who can get admitted and how they enumerate them.

[00:08:37] Speaker 05:
So the composition of who these refugees are is going to change every year and could still be subject to the suspension for some time.

[00:08:42] Speaker 05:
So it makes sense for the State Department to say, given the suspension, given that we're about to come up to a new cap under a new administration,

[00:08:48] Speaker 05:
to put a pause on that.

[00:08:49] Speaker 05:
And as you mentioned, there's about 128,000 people who already qualify who might meet that cap next year.

[00:08:55] Speaker 05:
And so processing more people that aren't going to be admitted for possibly years, either due to the cap or the suspension, is inefficient.

[00:09:02] Speaker 05:
And I think it's well within the State Department's discretion to say, we don't have to do that.

[00:09:06] Speaker 04:
The EO also admits of the possibility of case by case.

[00:09:09] Speaker 04:
So how do we do that if we're not processing people?

[00:09:11] Speaker 04:
How do we even know that whether we might want to admit somebody on a case by case basis?

[00:09:16] Speaker 05:
Well, as you mentioned, there are already people who have gone through the process and could be... But then we would only... the case by case is only for those who are currently in the process?

[00:09:23] Speaker 05:
I think it could be broader than that, and I think that there are individuals... But if it's going to be broader than that, how do we do that if we're not processing them?

[00:09:29] Speaker 05:
I think people can get exemptions if there is a case that has raised the Secretary of State and the Secretary of Homeland Security and the President, and then they can start the processing.

[00:09:36] Speaker 05:
So there's nothing to prevent them from then starting the processing if a case-by-case exemption has been given.

[00:09:41] Speaker 05:
And I also think this isn't a total termination or grant, because the president's already given exemptions to a couple groups.

[00:09:47] Speaker 05:
So this is an ongoing process.

[00:09:48] Speaker 05:
And again, every 90 days, which is much faster than the 180 days in Trump versus Hawaii, the president is getting a report from the Secretary of Homeland Security and State to reevaluate it.

[00:09:57] Speaker 05:
And he's actively taking steps to help fix the problem that caused the proclamation to be issued in the first place.

[00:10:04] Speaker 05:
Plaintiff say that while that seems indefinite, it's sort of up to the president to determine whether that's ever met or not.

[00:10:09] Speaker 05:
But the same thing could be said of Trump versus why, which was based on the vetting of in foreign countries.

[00:10:15] Speaker 05:
And there's not a bright line rule that a court could look at and say, OK, this country has met the vetting requirements, so you have to exempt them.

[00:10:20] Speaker 04:
Do we have arrangements with foreign countries to take refugees?

[00:10:24] Speaker 04:
I believe so.

[00:10:25] Speaker 04:
Okay, so if we were declaring people to be refugee status, even though we had set a cap of zero, there's still the possibility that other countries might be taking those folks as refugees.

[00:10:35] Speaker 04:
So why would we stop the processing?

[00:10:38] Speaker 05:
I think those other countries could take refugees if they wanted to, regardless of what we were doing.

[00:10:43] Speaker 04:
I think my question to you, which I thought you answered yes, maybe you answered too quickly, was don't we have arrangements with other countries that will take people that we have declared to be refugees?

[00:10:52] Speaker 05:
I'm not sure about the precise contours of those arrangements, but again, there are still people that they can take that are currently processed as refugees.

[00:10:59] Speaker 05:
And even if that's the case, I don't think that takes away from the fact that the State Department has discretion in this process.

[00:11:04] Speaker 05:
And for the various policy reasons that they've laid out, including the current suspension, they think it's an admission to... The State Department has discretion not to process people.

[00:11:16] Speaker 04:
Again, that's not the EO, because the EO only applies to entry.

[00:11:21] Speaker 05:
Right, but this is the implementation of it.

[00:11:23] Speaker 05:
And I do think that they do have discretion not to do some of the processing, especially given that some of these people have to do background checks, medical checks.

[00:11:31] Speaker 05:
They're very close in time to when they're admitted.

[00:11:35] Speaker 02:
The promise of your argument appears to be that this is, in fact, going to be a lasting bar on entry, on admission.

[00:11:43] Speaker 02:
And yet the argument started with your emphasis how this was temporary and could be changed.

[00:11:48] Speaker 02:
I mean, those are two different things.

[00:11:53] Speaker 05:
Your honor, I don't think there's a conflict there.

[00:11:55] Speaker 05:
We don't know when the proclamation will end.

[00:11:57] Speaker 05:
That's up to the president.

[00:11:58] Speaker 02:
Well, if we don't know when the proclamation will end, what's the justification for stopping the processing for people who, at least in theory, in six months, the door may be opened again, but since nobody has been processed, nobody will actually be standing in line?

[00:12:15] Speaker 02:
Well, that's a question that Judge Bybee posed, and I'm kind of still waiting for an answer.

[00:12:20] Speaker 05:
Well, Judge Clifton, I think there are already about 128,000 people who have been processed and they'll be waiting in line.

[00:12:25] Speaker 05:
And whatever the new cap is, that will probably, you know, I don't know what the cap will be, but that number is even higher than the Biden administration's cap.

[00:12:32] Speaker 05:
So there will be people in line who can be admitted.

[00:12:34] Speaker 05:
And once the suspension from the proclamation is lifted, new people can go through the process.

[00:12:38] Speaker 05:
And so they'll just get added to that queue of people.

[00:12:41] Speaker 02:
You just told us that some of this check has to be done close in time.

[00:12:45] Speaker 02:
Yes.

[00:12:45] Speaker 02:
And if processing has stopped and there's been no processing for six plus months, then will they satisfy that requirement?

[00:12:53] Speaker 05:
I assume that once the suspension is lifted, that sort of 128,000 people can then do those checks fairly fast.

[00:13:00] Speaker 05:
Again, they have to be close in time regardless.

[00:13:04] Speaker 02:
I'm still waiting for an explanation as to why processing should stop completely.

[00:13:09] Speaker 05:
The state department in its discretion believes that it's inefficient to, given the suspension and the upcoming cap, to start processing a bunch of people who won't have

[00:13:18] Speaker 05:
any chance of getting in until the president determines that.

[00:13:21] Speaker 04:
Counsel, you've got 128,000 people.

[00:13:25] Speaker 04:
You have a cap of 125.

[00:13:26] Speaker 04:
So even if we admitted 125 for FY 2025, there will be 3,000 people that have been classified as refugees who are not going to get in.

[00:13:36] Speaker 04:
Somebody's going to have to make some decisions about what the priorities are.

[00:13:40] Speaker 04:
And so to follow up on Judge Clifton's process, if you're not processing people,

[00:13:44] Speaker 04:
The only people who've got priority are the people that have already been processed by the Biden administration and nobody else.

[00:13:53] Speaker 05:
Your honor, frankly, I think that's a policy determination for the president and the state department to make.

[00:13:56] Speaker 05:
Did they make that policy determination?

[00:14:00] Speaker 05:
Yeah, that they think that they should suspend admissions policies right now.

[00:14:03] Speaker 04:
Yes, but the president did suspend entry.

[00:14:07] Speaker 04:
Entry is different.

[00:14:08] Speaker 04:
from the process of classifying people as refugees.

[00:14:12] Speaker 04:
This is a very, very old distinction, well established in the cases.

[00:14:16] Speaker 04:
It's established in the statutes.

[00:14:18] Speaker 05:
Again, Your Honor, I think they're closely related for the fact that if you can't get admitted, the status doesn't really do anything.

[00:14:23] Speaker 05:
Like if you have a visa for work but you can't get admitted to the country, that doesn't really mean anything.

[00:14:29] Speaker 05:
And I think this also gets to the irreparable harm of the fact that

[00:14:32] Speaker 05:
this takes years and years for this process to come out sometimes.

[00:14:35] Speaker 05:
And that even if these people get the status, that doesn't mean that they get entry for a number of admissibility bars and a lot of discretion is built in.

[00:14:42] Speaker 05:
And so I don't think there's irreparable harm from the processing or the proclamation itself.

[00:14:46] Speaker 05:
because these people aren't assured entry, which is really what they're trying to get, and is really the benefit of the entire process.

[00:14:50] Speaker 04:
I'd like you to turn to the question of those who have already been admitted as refugees and what appears to be the cancellation of funding for the organizations, the cooperative agreements that would provide services to refugees in the United States.

[00:15:07] Speaker 04:
Okay, can you address why we are not still providing services to refugees in the United States?

[00:15:13] Speaker 05:
So the one individual plaintiff who did bring that claim has been given the funds that he was requesting.

[00:15:18] Speaker 05:
But the reason for it is that the State Department and the President determined that it didn't make sense to continue providing funds when no new refugees would be admitted.

[00:15:28] Speaker 03:
Are there, I mean, there's a memoratorium for the most part of admissions since January.

[00:15:32] Speaker 03:
Are there refugees who have been admitted

[00:15:35] Speaker 03:
who are eligible for refugee resettlement services.

[00:15:39] Speaker 05:
Well there is the one individual plaintiff who has been given the status, maybe some of the ones for the carve out could be, but again this is not a complete termination of all of the grants for this fiscal year.

[00:15:49] Speaker 05:
A lot of the money has already gone out throughout the year and the government has committed to paying for any work that's already been done.

[00:15:55] Speaker 05:
It's just terminated individual grants going forward and one of those grants has not actually been terminated.

[00:16:00] Speaker 03:
And with respect to that statute 8 USC 1522, is that

[00:16:05] Speaker 03:
Are the funds, is it mandatory?

[00:16:07] Speaker 03:
Does the government have to spend that money or is it discretionary in your view?

[00:16:11] Speaker 05:
Your honor, our reading of the statute is discretionary.

[00:16:13] Speaker 05:
The title of the chapter is authorizations.

[00:16:15] Speaker 05:
And if you go to subsection B, which is all about the resettlement, it says that the director, or in this case, the secretary, is authorized to expropriate funds for these various means.

[00:16:24] Speaker 05:
and through grants, cooperative agreements, and other processes.

[00:16:28] Speaker 05:
Now, plaintiffs point to the fact that there are a number of requirements under that, but those are requirements that exist if the grants are chosen to give out.

[00:16:35] Speaker 05:
So, you know, the Secretary can't just give out grants for any reason whatsoever if he chooses to give out the grants.

[00:16:40] Speaker 04:
So can the Secretary decide not to provide medical assistance and employment assistance and housing and other things under 1522?

[00:16:50] Speaker 05:
Yes, your honor.

[00:16:51] Speaker 05:
That is our understanding of the statute.

[00:16:52] Speaker 04:
You can say you got into the United States.

[00:16:54] Speaker 04:
Good luck.

[00:16:55] Speaker 05:
Yeah, that is allowed because it authorizes the secretary to make these decisions, to make these funding choices.

[00:17:01] Speaker 05:
Plus, this is a long song.

[00:17:02] Speaker 02:
I'm not sure that reconciles with the language at the very beginning of that section, which says the director shall, not might, not in its discretion can decide to, but take a look at 1522 A1A.

[00:17:19] Speaker 02:
And shall,

[00:17:21] Speaker 02:
I mean, Justice Scalia's book tells us it's a mandatory word.

[00:17:25] Speaker 02:
We've got a congressional act which says this is what the government should do, what the director of the ORR should do.

[00:17:33] Speaker 02:
Where does that give the government discretion to decide, ah, we don't want to do it anyway?

[00:17:38] Speaker 05:
I think a couple of responses to that, Judge Clifton.

[00:17:40] Speaker 05:
First, the entire section, the entire chapter is called authorizations, and the secretary is authorized to give out funds to the extent that it's appropriated.

[00:17:49] Speaker 05:
And if you look to subsection B, not subsection A, which is about these resettlement funds that are generally at issue, that does say that the director or the secretary is authorized to make funds, authorized to enter grants and cooperative agreements for these purposes.

[00:18:02] Speaker 05:
And so we do think that that's- How does that negate the word shell?

[00:18:05] Speaker 05:
Well, I think for the purposes of the resettlement, it does.

[00:18:08] Speaker 05:
It makes clear that this entire chapter is about the discretion that is given to the secretary.

[00:18:14] Speaker 05:
And I think also in one of the Texas cases, the Supreme Court says shall when there's inherent sort of discretion baked in, doesn't actually always mean shall.

[00:18:21] Speaker 05:
So for example, in Lincoln versus Virgil, the Supreme Court made clear that when there was a lump sum appropriation, like here, that's given to the discretion of the agency.

[00:18:31] Speaker 05:
And the agency here had peer discretion over whether to give it.

[00:18:34] Speaker 05:
And I just want to make clear,

[00:18:35] Speaker 05:
Yes.

[00:18:37] Speaker 05:
This was not a termination of all of the funds for the entire year.

[00:18:40] Speaker 05:
Quite a bit of money has already gone out for this fiscal year for these grants.

[00:18:44] Speaker 04:
Right, but I'm trying to figure out.

[00:18:45] Speaker 04:
So the statute has a 36-month sort of cap on things.

[00:18:51] Speaker 04:
The regs and other things have 90-day provisions that go to various requirements.

[00:18:57] Speaker 04:
I'm trying to figure out, have all of the refugees in the United States already received the things that they were told that 1522 requires

[00:19:06] Speaker 04:
the secretary to provide.

[00:19:10] Speaker 05:
I know that the individual named plaintiff has.

[00:19:12] Speaker 05:
I'm not sure about the people who have been admitted since under the carve-out from the state panel.

[00:19:17] Speaker 04:
How about people who were admitted in early January?

[00:19:20] Speaker 04:
Do we have other people who've been admitted on the case-by-case basis?

[00:19:26] Speaker 05:
There have been people admitted from the exemptions and I'm not entirely sure whether they've gotten all this.

[00:19:30] Speaker 05:
But again, I don't think it's mandatory.

[00:19:32] Speaker 04:
You think that they... Go ahead.

[00:19:36] Speaker 02:
You told us there were people admitted before January 20th.

[00:19:40] Speaker 02:
The order, executive order doesn't apply, doesn't toss them back out.

[00:19:45] Speaker 02:
You told us that services already provided were paid for, but what happened to the services that were promised and the statute appears to guarantee to those people?

[00:19:57] Speaker 02:
Has anything been done to provide those services?

[00:20:00] Speaker 05:
Again, Your Honor, our understanding of the statute is that it's not required.

[00:20:03] Speaker 02:
Assume for a moment that my understanding isn't the same as yours, that shall means shall.

[00:20:09] Speaker 02:
So you're acknowledging, I take it, that in fact they did not provide services to the people who were lawfully admitted prior to January 20th, regardless of whatever the statute says.

[00:20:21] Speaker 05:
I'm not sure that those individuals were all given the funds, but as far as standing in this case goes, the PI here was based on a single named plaintiff who has been given all the funds.

[00:20:32] Speaker 05:
So I think that that issue would be moot as far as this PI is concerned.

[00:20:36] Speaker 04:
And again, I think Lincoln versus... Well, we do have a class that's been certified, right?

[00:20:40] Speaker 04:
We have three classes.

[00:20:41] Speaker 05:
I'm going to disagree with you respectfully on that, Judge Bybee, because the class certification didn't occur until long after this PI was already granted.

[00:20:49] Speaker 05:
So the PI is not based on the class.

[00:20:51] Speaker 05:
And once the PI is on appeal, the court lost jurisdiction to modify or change anything about the PI.

[00:20:56] Speaker 05:
So that class is not before us.

[00:20:57] Speaker 05:
Now on remand, if this court decides to reverse the PI, we can have that debate.

[00:21:01] Speaker 05:
And we obviously disagree with the class certification.

[00:21:04] Speaker 05:
But that's not at issue in this case.

[00:21:05] Speaker 05:
And so that can't be a basis for the PI that the district court issued here, and it's on appeal.

[00:21:11] Speaker 03:
Can you address the Tucker Act issue on the jurisdictional issue?

[00:21:15] Speaker 03:
I understand the argument with respect to the nonprofit organizations that you cite, California versus Department of Education and the recent NIH, but with respect to the individual refugees, how does the Tucker Act apply in that context?

[00:21:30] Speaker 05:
Yeah, I do think it is arguably different for the individual plaintiffs because they're not sort of seeking money from a terminated contract or breach.

[00:21:37] Speaker 05:
So I think that really turns on whether they have an APA claim, which we don't believe that there is a discrete policy that they can challenge.

[00:21:44] Speaker 05:
The only thing that's happened here is the termination of a bunch of individual grants.

[00:21:48] Speaker 05:
And plaintiffs acknowledged that under the grants and the regulations themselves, the government was completely capable of terminating all of them.

[00:21:54] Speaker 05:
They include the ability to be terminated for changes in policy, which the government provided notice and made clear, given the proclamation, that there was a change in the government's policy.

[00:22:04] Speaker 05:
I also, again, reiterate that we don't think that the statute is mandated, but assuming that the statute does mandate it, we still don't think that's reviewable under the APA, under Lincoln versus Virgil.

[00:22:14] Speaker 05:
When Congress gives a lump some appropriation, that's committed to agency discretion, and that's not something that's easily reviewable.

[00:22:21] Speaker 05:
And I also think that essentially what plaintiffs are doing here with their APA claims are saying,

[00:22:26] Speaker 05:
All of these different decisions and actions by the federal government amount to shutting down the refugee program, and they're challenging that.

[00:22:32] Speaker 05:
Under NTEU versus VOT, which is a recent DC Circuit case dealing with similar issues, there the plaintiffs tried to get around a lot of these issues by challenging what they saw as the shutdown of CFPB, and the DC Circuit said, no, what you're doing is a programmatic attack.

[00:22:47] Speaker 05:
You're taking all of these distinct actions, you're putting them together, you're saying that that's a final agency action, and you're trying to reform the entire system.

[00:22:54] Speaker 05:
that is under Lujan 1 an impermissible programmatic attack, which is what we also think is going on here.

[00:23:02] Speaker 05:
So again, I think there are a number of problems with the APA claims.

[00:23:05] Speaker 05:
I think there are, and if the proclamation is valid, I think a lot of these things fall away anyways because they're essentially carrying out the policies of that proclamation.

[00:23:13] Speaker 04:
Are there claims that you think have to go over to the Court of Federal Claims?

[00:23:18] Speaker 05:
The organizational plaintiff's claims for

[00:23:21] Speaker 05:
the terminated.

[00:23:22] Speaker 04:
And why do they have to take over there?

[00:23:24] Speaker 04:
You said you've already paid for all of the services they've provided in the past.

[00:23:28] Speaker 04:
In the past, yes.

[00:23:29] Speaker 04:
So what would be the claim that they would take?

[00:23:31] Speaker 04:
That they're entitled to specific performance for continued payments.

[00:23:34] Speaker 04:
I didn't think that the CFC could grant specific performance.

[00:23:38] Speaker 04:
That's inequitable.

[00:23:39] Speaker 05:
Well, they can grant future funds, and I think this argument was made in the Department of Education.

[00:23:43] Speaker 05:
This argument was made in the NIH case that the Supreme Court both stayed.

[00:23:47] Speaker 04:
These are cooperative agreements.

[00:23:49] Speaker 04:
They're not contracts.

[00:23:52] Speaker 05:
Well, Your Honor, it would be a little bit strange if somebody with cooperative agreements therefore had more rights to bring equitable suits than somebody with a contract with the government.

[00:24:01] Speaker 05:
But I do think that these people can probably bring suits in the Court of Federal Claims if they have some sort of right under the cooperative agreements.

[00:24:11] Speaker 04:
The Federal Circuit and the Court of Federal Claims have been very, very clear that cooperative agreements are not contracts and cannot be enforced under the Tucker Act.

[00:24:19] Speaker 04:
that the only way that they can be enforced is APA and that they don't have jurisdiction over that.

[00:24:23] Speaker 05:
And I think it's rather odd that because these are cooperative agreements, they would have APA claims that people with contracts or grants would not have.

[00:24:31] Speaker 04:
Right, but they do not have a contractual right.

[00:24:33] Speaker 04:
If they had contractual rights, they actually would be much, much more specific and would be beneficial for them.

[00:24:38] Speaker 04:
That might put them into the court of federal claims.

[00:24:42] Speaker 04:
So they have less protection

[00:24:44] Speaker 04:
because these are cooperative agreements, but that is a consequence of the way that Congress has structured this, and that the Secretary of State decided to proceed not by contract, which the statute authorized him to do, but by cooperative agreements, which are much more like grants.

[00:25:00] Speaker 05:
But I guess two things.

[00:25:01] Speaker 05:
One, I think given the remedy that plaintiffs are asking for and what the district court actually ordered was essentially contractual relief, giving them the funds that they thought that they were due under the terminated agreements.

[00:25:12] Speaker 05:
If that's what is actually going on here, I think that should go to the Court of Federal Claims.

[00:25:16] Speaker 05:
And if that's not allowed under cooperative agreements, then I don't think they should have gotten that remedy in the first place.

[00:25:21] Speaker 05:
The second point I would like to make

[00:25:24] Speaker 05:
is plaintiffs themselves acknowledge that these cooperative agreements can be terminated essentially at will by the government, and that's what the government did here.

[00:25:30] Speaker 05:
So I don't really understand what their APA claim is or what the remedy would be.

[00:25:34] Speaker 05:
What are they vacating?

[00:25:35] Speaker 05:
Are they vacating the terminations of their grants?

[00:25:37] Speaker 05:
There's no other sort of policy other than the termination of these individual grants.

[00:25:40] Speaker 05:
And again, some of the money's already been paid out in the past, they're paying out for work done, and there's one grant that has not been terminated.

[00:25:46] Speaker 05:
So I don't know what final agency action or policy they're challenging under the APA, other than the termination of their individual non-cooperative agreements, which they admit can be terminated at will for changes in policies, which is exactly what happened here.

[00:26:00] Speaker 05:
So for that reason, I don't think they have APA claims either.

[00:26:02] Speaker 03:
Could the individual refugees go to the Court of Federal Claims and try to enforce the cooperative agreements as essentially third-party beneficiaries?

[00:26:11] Speaker 05:
I don't think they would have standing for that.

[00:26:13] Speaker 03:
I think that they have to sort of bring the APA claims, but again... I mean, as a general contract principle, third-party beneficiaries can enforce contracts even if they're not a party to the contract, right?

[00:26:28] Speaker 05:
Yes, sometimes they can.

[00:26:30] Speaker 03:
As long as it's clear that the contract references them and it's for their benefit.

[00:26:35] Speaker 05:
Right.

[00:26:35] Speaker 05:
I mean, it's a bit weird here when you have cooperative agreements and it's for like a class of people and an individual goes and says, you know, these terminated cooperative agreements were meant to benefit me.

[00:26:45] Speaker 05:
And especially when the government has discretion over who they enter with the cooperative agreements and discretion to terminate them, it's a little bit odd to think that that would end up there.

[00:26:54] Speaker 05:
But again, like that is a possibility, I suppose.

[00:26:58] Speaker 03:
I know you're way over time, we'll give you extra three minutes, but before I do, does Judge Bybeard-Clifton have any questions?

[00:27:04] Speaker 03:
Okay, great, thank you.

[00:27:30] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:27:32] Speaker 01:
My name is Linda Everts.

[00:27:34] Speaker 01:
I am appearing on behalf of Plaintiff Appellees, and I will be splitting the argument today with my colleague Melissa Keeney.

[00:27:40] Speaker 01:
I'm planning to address the merits, and Ms.

[00:27:42] Speaker 01:
Keeney is planning to address the balance of equities and the scope of relief.

[00:27:48] Speaker 01:
Your honors, the Supreme Court in Hawaii specifically contemplated limits on the president's exercise of his 1182-F authority, including that the president cannot override a statute such as the Refugee Act.

[00:28:00] Speaker 01:
Shutting down a program mandated by Congress within hours of inauguration cannot satisfy those limits.

[00:28:07] Speaker 01:
The Refugee Act

[00:28:08] Speaker 01:
was a landmark piece of legislation.

[00:28:10] Speaker 01:
As Your Honors have already noted, it was extremely detailed, the work of a decade, and intended, among other things, to put into place this country's treaty obligations.

[00:28:21] Speaker 01:
Congress declared in the Act that it is the policy of the United States to respond to the urgent needs of persecuted people.

[00:28:27] Speaker 01:
And the Act has two main objectives.

[00:28:30] Speaker 01:
One, to provide a permanent and systematic procedure for admitting refugees of special humanitarian concern to the United States.

[00:28:37] Speaker 01:
and two, to provide comprehensive and uniform provisions for the effective resettlement of those admitted refugees.

[00:28:44] Speaker 01:
The executive order overrides the Refugee Act and flips Congress's scheme on its head.

[00:28:49] Speaker 01:
It functionally makes the status of being a refugee into a ground of inadmissibility because refugees are categorically barred as a group.

[00:28:58] Speaker 01:
And this conflicts in various ways with the Refugee Act.

[00:29:02] Speaker 01:
For one, as has already come up in the questioning of government's council, the Refugee Act specifically says, and it's codification in 1522 A1A,

[00:29:15] Speaker 01:
that to the extent of available appropriations, certain services shall be provided to refugees.

[00:29:21] Speaker 01:
And those include, among others, as judged by be noted, that they shall be provided with assistance in order to become, to find jobs and to have English language training.

[00:29:35] Speaker 04:
Council, let's turn back to the relationship between 1182F and the Refugee Act.

[00:29:42] Speaker 04:
So, 1182 does give the President authority and the court in Hawaii recognized that.

[00:29:51] Speaker 04:
Why can't the president suspend this?

[00:29:53] Speaker 04:
I mean, this is the little bit of the double-edged sword here is that the government wants to rely on the 90-day review to show that the program is temporary and not permanent.

[00:30:05] Speaker 04:
You want to emphasize that it's gone to zero in terms of admissions, and with the cancellation of the program and everything else, that looks pretty permanent.

[00:30:16] Speaker 01:
Yes, Your Honor.

[00:30:17] Speaker 01:
And just to be clear, we have two distinct arguments which are independently sufficient grounds to affirm the district court's preliminary injunction.

[00:30:23] Speaker 01:
One is the idea that this is not a suspension as authorized under 1182f, because it's not a suspension for a period.

[00:30:29] Speaker 01:
It is functionally an indefinite suspension.

[00:30:32] Speaker 01:
And the reason for that is clear just on the face of the executive order.

[00:30:35] Speaker 01:
And that's because among the policy interests that President Trump says motivate that order are preserving US taxpayer dollars for US citizens.

[00:30:45] Speaker 01:
Because the Refugee Act specifically requires the taxpayer funding be used to resettle refugees in this country, it is impossible to admit refugees and not use taxpayer dollars for them.

[00:30:58] Speaker 01:
And so that is why there is an irreconcilable conflict between the executive order on the one hand.

[00:31:05] Speaker 04:
But the President has said it's going to be reviewed every 90 days.

[00:31:08] Speaker 01:
But if it's reviewed every 90 days with that policy in mind, then there's still any irreconcilable conflict.

[00:31:12] Speaker 01:
And every 90 days, it will continue to be the case that refugees are contrary to the US interests, according to President Trump.

[00:31:18] Speaker 04:
The president has the authority to set the cap each year.

[00:31:22] Speaker 04:
What if the president set the cap at 25?

[00:31:27] Speaker 01:
Your Honor, obviously it would be a...

[00:31:31] Speaker 01:
What I will say is that it is clear that the president cannot set the cap at zero.

[00:31:36] Speaker 01:
And that's because that would be directly contrary to Congress's system to have a permanent and systematic way for admitting refugees into this country and providing for them once here.

[00:31:46] Speaker 01:
It simply would not be the policy.

[00:31:48] Speaker 04:
And so how would that be contrary?

[00:31:50] Speaker 04:
How would that violate the act?

[00:31:51] Speaker 04:
Doesn't the president get to set the limit?

[00:31:53] Speaker 01:
The president does get to set the limit, but the idea is that it cannot be the case that we have a permanent system for refugee admissions if the president can simply say there will be no refugees admitted to this country.

[00:32:03] Speaker 04:
He has to renew it every year, and Congress gave him that authority.

[00:32:06] Speaker 04:
If Congress doesn't like it, they can come back and set the limit themselves.

[00:32:09] Speaker 04:
They can hold congressional hearings.

[00:32:11] Speaker 04:
They can impeach the president.

[00:32:12] Speaker 04:
There's a lot of different remedies that Congress might have.

[00:32:16] Speaker 04:
But if they're going to tell the president that he can set the limit, by statute it's capped at 125.

[00:32:22] Speaker 04:
Is that right?

[00:32:23] Speaker 04:
Is the statute?

[00:32:24] Speaker 01:
No, my statute.

[00:32:26] Speaker 01:
President Biden set the limit last year at 125, but there's no limit in the statute as to how high the cap can go, if that's the question.

[00:32:34] Speaker 04:
And there's nothing in the statute that tells you how low it can go.

[00:32:36] Speaker 01:
That is also correct, Your Honor.

[00:32:38] Speaker 01:
The floor.

[00:32:39] Speaker 04:
So if the president set it at 25, tell me why that violates the act.

[00:32:44] Speaker 01:
I think it's difficult to say what specific number, and so that's why I was talking about why the President can't set zero, but I do want to go back to what you said just a moment ago, Judge, by the... If the President... Okay, now I hear you backing off.

[00:33:00] Speaker 04:
It seems to me that you're admitting the President could set it at 25.

[00:33:04] Speaker 04:
Clearly, there will be people who will disagree with him, but apparently, and by law, the President could set it at 25.

[00:33:11] Speaker 04:
He said it's at 25.

[00:33:12] Speaker 04:
That has a whole bunch of other consequences.

[00:33:16] Speaker 01:
One thing I would note, Judge Bybee, is that in addition to Congress making clear what its purpose was in creating the Act and what its policy was to admit refugees, it's also that it had other statutory purposes, including ensuring family unity.

[00:33:29] Speaker 01:
And you can see that in various provisions of the Refugee Act.

[00:33:33] Speaker 01:
And those provisions directly go to the idea that refugees who are already here shall be able to bring their immediate family members, their children, and their spouses here.

[00:33:41] Speaker 01:
And so if the refugee cap was set at 25, it would make it impossible for those individuals to unite with their families.

[00:33:49] Speaker 01:
Congress has said that.

[00:33:49] Speaker 04:
That's also true as to the 3,000 who have been granted refugee status but can't be admitted under President Biden's limit of 125,000.

[00:34:00] Speaker 04:
somebody's going to be left out here.

[00:34:02] Speaker 04:
There's 128,000 who have had, according to government statistics, who have refugee status approved.

[00:34:10] Speaker 04:
But under President Biden's cap, that's 125,000.

[00:34:12] Speaker 04:
That's a difference of 3,000.

[00:34:15] Speaker 04:
Somebody's going to get left out here, even under a very generous rating of the statute.

[00:34:20] Speaker 01:
But I just want to make clear, Judge Bybee, that when you look at what Congress intended, it's

[00:34:26] Speaker 01:
It's a system that is in place year upon year upon year that's designed to be permanent.

[00:34:32] Speaker 01:
And so even if someone were not able to enter this particular year, the expectation would be that they'd be able to be admitted in the future.

[00:34:38] Speaker 01:
And as Your Honor noted in the questioning of the government, processing tends to take years.

[00:34:43] Speaker 01:
And so it would be anticipated that someone might not be admitted this year, but certainly could be admitted in a future year, as long as processing were to continue.

[00:34:53] Speaker 03:
other countries, you know, foreign countries, there's a epidemic of Ebola, COVID, monkeypox, you know, all rolled into one.

[00:35:02] Speaker 03:
And the President says, invoking 1182F, I'm not going to let any refugees into the United States because I don't want potential diseases, deadly communicable diseases, come to the United States.

[00:35:13] Speaker 03:
Does the President still have power to do that or does Refugee Act override it and the President still has to admit refugees in?

[00:35:20] Speaker 01:
Just to be clear, Judge Lee, in this hypothetical, the entire pandemic exists in the entire world, and so the idea is that refugees from anywhere in the world?

[00:35:28] Speaker 03:
Yeah, well, we don't know.

[00:35:29] Speaker 03:
It's in other parts of the world, and the President says, I'm going to limit the number of refugees coming to the United States to zero because I don't want this disease to come into the United States.

[00:35:38] Speaker 03:
Does the President still have to, because there's a cap, still have to allow people in?

[00:35:44] Speaker 01:
I mean, certainly I think it would depend.

[00:35:46] Speaker 01:
It's hard to say without thinking about the specific findings and additional explanation in the process, obviously, that is required under the Refugee Act.

[00:35:55] Speaker 01:
But what I would say is that, at a minimum, that seems extraordinarily different than what we have here, which is the president saying, that there is a policy interest that is categorically

[00:36:04] Speaker 01:
opposed to the idea of having refugees as provided for under Congress's act.

[00:36:09] Speaker 01:
I would note just one fact that I want to point that court to, which is that in another way in which the President's executive order conflicts with the act is that Congress has already thought about this idea of refugees and other similar populations

[00:36:29] Speaker 01:
heavily impacting certain areas of the country.

[00:36:32] Speaker 01:
And I'm pointing you now to 1522A2C1.

[00:36:37] Speaker 01:
And so Congress thought about that idea and it said there will be areas that are heavily impacted by refugees in similar populations.

[00:36:46] Speaker 01:
And when that happens, the answer is not to bar refugees entirely from the country, but rather that the entities that are resettling refugees and deciding on their placements, and that includes resettlement agencies referred to as local

[00:36:58] Speaker 01:
agencies there, voluntary agencies, that they need to, in general, place people in areas that are not heavily impacted in the United States, except, I would note, when there is immediate family in a heavily impacted area.

[00:37:12] Speaker 01:
And then the refugee is still resettled in that heavily impacted area.

[00:37:16] Speaker 01:
And I note all of this because it's clear that President Trump, Congress has stepped into this space, just like Hawaii talks about, thought about this problem, and come to a conclusion.

[00:37:24] Speaker 01:
And it has drawn a line.

[00:37:26] Speaker 01:
And now President Trump is stepping into the space and wiping all of that away.

[00:37:31] Speaker 04:
I just don't see how the judiciary has any role in enforcing that.

[00:37:34] Speaker 04:
Those lines are not so specific that we are in a position to second-guess the president or the secretary of state in the admission of this.

[00:37:44] Speaker 04:
And 1182F does give the president the power to suspend it.

[00:37:51] Speaker 04:
Your honor, the question of cancellation raises a whole bunch of questions that I dealt with with the government, which I'd like to get to.

[00:37:58] Speaker 04:
But I don't I don't see how I don't see how the president doesn't have authority to suspend this or how he doesn't have the authority next year in, you know, for FY 2026 to declare that only 25 people will be admitted.

[00:38:14] Speaker 04:
It may be it may be awful policy, but it doesn't strike me that it's unlawful.

[00:38:20] Speaker 01:
The only additional conflict that I would point your honor to is, as I mentioned before, Congress had specifically intended the Refugee Act to replace the ad hoc executive decision-making with respect to refugees that had existed before, and to ensure not only that there was planning, year-by-year planning, and also that it was systematic, but also that there was heavy consultation with Congress.

[00:38:42] Speaker 04:
If you look at the consultation requirements in 1157— And can we enforce the consulta—did the president not consult with Congress?

[00:38:49] Speaker 01:
Well, in the executive order, there's no indication that he has.

[00:38:52] Speaker 04:
But is that something that we get to enforce?

[00:38:55] Speaker 04:
We get to strike the executive order because we think that the president didn't consult with Congress or he didn't consult in good faith?

[00:39:04] Speaker 04:
These are just non-justiciable counsel.

[00:39:06] Speaker 01:
Your Honor, my point is simply that Congress wanted to be involved in this process.

[00:39:12] Speaker 01:
It wanted to be involved both in consultation in the subject matter that the president had to think about in terms of which refugees to admit and how many to admit.

[00:39:19] Speaker 01:
And it has a heavily detailed procedure that's unique in the INA, if not in law, as to what the president and his administration have to do.

[00:39:28] Speaker 02:
What in subsection F reflects the limitations you say we should infer from other portions of the statute?

[00:39:35] Speaker 02:
I mean, they could have written into subsection F, for example, exclusion for family members that you talk about are protected elsewhere.

[00:39:42] Speaker 02:
But I don't see anything like that in subsection F. I don't see subsection F requiring approval of Congress or consultation or anything else.

[00:39:52] Speaker 02:
So how is it, I mean, the fact that there is potentially a statutory mandate to provide assistance in resettlement does distinguish this case, I think, from many others.

[00:40:07] Speaker 02:
But I don't see how that

[00:40:09] Speaker 02:
speaks to the particular problem that's been teed up right now, which is the president's authority to suspend entry.

[00:40:18] Speaker 02:
What can we turn to to apply a limiting principle to that authority?

[00:40:25] Speaker 01:
Your Honor, the last thing I would say on this, and then I'm happy to turn to the APA claims,

[00:40:30] Speaker 01:
is just that as we pointed out in our briefing and as this court has pointed out in Hawaii v. Trump, the vacated opinion that had to do with the second executive order that had a refugee ban included in it, a later in time and more specific statute under traditional canons of statutory interpretation controls and so

[00:40:55] Speaker 01:
It seems clear in this case that Congress thought about this and it specifically wanted there to be a specific refugee program that had these consultation requirements that ensured that refugees were both admitted and that they received resettlement benefits once they got here.

[00:41:11] Speaker 01:
But I see that my time is rapidly going so if there are no more questions on this then I will pivot to the

[00:41:20] Speaker 01:
plaintiffs, APA claims, even if this court were to determine that the refugee act, the refugee ban, I'm sorry, is lawful, the agencies, as we pointed out in our briefing, did much more than what the executive order required, and their actions were unlawful.

[00:41:40] Speaker 01:
So, for example, it's clear under what is required of agencies that they must act reasonably and reasonably explain their actions.

[00:41:49] Speaker 01:
The threshold as the district court found the agencies have not reasonably explained their actions at all and in addition their actions are not reasonable so as judge by be and I was asking before there are a variety of ways in which it's clear that the agency's action here is

[00:42:09] Speaker 01:
directly conflict with the Refugee Act, perhaps most notably going to 1522 for a moment.

[00:42:16] Speaker 01:
So A1A says that the agencies shall, to the extent of available appropriations, provide certain assistance to refugees who are admitted to this country, and of course all of that language in that entire section is designed to implement one of the two main objectives of the Act, which is to provide effective... So what assistance is not being provided?

[00:42:38] Speaker 01:
Well, at this point in time, the assistance that's being provided is being provided because of the court's injunction to the extent that it remains in effect.

[00:42:45] Speaker 01:
And the government hasn't sought to stay the second injunction.

[00:42:49] Speaker 01:
But that assistance would generally be for the first 90 days of a refugee being in the United States, the assurance of support from a local organization.

[00:42:58] Speaker 01:
And that assurance would include setting up housing,

[00:43:01] Speaker 01:
getting food in the refrigerator, making sure that kids are enrolled in school, helping the adults to find jobs.

[00:43:10] Speaker 03:
It's been more than 90 days since January when this moratorium was put into place.

[00:43:16] Speaker 03:
Are there any eligible refugees who have been admitted who would

[00:43:19] Speaker 03:
still be eligible for the resettlement services?

[00:43:22] Speaker 01:
Yes, and not just refugees.

[00:43:25] Speaker 01:
So the government talked only about one named plaintiff, but of course this action is now a class action and it's one of the classes that was certified is on behalf of all refugees who have been or will be admitted within 90 days, the initial resettlement benefits that they would be entitled to in their first 90 days.

[00:43:42] Speaker 03:
Are those people already admitted to the United States or they're asking to be admitted?

[00:43:46] Speaker 01:
So there are people who were admitted because of the court's injunction, the portion that has remained operative after the panel stayed partially the injunction.

[00:43:55] Speaker 01:
And so those individuals continue to be entitled to services.

[00:43:58] Speaker 04:
How many people are there?

[00:44:00] Speaker 01:
I think there are approximately 80 who have been admitted as a result of that.

[00:44:03] Speaker 01:
But I would also note, Your Honors.

[00:44:04] Speaker 04:
So that class is a class of 80.

[00:44:06] Speaker 04:
These are largely the Afghani refugees?

[00:44:09] Speaker 01:
Not entirely, no.

[00:44:11] Speaker 04:
Largely.

[00:44:11] Speaker 01:
I'm sorry?

[00:44:12] Speaker 04:
Largely.

[00:44:13] Speaker 01:
Some of them are from Afghanistan, but there are people from other parts of the world as well.

[00:44:17] Speaker 01:
But in addition to that, as we pointed out, Congress has also provided that our Afghan and Iraqi allies who have come through the Special Immigrant Visa Program, they are entitled to reception and placement benefits to the same extent as refugees.

[00:44:33] Speaker 01:
They have been continuing to arrive.

[00:44:35] Speaker 01:
Nothing has happened to that program.

[00:44:37] Speaker 01:
And they have not been able to get their benefits in the same way that they would have otherwise.

[00:44:40] Speaker 01:
We've heard that they are trying to sign up for benefits when they arrive, told that they're two plus months away.

[00:44:47] Speaker 04:
Are the Afghani and Iraqi refugees arriving under that program, are they not subject to this ban?

[00:44:53] Speaker 04:
Is this or is this covered by the injunction?

[00:44:55] Speaker 01:
I'm not talking about refugees right now.

[00:44:56] Speaker 01:
I'm talking about a different pathway This is the special immigrant visa pathway and so it's it's not refugees But Congress has provided that this group of people is entitled to benefits to the same extent as refugees I'm really I'm really confused Yes, they are and they are part of the certified class for reception and placement benefits, okay, are they receiving benefits?

[00:45:17] Speaker ?:
I

[00:45:18] Speaker 01:
So our understanding is that they are not receiving benefits in the way that they otherwise would, and they have to get on wait lists and are often turned away.

[00:45:25] Speaker 04:
Okay.

[00:45:27] Speaker 04:
And would they be entitled to benefits?

[00:45:28] Speaker 04:
Where does the 90-day thing come from?

[00:45:31] Speaker 04:
The statute refers to three years.

[00:45:33] Speaker 04:
Where does the 90 days come from?

[00:45:35] Speaker 01:
So if you look at 1522B, that's talking about initial resettlement benefits.

[00:45:39] Speaker 01:
It's referred to as the reception and placement program.

[00:45:42] Speaker 01:
So that's the first 90 days, and it's a critical 90 days.

[00:45:45] Speaker 01:
when very basic benefits are provided that set up the effective resettlement that Congress demanded in the statute.

[00:45:52] Speaker 01:
And then after that there are other programs to which refugees are entitled that are administered by ORR.

[00:45:59] Speaker 04:
And is that what the three years applies to?

[00:46:01] Speaker 01:
That's right.

[00:46:02] Speaker 01:
That's what's happening over the duration of the three years.

[00:46:06] Speaker 04:
Okay, so are these folks receiving anything under these programs either the initial 90-day Help assistance or the more extensive?

[00:46:17] Speaker 01:
Programs just to back up for a moment judge baby because I think this is motivating your question

[00:46:23] Speaker 01:
What the agencies did was they terminated overnight all of the reception and placement contracts.

[00:46:29] Speaker 01:
But for the court's injunction, there would no longer be a reception and placement program.

[00:46:33] Speaker 01:
It would be entirely gone.

[00:46:34] Speaker 01:
And so if the court had not enjoined that action, no one would be receiving benefits, not the refugees who have been arriving under the operative portion of the injunction and not the special immigrant visa Afghan and Iraqi allies, no one.

[00:46:47] Speaker 01:
The only reason that those benefits are available right now to any extent is because of the district court's injunction.

[00:46:56] Speaker 02:
Do your knowledge is anything being provided to them now?

[00:46:59] Speaker 02:
Once we issued our administrative stay, what happened?

[00:47:05] Speaker 01:
Well, I believe the administrative stay, it stopped refugees from being admitted, but it had no impact on the special immigrant visa admissions because it's a separate program.

[00:47:18] Speaker 02:
What happened to the funding to the organizations that were providing the services?

[00:47:23] Speaker 02:
Was it completely stopped?

[00:47:25] Speaker 02:
And we were told by the government, maybe I misunderstood some things, we were told by the government that they'd been paid for the services already rendered

[00:47:34] Speaker 02:
But that doesn't tell me what's happened to the people who were, for whatever reason, admitted at any time, even before January 20th, who were still in the process of resettlement process.

[00:47:47] Speaker 02:
It could be three years, so forth.

[00:47:49] Speaker 02:
What's happened to the funding for those programs?

[00:47:53] Speaker 01:
So I believe, Judge Clifton, what you're getting at is just that

[00:47:59] Speaker 01:
The government says that past payments have been provided.

[00:48:02] Speaker 01:
But that's not actually what's at issue here.

[00:48:05] Speaker 01:
We're talking about the policy to get rid of initial reception and placement benefits going forward and in the future.

[00:48:12] Speaker 01:
And that obviously harms refugees, as well as Afghan and Iraqi allies who would be entitled to those benefits, as well as the resettlement agencies who have been doing this work for collectively more than 100 years.

[00:48:25] Speaker 02:
Well, this really gets to the question.

[00:48:26] Speaker 02:
What has happened with those

[00:48:29] Speaker 02:
groups since not just January 20th, I guess, since the issuance of the termination of the funding of the programs.

[00:48:42] Speaker 02:
Has the funding stopped for the people that were already in the pipeline of being resettled?

[00:48:48] Speaker 01:
Well, yes, the funding would have stopped for the people who were already in the pipeline.

[00:48:53] Speaker 01:
So reception and placement benefits would no longer be available to someone who was in the United States who had been resettled, but for the district court's injunction, which the government never sought to stay.

[00:49:04] Speaker 01:
The second injunction that dealt with funding termination specifically.

[00:49:09] Speaker 02:
So now we're dealing, we're off the emergency motion, we're on to the merits of the case.

[00:49:15] Speaker 02:
I take it you are arguing that

[00:49:18] Speaker 02:
the district court's injunction should be affirmed with regard to the funding of those programs.

[00:49:26] Speaker 01:
That's correct.

[00:49:28] Speaker 04:
Does the law require that those programs be funded?

[00:49:35] Speaker 04:
I mean, the secretary's commanded to provide certain kinds of services.

[00:49:39] Speaker 04:
He may do that by cooperative agreements.

[00:49:43] Speaker 04:
So the services have to be provided.

[00:49:45] Speaker 04:
That may be done through cooperative agreements, but that doesn't mean the secretary has to do it through cooperative agreements.

[00:49:51] Speaker 04:
The secretary presumably could just provide for this himself.

[00:49:56] Speaker 04:
It hasn't, that hasn't been done that way.

[00:49:59] Speaker 01:
Yes, and your honor, and so I think there are a couple of different things happening.

[00:50:04] Speaker 01:
One is that the statute actually does provide that resettlement agencies will be involved in the placement decisions and the planning for resettled refugees.

[00:50:14] Speaker 01:
And so I would point your honor to 15, 22, A2,

[00:50:18] Speaker 01:
A and B. It says the secretary shall meet with regularly no less than quarterly resettlement agencies.

[00:50:27] Speaker 01:
It uses the term voluntary agencies as well as states and localities.

[00:50:31] Speaker 01:
And then we'll also plan with them.

[00:50:33] Speaker 01:
So there's no way to cut them out of the process entirely.

[00:50:35] Speaker 03:
Can you address this because obviously

[00:50:38] Speaker 03:
Your friend on the other side has a different view of the statute.

[00:50:40] Speaker 03:
He says 1522 is discretionary, and he points to 1522B, C, which says the director is authorized to spend money, and authorized we generally view as discretionary.

[00:50:51] Speaker 03:
And then you point to 1522A, which uses the word shall, which is typically mandatory.

[00:50:57] Speaker 03:
So how do we reconcile 1522A, which has shall, with 1522B, C, and D that uses the word authorized?

[00:51:05] Speaker 01:
So I think the issue here, Judge Lee, is that it is clear that there is a statutory obligation under the Refugee Act to provide assistance to refugees.

[00:51:16] Speaker 01:
That's one of the objectives of the act, and that was codified in 1522.

[00:51:19] Speaker 01:
There's no way around that.

[00:51:21] Speaker 01:
And that is what the district court found.

[00:51:24] Speaker 01:
With respect to section B7, it says that the secretary may enter into

[00:51:33] Speaker 01:
cooperative agreements with resettlement agencies, and of course it has always done so for the last 50 years.

[00:51:40] Speaker 01:
But what the district court held and what we have argued throughout is not that there's never a circumstance in which the secretary can terminate a cooperative agreement.

[00:51:48] Speaker 01:
as long as they do so according to law.

[00:51:52] Speaker 01:
But the issue here is that by terminating en masse overnight all of the cooperative agreements for reception and placement benefits, the government made it impossible for them to meet their obligations to provide for the effective resettlement.

[00:52:05] Speaker 04:
I don't see that there's any right here that belongs to the organizations.

[00:52:11] Speaker 04:
They provided marvelous service in the past.

[00:52:13] Speaker 04:
They got terminated very, very quickly.

[00:52:17] Speaker 04:
But I don't see that they've got a contract.

[00:52:20] Speaker 04:
They're under a cooperative agreement that has a different legal status, and they can be terminated at will.

[00:52:25] Speaker 04:
What it does create, though, is a problem for the refugees who do have a statutory right to certain kinds of resettlement benefits.

[00:52:34] Speaker 04:
Those can be provided by a cooperative through a cooperative agreement with those agencies, but the secretary is under an obligation to see that they are provided in some way.

[00:52:43] Speaker 04:
Now maybe that means the State Department sends its own employees out to help people prepare resumes and drive their kids to school.

[00:52:51] Speaker 04:
But I don't see that that's a right, I see that that's a right belonging to the refugees under 1522, but not to the organizations.

[00:52:59] Speaker 01:
And Judge Rybie, I think that's right and that's exactly what the district court held, but based on the unrebutted factual record and the concessions of defendants in this case, the court found that there was no way for the government to meet its statutory obligations to individual refugees without the agreements that were currently in place.

[00:53:17] Speaker 04:
And that suggests that the actions were arbitrary and capricious.

[00:53:20] Speaker 04:
There's nothing in the law that requires the secretary to enter into cooperative agreements.

[00:53:31] Speaker 04:
It's just simply that the secretary will have then failed to do so and it's probably arbitrary and capricious for him to have terminated these contracts without making other provisions for the refugees.

[00:53:44] Speaker 01:
That's exactly.

[00:53:46] Speaker 01:
And the defendants have never argued, although given many opportunities, how they could possibly meet their obligations now, today, as they were required to do without the cooperative agreements in place.

[00:53:55] Speaker 01:
And that's specifically what the district court found.

[00:53:57] Speaker 01:
And it found that they do have the right to terminate agreements as long as they meet their legal obligations.

[00:54:03] Speaker 01:
He's very clear on that point.

[00:54:04] Speaker 04:
What do we do with processing outside of the country for people who are seeking refugee status?

[00:54:09] Speaker 01:
uh... judge maybe as as you noted and i'd i'd believe there are various other questions on this issue your honors were to conclude that the executive order is lawful because it is suspension within the meaning of living to happen it doesn't conflict with law by terminating the cooperative agreements for processing abroad it makes it absolutely impossible to resume refugee case processing

[00:54:38] Speaker 01:
at any time in the near future.

[00:54:40] Speaker 01:
And so it is effectively just getting rid of the permanent.

[00:54:45] Speaker 04:
And so in your view, you would, if you thought, if we were to hold, you would like us to see us hold, let me ask this differently, let me make it more open.

[00:54:55] Speaker 04:
What is it you want us to hold on that?

[00:54:57] Speaker 04:
on that.

[00:54:57] Speaker 04:
What do you want us to say?

[00:55:00] Speaker 04:
Assume for purposes of my question that I think that the EO is constitutional.

[00:55:06] Speaker 04:
It's within 1182.

[00:55:07] Speaker 04:
Okay?

[00:55:09] Speaker 04:
So what if the government's position is, hey, we're not going to be admitting anybody.

[00:55:14] Speaker 04:
Why should we be processing people?

[00:55:17] Speaker 04:
This is an empty act.

[00:55:18] Speaker 04:
It gives them false promises.

[00:55:21] Speaker 04:
It wastes our money.

[00:55:22] Speaker 04:
It wastes everybody's time in processing that.

[00:55:24] Speaker 04:
So tell me what it is that you think should happen here, assuming that the executive order is constitutional.

[00:55:31] Speaker 01:
So there are, of course, three different ways in which we have argued that the government's action violates the APA, and only one of them is arbitrary and capricious.

[00:55:42] Speaker 01:
But I would say that

[00:55:46] Speaker 01:
a couple of different points.

[00:55:47] Speaker 01:
So one is that, as your honor has already pointed out, if the processing were to stop, then that would mean that all of these refugees, many of whom have case processing that will need to last for years, are just stopped in place, and they cannot come to the United States for a significant period of time because their cases have been stopped.

[00:56:05] Speaker 01:
But in addition, something that did not come up

[00:56:07] Speaker 01:
is that all of the operational apparatus will be eviscerated.

[00:56:12] Speaker 01:
It won't exist anymore.

[00:56:13] Speaker 01:
And so that's yet another reason why there is no reasonable expectation that this processing could resume any time in the near future.

[00:56:21] Speaker 01:
And with respect to the reception and placement program, recall that people come to the United States only with assurances of support.

[00:56:27] Speaker 01:
That's how Congress designed the scheme.

[00:56:29] Speaker 01:
And so you need to have an assurance from a resettlement agency or other

[00:56:33] Speaker 01:
that someone is going to be providing you with those basic benefits that you need.

[00:56:37] Speaker 04:
Right.

[00:56:37] Speaker 04:
Anybody who would be applying for refugee status in the future, if our court were to hold that the EO is constitutional, will understand that, in fact, nobody is being allowed into the United States under the refugee program, that it's been paused.

[00:56:52] Speaker 04:
But my question is, then why should we continue to process applications for refugee status?

[00:57:02] Speaker 01:
So, Your Honor,

[00:57:04] Speaker 01:
a couple of reasons.

[00:57:05] Speaker 01:
I mean, so one, it is contrary to law, to Congress's idea to have a permanent and systematic procedure for admitting refugees, even if they're not being admitted today, if the agencies can just get rid of all of that processing and make it impossible for refugees to be admitted in the future.

[00:57:21] Speaker 01:
That is an action that the agencies are taking.

[00:57:23] Speaker 01:
They're making it impossible to comply with Congress's scheme.

[00:57:26] Speaker 01:
They don't have that authority.

[00:57:29] Speaker 01:
Number two, it is arbitrary and capricious for a variety of reasons, among them that the agencies haven't considered the reliance interests of the refugees who have been in processing some of them for many years.

[00:57:40] Speaker 04:
I got the reliance interest question.

[00:57:42] Speaker 04:
So for people that we are processing, are there other avenues other than coming to the United States that applying for refugee status in the United States would serve?

[00:57:53] Speaker 04:
Are any of these people being admitted, for example, to another country under some kind of a cooperative arrangement with the United States?

[00:58:00] Speaker 01:
I would actually note, Your Honor, that my understanding is that once a person has been placed into the U.S.

[00:58:04] Speaker 01:
pipeline, so the U.S.

[00:58:06] Speaker 01:
refugee admissions pipeline, they are then not able to be in other countries' pipelines.

[00:58:10] Speaker 01:
So actually, it's the case that all of these people who have been in processing, sometimes for years, sometimes on the verge of travel to the United States, now can't come here and don't have another option, precisely because they relied on the system that Congress had created that was designed to be permanent and systematic.

[00:58:27] Speaker 02:
Let me pose a hypothetical.

[00:58:30] Speaker 02:
It's partly triggered by real life.

[00:58:32] Speaker 02:
I know there were a proposal by the United States to the country of Palau, which I'm familiar with in the Pacific,

[00:58:40] Speaker 02:
to accept people from the United States.

[00:58:45] Speaker 02:
Suppose the United States struck an agreement with Palau that people in line to be entered to be admitted to the United States as refugees were instead sent to Palau by the agreement of the Palau government.

[00:59:07] Speaker 02:
How would that affect our argument?

[00:59:11] Speaker 01:
Well, Judge Clifton, that would still be an evisceration of the scheme that Congress intended and an evisceration done by administrative agencies, because Congress said that it wanted refugees to be coming here to the United States, that it was designed to respond to the urgent needs of persecuted people in part by admitting refugees here to the United States and resettling them here.

[00:59:32] Speaker 02:
Well, that's something that the United States has power to do.

[00:59:35] Speaker 02:
But in terms of the need of the refugee, I mean, heaven knows if you're on this court, we deal with

[00:59:41] Speaker 02:
asylum claims all the time.

[00:59:44] Speaker 02:
And if the point of seeking asylum, the point of being a refugee is to get out of a situation that is, we have defined as intolerable and unacceptable.

[00:59:58] Speaker 02:
If you get out, but you don't get to go to the United States, you get to go to Palau, how does that not satisfy the requirements imposed or adopted by Congress and the Refugee Act?

[01:00:10] Speaker 01:
Well, I would point, Your Honor, to the idea of family unity that's embedded into the Refugee Act that I was talking about earlier and how Congress specifically provided that when principal refugees have been resettled to this country that they're able to

[01:00:24] Speaker 01:
apply for their young children and spouses to come as well, their minor children and spouses.

[01:00:30] Speaker 01:
And Congress has privileged that as well as one of the highest priorities of the Refugee Act.

[01:00:35] Speaker 01:
And so, of course, if minor children and spouses were unable to rejoin their family members here, that would be contrary to the Refugee Act.

[01:00:43] Speaker 04:
So I want to make sure that I understand the answer.

[01:00:46] Speaker 04:
So if we were to tell the government that

[01:00:53] Speaker 04:
While it can ban entry, it can't eviscerate the Refugee Act by prohibiting people from continuing to apply for refugee status.

[01:01:06] Speaker 04:
The only consequence of that would be that we would have a large pool of people that we had approved as refugees against some future date when another administration decided to lift the ban and say, yes, we're now admitting refugees once again.

[01:01:21] Speaker 04:
But in the meantime, it would also have the consequence of perhaps prohibiting those people from pursuing other opportunities to go to other countries as refugees.

[01:01:32] Speaker 04:
Did I state that correctly?

[01:01:36] Speaker 01:
A couple of thoughts, Your Honor.

[01:01:37] Speaker 01:
So one is that it would allow people to continue to be processed here.

[01:01:42] Speaker 01:
And for some people, this is the only option, because they're reuniting with family who is here.

[01:01:46] Speaker 01:
And so they are waiting for the day when that suspension would be lifted.

[01:01:49] Speaker 01:
But in addition, it would preserve the infrastructure that has existed and that is necessary for the US refugee admissions program to operate.

[01:01:57] Speaker 01:
So without the processing centers that have been operated, for example, by some of our clients in this case, the organizational plaintiffs, there would be no processing.

[01:02:08] Speaker 01:
And of course, also it would preserve the infrastructure in the United States, the reception and placement program.

[01:02:15] Speaker 01:
And as I mentioned before, that infrastructure is serving both refugees on the one hand and also special immigrant visa.

[01:02:24] Speaker 01:
entrance from our Afghan and Iraqi allies.

[01:02:33] Speaker 01:
I see that I am well over my time and I want to make sure that my colleague has time as well.

[01:02:38] Speaker 01:
Thank you.

[01:02:57] Speaker 00:
Good morning, Your Honors.

[01:02:58] Speaker 00:
Melissa Keeney for the plaintiff's appellees.

[01:03:00] Speaker 00:
May it please the court?

[01:03:02] Speaker 00:
I wanted to start with arguments that defendants made today about the class certification and that that cannot justify the scope of the injunctions here.

[01:03:10] Speaker 00:
And that's simply wrong.

[01:03:12] Speaker 00:
The fact that the class was certified after the injunction was issued is not unprecedented.

[01:03:17] Speaker 00:
In fact, it happens in fast-moving cases such as this one.

[01:03:20] Speaker 00:
The court in Doe number 1 v. Trump addressed a very similar situation.

[01:03:26] Speaker 00:
There the class was provisionally certified after the injunction was issued, and the court wrote, quote, the scope of the injunction is appropriate at this juncture, regardless of whether or not it was when it was originally issued.

[01:03:38] Speaker 00:
And that's at 1069 of the opinion.

[01:03:40] Speaker 00:
So certainly CASA supports the idea that a universal injunction can be justified by class-wide

[01:03:47] Speaker 00:
relief and here we have a class and there's no reason for the court to ignore that fact.

[01:03:56] Speaker 00:
I also wanted to address some of the arguments that defendants made about irreparable harm.

[01:04:03] Speaker 00:
Here the district court made extensive factual findings about the irreparable harms facing the plaintiffs and

[01:04:09] Speaker 00:
We have, of course, refugees facing danger, families who are indefinitely separated, loss of critical services for those who have been resettled, including initial housing and other such services, and the organizations which have spent decades building the infrastructure and expertise

[01:04:25] Speaker 00:
to execute their faith-based missions to help resettle refugees.

[01:04:29] Speaker 00:
All of this is at risk.

[01:04:31] Speaker 00:
And today, defendants, they suggested that there is no irreparable harm because refugees are not guaranteed admission.

[01:04:37] Speaker 00:
But that is beside the point.

[01:04:39] Speaker 00:
Because, of course, plaintiffs don't argue that defendants certainly have discretion on whether or not to grant or deny admission in any individual case.

[01:04:49] Speaker 00:
But what plaintiffs challenge here is the categorical bar to their entry and to their processing.

[01:04:55] Speaker 00:
which certainly is causing devastating and irreparable harms at this time.

[01:05:00] Speaker 00:
Your honors mentioned the administrative stay that's in place and I did want to address that because it has of course prevented the orders from this court and the district court from taking effect for more than a month and it is urgent that this court lift that administrative stay as well as the other orders from the motions panel just given the significant and compounding irreparable harms that those orders are inflicting on the plaintiffs.

[01:05:29] Speaker 02:
I've had trouble figuring out

[01:05:31] Speaker 02:
how many people we're talking about with regard to the motion panel orders.

[01:05:38] Speaker 02:
I've heard 80, and I've heard 160, and I think I understand where those come from.

[01:05:46] Speaker 02:
How many more people would we be talking about if the order entered by the district court seeking to effectuate

[01:06:01] Speaker 02:
the motions panel order.

[01:06:03] Speaker 02:
How many people were we talking about that would need to be screened and so forth?

[01:06:09] Speaker 00:
Under the motions panel's latest order and the district court's order, we're talking about a little over 12,000 individuals, but that's really only a little over 4,000 refugee families.

[01:06:20] Speaker 00:
And the parties agree that as to the reliance interest determination that the motions panel required, that it would be on a family basis rather than an individual one.

[01:06:31] Speaker 00:
But we would submit that the court should, you know, if the court wants to retain some part of the stay and that it should be limited to the individuals who had travel booked that was then canceled but without the case-by-case reliance determinations because in these cases the reliance interests are self-evident and there's no reason for the court

[01:06:58] Speaker 00:
to require individual reliance determination.

[01:07:03] Speaker 04:
Okay, so your answer to Judge Clifton is, is it going to be 12,000 or is it going to be something smaller than that?

[01:07:11] Speaker 00:
It's about a little over 12,000 individuals.

[01:07:13] Speaker 04:
And the 12,000 people are people who have already been approved yet granted refugee status by the United States and they have travel documents or they did not have travel documents?

[01:07:24] Speaker 00:
They had travel scheduled.

[01:07:25] Speaker 00:
The way it works for refugees is they are not given travel documents until the moment of travel.

[01:07:30] Speaker 00:
So IOM schedules travel once a refugee has completed all processing and has been approved.

[01:07:36] Speaker 00:
And so this group of individuals had completed all those processing steps, had their travel arranged, and then their travel was abruptly canceled as a result of the executive order.

[01:07:47] Speaker 04:
So these 12,000 people, these people did have travel arranged.

[01:07:50] Speaker 04:
They just didn't have, they didn't have what, the ticket in hand?

[01:07:52] Speaker 00:
Refugees don't get a ticket in hand until they arrive at the airport.

[01:07:56] Speaker 00:
So take, for example, plaintiff Pesito, our lead plaintiff.

[01:08:00] Speaker 00:
He had travel arranged for January 22nd.

[01:08:02] Speaker 00:
He arrived at the transit center, and that's where they hand over their bags.

[01:08:05] Speaker 00:
They are prepared and brought to the airport, and that's when they would then receive their tickets.

[01:08:09] Speaker 04:
These 12,000 people, did they all have a date on which they knew they were to go to the airport?

[01:08:15] Speaker 00:
Yes, they did, Your Honor.

[01:08:19] Speaker 04:
And how far in the future, for these 12,000 people, how far in the future was that travel arranged?

[01:08:25] Speaker 04:
I mean, was it all in January?

[01:08:27] Speaker 04:
Was it all in February?

[01:08:28] Speaker 04:
Was some of it in March?

[01:08:29] Speaker 04:
Was some of it in June?

[01:08:31] Speaker 00:
The government's figures show that as much as 90% of the cases where travel was scheduled, that travel was scheduled to take place within a few weeks of the suspension, so largely in February.

[01:08:43] Speaker 00:
And this is from one of the declarations that the government submitted.

[01:08:45] Speaker 00:
It's at document 61.2.

[01:08:49] Speaker 00:
You know first and we also submitted declarations from individuals who had travel canceled where their travel may have been booked further out but for example one of our declarants described that in Thailand where he currently resides there's a mandatory two-month period of detention before a refugee is permitted to leave and so that travel was scheduled further out to accommodate that two-week mandatory detention period so there are all sorts of reasons that travel may be booked

[01:09:18] Speaker 00:
further out and doesn't in any way mean that the refugee family wouldn't have taken steps to uproot their lives and move across the world and clearly had relied on that promise of travel and would have taken actions as a result of that.

[01:09:44] Speaker 00:
Your Honor, what is at stake are the lives of thousands of refugees for whom Congress devised a careful plan for their effective resettlement that's been in place for 50 years, with the organizational plaintiffs collectively spending more than 100 years working in partnership with the government to help welcome them into local communities.

[01:10:04] Speaker 00:
With one stroke of his pen, the President has elected to dismantle it all, causing overwhelming and irreparable harm to refugees stranded abroad,

[01:10:12] Speaker 00:
their families who are awaiting reunification and the states and localities that have planned for their arrival Plaintiffs would respectfully request that this court immediately lift the administrative stay and permit the district courts injunctions to take full effect At minimum the court should preserve the injunctions for the individuals who had their travel arranged that was then abruptly canceled There are no further questions Thank you

[01:10:48] Speaker 05:
Thank you, Your Honors.

[01:10:48] Speaker 05:
I would just like to start briefly where my colleague ended, which is on the stays.

[01:10:52] Speaker 05:
We obviously believe the stays should be maintained until this Court reverses the preliminary injunction.

[01:10:59] Speaker 05:
The stay panel in this case has already said that the government is likely to succeed on the merits, much less the plaintiffs being able to show that for a preliminary injunction.

[01:11:07] Speaker 05:
And on the administrative stay, as plaintiffs just pointed out, the number jumps from about 80 to 12,000 if you push out and do what the district court is trying to impose.

[01:11:17] Speaker 05:
In the clarification orders from the stay panel, they made clear that this was not supposed to swallow the stay, that they were just looking at people like Pasito who were stranded in a transit place.

[01:11:27] Speaker 05:
And yet the district court issued a 23-page opinion saying that there are a bunch of rebuttable presumptions of people who obviously have reliance interests, and the government has to do six-page briefs in response to reject them in a very short timeline.

[01:11:40] Speaker 05:
It is unworkable, as this court has said in the stay panels, that they did not expect this to be covering 12,000 people, and that's exactly what plaintiffs are asking for.

[01:11:51] Speaker 05:
And so we believe that's contrary to what's already been decided.

[01:11:54] Speaker 05:
and is contrary to the likelihood of success on the merits here.

[01:11:58] Speaker 03:
Can you address Judge Bybee's suggestion that what's involved here are cooperative agreements, I guess, not procurement contracts, so they don't belong in the court of federal claims?

[01:12:08] Speaker 03:
I mean, similar issue arose, albeit a district court in D.C.

[01:12:11] Speaker 03:
I think it's the Catholic Bishops case, which I guess assumed

[01:12:15] Speaker 03:
Similar cooperative agreements belong in court of federal claims.

[01:12:17] Speaker 03:
I don't know if you've been involved in that case or the NIH or the California versus Department of Education.

[01:12:24] Speaker 03:
I don't know if you have a more global view, but can you respond to Judge Bybee's question on that?

[01:12:29] Speaker 05:
Yeah, I think it really depends on the type of remedy that they're asking for and the type of remedy that's being granted here.

[01:12:35] Speaker 05:
It's essentially to get the money paid out for these agreements, which is contractual in nature.

[01:12:39] Speaker 05:
I think otherwise that's, you know, what they're seeking here doesn't make sense unless it goes through the Court of Federal Claims.

[01:12:45] Speaker 05:
That's what the Catholic Bishops case said.

[01:12:47] Speaker 04:
That would only apply if your point is valid at all.

[01:12:50] Speaker 04:
That's only valid with respect to the organizational plaintiffs.

[01:12:53] Speaker 04:
It's not valid with respect to the refugees.

[01:12:55] Speaker 05:
I understood, Your Honor, and I'm talking about the organizational plaintiffs here.

[01:12:58] Speaker 02:
Has the government proposed another way to provide services to the individuals?

[01:13:03] Speaker 05:
Well, Your Honor, so far, at least with the individual named plaintiff who's before the court, Ali, they have provided the services.

[01:13:10] Speaker 05:
And I think if we're talking about scope of injunction here, for the people who have been admitted, it is possible for the government to provide the services for those who have been admitted within the 90 days.

[01:13:21] Speaker 05:
But the district went much further than that in violation of CASA and basically turned the... Let me go... I mean, what I was trying to pose is that

[01:13:31] Speaker 02:
I never saw anything that suggested how the services would be provided, but for the fact of the district court injunction requiring some provision.

[01:13:42] Speaker 02:
But it appeared that the orders issued by the departments said no more funding.

[01:13:49] Speaker 02:
So how would the services be provided?

[01:13:53] Speaker 05:
Well, I think they can still

[01:13:55] Speaker 05:
reengage with some of these groups to provide funding for individual refugees I think you know given the injunction that's essentially what's happened and one of the grants hasn't been terminated it hasn't been a blanket termination of every single grant so I do think it's still possible to provide these if that's required again you're saying provide enough funds for whatever eighty hundred whatever number is for those rather than turning on the entire speaker and it and it is your position though another alternate position that under the statute that these are discretionary so

[01:14:24] Speaker 03:
government could just refuse to provide the funds, but if they decide to then it will be just for the 80 to whatever the number may be.

[01:14:31] Speaker 05:
Correct, Judge Lee.

[01:14:31] Speaker 05:
I think two points.

[01:14:32] Speaker 05:
We read the statute as authorizing, so that's discretionary.

[01:14:36] Speaker 05:
This is lump-sum appropriation, so under Lincoln versus Virgil, we think that's committed to agency discretion.

[01:14:41] Speaker 05:
And Judge Bybee, to your point that there are a lot of ways that the Secretary can choose to carry out these programs,

[01:14:47] Speaker 05:
I think that that just proves that this entire scheme is subject to agency discretion and not reviewable under the APA.

[01:14:52] Speaker 04:
Sure, but to my colleague's questions, you don't get to just stop providing services.

[01:14:59] Speaker 04:
I quite disagree with the government on the fact that this is discretionary.

[01:15:04] Speaker 04:
That seems to be very, very clear in 1522.

[01:15:06] Speaker 04:
I just think you're wrong on that.

[01:15:08] Speaker 04:
So I'm going to telegraph my view on that one.

[01:15:11] Speaker 04:
The Secretary can provide that himself if he wishes to, but you're probably going to have to provide some of these services.

[01:15:18] Speaker 04:
He has chosen to do it in the past through cooperative agreements.

[01:15:22] Speaker 04:
I don't – I'm not sure that these organizations have standing to come in and say it has to be us, but you're going to have to provide them.

[01:15:32] Speaker 04:
Now, I don't know how – I'm not sure how many people there are for this to be provided.

[01:15:36] Speaker 04:
You represented in one of the status reports that the government was soliciting additional proposals for cooperative agreements.

[01:15:44] Speaker 04:
What's the status of that?

[01:15:46] Speaker 05:
I don't know the current status of that.

[01:15:47] Speaker 05:
I think because of the injunction that there is services being provided.

[01:15:50] Speaker 05:
I believe that's what plaintiffs said.

[01:15:53] Speaker 04:
You told us in the status that I believe this is, well, it was several months ago that you expected that to be completed within three months.

[01:16:00] Speaker 04:
So as far as you know, nothing's been done.

[01:16:02] Speaker 05:
I don't I don't think that's true.

[01:16:04] Speaker 05:
I do think some services have been provided including but not through but you have not entered into an additional Cooperative agreement, which is what you were representing to the district court in the status I'm just unaware of the precise status of that your honor we may have I Just want to also take a step back to say that in about a month

[01:16:24] Speaker 05:
The cap will be reset and there will be new funding.

[01:16:27] Speaker 05:
So a lot of this is going to change in that time.

[01:16:29] Speaker 05:
And that doesn't mean that this is permanent because they terminated the current cooperative agreements.

[01:16:33] Speaker 05:
There will be different money allocated based on the different cap, probably taking into the 1182F suspension right now.

[01:16:40] Speaker 05:
And the president, contrary to what plaintiffs say, isn't just ignoring the Refugee Act consultation.

[01:16:44] Speaker 05:
There is consultation that is ongoing to make these sort of determinations.

[01:16:47] Speaker 05:
That is a process that's still going on.

[01:16:49] Speaker 05:
Also, contrary to what plaintiffs said, the processing is not just completely shut down and completely gone.

[01:16:55] Speaker 05:
Again, we're still doing the processing for the people that are in the carve-out and for people who have met the exemptions.

[01:17:01] Speaker 05:
So, you know, the regulations, that process, it doesn't just disappear because they've halted processing additional people who aren't subject to those exemptions.

[01:17:09] Speaker 05:
It's not just like it disappears, we have to restructure everything.

[01:17:11] Speaker 05:
The regulations still exist.

[01:17:13] Speaker 05:
The way of doing it still exists.

[01:17:15] Speaker 05:
They're still processing people right now for the refugees from Afghanistan and other places.

[01:17:19] Speaker 05:
So it's not that it's just completely gone and off the books.

[01:17:22] Speaker 02:
Who's doing the processing?

[01:17:24] Speaker 02:
I mean, to the extent that the organizations are involved in some of it, has somebody been tasked with filling in?

[01:17:31] Speaker 05:
I think the State Department's officials are the ones who do the processing for refugee applicants before they arrive.

[01:17:37] Speaker 05:
And so that can continue.

[01:17:40] Speaker 05:
Before they arrive?

[01:17:41] Speaker 05:
Right, before they arrive.

[01:17:42] Speaker 05:
What happens after they arrive?

[01:17:44] Speaker 05:
I mean, I think to the extent the injunction and that there's still a cooperative agreement, those benefits exist.

[01:17:49] Speaker 04:
And if we reversed the injunction on all bases, those cooperative agreements would all be canceled and no further services would be provided to the refugees who were in the United States.

[01:18:01] Speaker 05:
That would currently be the case if it was a full reversal, Your Honor, and we believe that that's required based on the statute in the APA.

[01:18:08] Speaker 05:
But yes, if that is a full reversal, that would be the result.

[01:18:11] Speaker 05:
I also just want to point out that on the discussion of 1182F, there was a lot of discussion of policies, but not a lot of discussion at the text.

[01:18:18] Speaker 05:
If you look at subsection C3 of the Refugee Act, Congress knew about the admissibility bars in 1182.

[01:18:25] Speaker 05:
It cross-referenced them.

[01:18:26] Speaker 05:
It explicitly excluded some like the public charge from being a bar for refugees.

[01:18:31] Speaker 05:
It did not exclude 1182F.

[01:18:33] Speaker 05:
Congress knows about it.

[01:18:34] Speaker 05:
They understood that this was an additional temporary ability of the president to suspend.

[01:18:39] Speaker 05:
And the fact that the Refugee Act has a lot of detailed regulations and laws and rules about how refugees

[01:18:45] Speaker 05:
are admitted doesn't take that out of 1182F.

[01:18:48] Speaker 05:
That's true of many, many visas, but there have been over 40 proclamations under 1182F over many presidents that have dealt with suspending visas, including visas for students from China that also have very detailed regulations, very detailed statutes.

[01:19:07] Speaker 05:
The fact that there's a detailed congressional statute does not mean that 1182F does not apply.

[01:19:13] Speaker 05:
And finally, I just want to talk a little bit about the actual plaintiffs are here in response to the class action point.

[01:19:18] Speaker 05:
The government completely disagrees.

[01:19:19] Speaker 05:
The plaintiffs that are before this court are the ones that were at issue and that the PI was granted for and that we took on appeal.

[01:19:25] Speaker 05:
Once we took that PI on appeal, the district court lost its jurisdiction to modify or change anything about that PI.

[01:19:32] Speaker 05:
The plaintiffs that exist, one of them, Ali, is the only individual plaintiff with the issues with the resettlement funding here.

[01:19:38] Speaker 05:
That's moot.

[01:19:38] Speaker 05:
He's been paid out.

[01:19:40] Speaker 05:
The only ones with the family issue is Esther and Josephine.

[01:19:42] Speaker 05:
They've been admitted, so that's moot.

[01:19:44] Speaker 05:
But even so, plaintiffs ignore the fact that the statute on

[01:19:48] Speaker 05:
family admittance says that they also have to be admissible separately.

[01:19:52] Speaker 05:
So the 1182 F bar still applies.

[01:19:54] Speaker 05:
And as Your Honor Judge Bybee pointed out, the cap sometimes doesn't allow family members to get in.

[01:19:59] Speaker 05:
That's why some of these people were waiting for years and years later.

[01:20:01] Speaker 04:
So with respect to the class certification, if we thought that the class certification was a nullity, and if the government didn't win everything here, then what would happen?

[01:20:11] Speaker 05:
I think we would remand.

[01:20:12] Speaker 05:
There would be an opportunity for the class certification and to figure out how that changes the issues where maybe there is a mootness problem or a lack of a plaintiff versus... The district court would have to redo all the class certifications.

[01:20:24] Speaker 05:
The class certification is not on appeal, so I'm not sure about that, but I don't think this PI can stand based on the class certification.

[01:20:32] Speaker 05:
I don't think the scope of the PI, I don't think the party standing can justify this PI.

[01:20:38] Speaker 05:
That's sort of the point I'm making.

[01:20:40] Speaker 05:
Because the class certification is not currently on appeal, he might have jurisdiction over that by itself, but it doesn't justify the PI that's before the court here.

[01:20:48] Speaker 05:
And talking about the Afghan and Iraqi group that aren't refugees, I don't believe that that was briefed or an issue in this PI.

[01:20:56] Speaker 05:
I think that's an issue with the class certification below, but I don't think that's an issue for this appeal.

[01:21:00] Speaker 05:
And so that's just sort of adding additional problems here.

[01:21:04] Speaker 05:
And as far as the reparable harm for the organizational plaintiffs, which we agree, Judge Bybee, that we don't think they have standing, but the D.C.

[01:21:13] Speaker 05:
Circuit just yesterday came out with a case, Climate Fund versus Citibank, that dealt similarly with a bunch of grant terminations and an attempt by organizations to say, oh, this is an APA case because they're just shutting down these programs.

[01:21:25] Speaker 05:
And the DC Circuit said, no, you have to go through the Tucker Act.

[01:21:27] Speaker 05:
You have to go through the Court of Federal Claims, because these are really contract claims.

[01:21:31] Speaker 05:
And to irreparable harm, the plaintiffs made very similar arguments to what they're making here, that we rely on these government funds, and without them, we're going to shut down.

[01:21:39] Speaker 05:
And the DC Circuit says,

[01:21:41] Speaker 05:
loss of money, loss of grant funds, is typically not an irreparable harm.

[01:21:44] Speaker 05:
And the fact that you've decided to make your organization completely dependent on government largesse does not give you an irreparable harm.

[01:21:50] Speaker 02:
So we don't think there's an irreparable harm here either for- But that case, like most of the others, seems different to the extent that unless we accept your position that 1522 is discretionary, and that doesn't seem like the most powerful position.

[01:22:08] Speaker 02:
If we don't accept that,

[01:22:09] Speaker 02:
then we do have a statutory mandate that says the government must provide some services.

[01:22:14] Speaker 02:
That would seem to distinguish this case from the one you just cited, or most of the other cases offered up to us.

[01:22:21] Speaker 05:
I think maybe that's true for the individual plaintiffs who get the benefits.

[01:22:24] Speaker 05:
I don't think that's true for the organizational plaintiffs.

[01:22:26] Speaker 05:
I think they're in the exact same boat making the exact same arguments, and especially that's true for irreparable harm.

[01:22:31] Speaker 02:
Except we're back in the circle that we've touched on before, and I don't need to elaborate upon it.

[01:22:38] Speaker 02:
But if the government doesn't have another plan to provide services they're mandated to provide, what else are we left with?

[01:22:47] Speaker 05:
Again, Your Honor, I think that's committed to agency discretion.

[01:22:50] Speaker 05:
Even if we accept that the statute sort of requires something, that something's up to the agency.

[01:22:55] Speaker 02:
Is the government offered up any way it's going to provide those services?

[01:22:58] Speaker 05:
I think currently, as Judge Bybee pointed out, there are plans to reinitiate some of those cooperative agreements.

[01:23:03] Speaker 05:
I don't know where that process is, but I think there are a lot of options.

[01:23:06] Speaker 02:
The problem with that is that suggests that the cooperative agreements in place are what they're going to lean on.

[01:23:12] Speaker 02:
So why do we disregard that?

[01:23:13] Speaker 02:
If they haven't offered an alternative and we conclude they're required to provide these services to the individual plaintiffs, how are you going to do that without having the organizations involved?

[01:23:28] Speaker 05:
Well, Your Honor, I think if we get down the path of you disagree that the statute is discretionary, you disagree that there's any bars to the APA review, and you think there has to be some sort of ability to order

[01:23:45] Speaker 05:
the resources be issued.

[01:23:47] Speaker 05:
I think the way to do it is to do it by the individuals who are admitted in, just order that the government has to provide those resources.

[01:23:54] Speaker 05:
They've done so for the named plaintiff here.

[01:23:55] Speaker 05:
They can do so through cooperative agreements or other ways going forward.

[01:23:59] Speaker 05:
But that doesn't justify the sweeping scope in violation of CASA that the district court did, which was just to turn on all the spigots again.

[01:24:05] Speaker 05:
And again, in 30 days, the funding and the cap is going to be reset.

[01:24:09] Speaker 05:
And so we're in a whole different world on what's possible then.

[01:24:11] Speaker 05:
I think it's a bit premature to say that we need to return all the funding in this case because of an individual plaintiff.

[01:24:19] Speaker 05:
If there are any further questions.

[01:24:21] Speaker 03:
Okay, great.

[01:24:22] Speaker 03:
Thank you.

[01:24:22] Speaker 03:
I think we set a record for going over time, but it was very useful.

[01:24:26] Speaker 03:
Again, thank you for the excellent advocacy by everyone.

[01:24:29] Speaker 03:
The case has been submitted.

[01:24:30] Speaker 03:
We are adjourned.

[01:24:32] Speaker 06:
All rise.

[01:24:44] Speaker 06:
this court for the session stands adjourned