[00:00:06] Speaker 01: Good afternoon, Your Honor. [00:00:07] Speaker 01: Sarah Welch for the United States. [00:00:10] Speaker 01: I'd like to reserve. [00:00:10] Speaker 01: I'm just going to change chairs. [00:00:12] Speaker 02: This one's higher than that one. [00:00:18] Speaker 02: Not being able to see who's talking. [00:00:32] Speaker 02: All right. [00:00:33] Speaker 02: Thank you. [00:00:35] Speaker 02: Okay. [00:00:36] Speaker 01: Good afternoon. [00:00:37] Speaker 01: Sarah Welch for the United States. [00:00:39] Speaker 01: I'd like to reserve four minutes for rebuttal. [00:00:41] Speaker 02: All right. [00:00:42] Speaker 01: Watch your clock. [00:00:43] Speaker 01: Thank you. [00:00:44] Speaker 01: May it please the Court. [00:00:45] Speaker 01: The Supreme Court has already twice intervened in this case to permit the Secretary's decisions to terminate TPS for Venezuela to take effect. [00:00:54] Speaker 01: Those decisions provide ample reason for the Court to reevaluate its decisions in the case thus far, and the Court should now reverse. [00:01:02] Speaker 01: The TPS statute is skewed at several points toward termination of TPS designations. [00:01:07] Speaker 01: Instead of permitting an indefinite designation, Congress limited the length of extensions or designations. [00:01:13] Speaker 01: It required periodic review to ensure designation is still warranted. [00:01:17] Speaker 01: And if the Secretary concludes that a designation no longer meets the statutory criteria, the statute requires her to terminate the designation. [00:01:26] Speaker 01: When Secretary Mayorkas acted at the 11th hour to exceed the length limitations on an extension and took the novel step of consolidating off-cycle TPS terminations to effectively grant an unlawful extension of the 2021 Venezuela termination, excuse me, Venezuela designation, the Secretary appropriately vacated that extension well before its effective date. [00:01:47] Speaker 01: Congress also limited judicial review in the TPS statute, recognizing that TPS designations, extensions, and terminations involve core executive branch prerogatives in matters of foreign policy, diplomacy, and national security, which are classic areas in which the judicial branch is ill-suited to second-guess the political branches. [00:02:06] Speaker 01: Concluding that the risks of judicial review outweigh the risks of executive branch error, Congress provided that there is, quote, no judicial review of any determination of the secretary with respect to the designation or termination or extension of a designation. [00:02:21] Speaker 01: The district court mistakenly declined to give that limitation effect when it reviewed the three determinations regarding the extension or termination of TPS designations. [00:02:29] Speaker 01: A subsequent decision in the passage of time has now mooted the Haiti portion of that decision. [00:02:34] Speaker 01: So just two of those conclusions with respect to Venezuela are before the court now. [00:02:39] Speaker 01: I'd welcome any questions the court has. [00:02:40] Speaker 01: Otherwise, I'd like to begin with the bar on judicial review. [00:02:45] Speaker 02: All right. [00:02:46] Speaker 02: Would you just begin with, I just want to understand why you believe, what language in the Supreme Court stay orders you believe actually affect [00:02:59] Speaker 02: this case. [00:03:01] Speaker 01: Sure, Your Honor. [00:03:02] Speaker 01: The Supreme Court applies the winter test to evaluate whether to grant a stay in any case. [00:03:09] Speaker 01: The factors in winter and a can require consideration of whether the government is likely to succeed on the merits of a subsequent appeal and whether a case likely merits Supreme Court review. [00:03:21] Speaker 01: In order to grant its stay, then, the Supreme Court must have considered the likelihood of success on the merits and concluded that the government was likely to succeed on the merits. [00:03:29] Speaker 01: I'd highlight two pieces of that. [00:03:31] Speaker 01: One is that we didn't defend on the merits against the plaintiff's arbitrary and capricious claims. [00:03:36] Speaker 01: We presented only the 1254A, B5A review bar as our argument. [00:03:41] Speaker 01: So the Supreme Court must have concluded in order to grant a stay that we were likely to succeed on the merits of that claim. [00:03:46] Speaker 01: And our only argument with respect to the vacator, with respect to the statutory authority claim in particular, was that the secretary did have the statutory authority to vacate the Venezuela extension just a few days after it was entered. [00:04:00] Speaker 01: So the Supreme Court, again, must have concluded that we were likely to succeed on the merits of that claim. [00:04:05] Speaker 01: Whether or not it provided reasoning, published an opinion, we don't think affects whether it considered that, and thus the effect of its decision on this court. [00:04:14] Speaker 04: The court itself has, at least not to this point, stood on such a summary order as precedential. [00:04:24] Speaker 04: This is distinguishable from the Boyle-Wilcox pair. [00:04:29] Speaker 01: I think the two decisions in this case represent their own pair where the Supreme Court treated its first stay order in this case as effectively controlling its second stay decision when it said the party's arguments and their relative positions remain the same. [00:04:44] Speaker 01: And so the same result was warranted. [00:04:48] Speaker 01: So I do think it's treated the first NTPSA stay decision as effectively controlling the second one in the same way that Wilcox effectively controlled Boyle. [00:04:58] Speaker 04: But what part of it? [00:05:00] Speaker 04: I mean, it could be they were playing the end-kin factors. [00:05:04] Speaker 04: Is it possible that the Supreme Court could have decided the equities were so one-sided, given the executive action and deference to that branch that that controlled? [00:05:13] Speaker 04: How do we know to what extent these prior decisions were about the equities rather than the merits? [00:05:19] Speaker 01: Just based on the four factor test that the court considers, that it's described as controlling its decisions, one of those factors being the likelihood of success on the merits. [00:05:31] Speaker 04: Right, but they're not elements, right? [00:05:32] Speaker 04: They're factors. [00:05:33] Speaker 04: So the court itself hasn't told us that it was how it came out on each of those factors. [00:05:41] Speaker 04: All we have is that you fed in these four factors into [00:05:45] Speaker 04: the Supreme Court in your arguments, and it came out saying somehow that those factors work in that. [00:05:50] Speaker 01: I believe the Supreme Court has said that the likelihood of success on the merits is typically the most important factor, so I think it would be unusual to think that it hadn't evaluated that factor at all in reaching its conclusion. [00:06:01] Speaker 01: It's true that it hasn't provided us with analysis on how it applied each of those factors. [00:06:07] Speaker 01: But we do think that the court should certainly take into account the Supreme Court's two interventions in this specific case as it evaluates. [00:06:16] Speaker 01: I would also like to speak to the plaintiff's lead argument in their brief that this panel's previous decision should control as a matter of precedent in this decision. [00:06:27] Speaker 01: We think that's incorrect for a couple of reasons. [00:06:29] Speaker 01: One, of course, we still have a pending motion for this court to vacate its prior decision. [00:06:34] Speaker 01: We think the most orderly way to proceed [00:06:35] Speaker 01: would be to rule on that motion, grant that motion, and vacate the previous decision since it became moot well before we had the opportunity, just a few business days after it issued, well before we had the opportunity to seek further review. [00:06:47] Speaker 01: So the most orderly way to proceed would be to grant that motion and then proceed to address this one, even if the court declined to do that or didn't consider the vacant or motion before ruling in this case. [00:06:57] Speaker 02: Wasn't that just, didn't briefing just conclude on that motion? [00:07:02] Speaker 01: I believe it was a few weeks ago. [00:07:05] Speaker 01: I don't recall the exact date. [00:07:08] Speaker 01: But, yeah, I do think the most orderly way to proceed would be to rule on that motion before proceeding to rule on this case. [00:07:16] Speaker 04: How is, I guess, the question about how the, I guess, the Munsingware doctrine or the analogy would apply to vacating the prior motion, there isn't a, [00:07:33] Speaker 04: Is our first order, our preceding order, technically moot? [00:07:39] Speaker 04: Is that the right term for it? [00:07:42] Speaker 01: I think the case has become moot. [00:07:43] Speaker 01: That's how I would describe it. [00:07:45] Speaker 01: So an attempt to seek on bank reversal or Supreme Court review of the opinion would no longer be possible because the case is now moot. [00:07:54] Speaker 01: And so the court has in at least three decisions that we cited in our briefing on that motion has decided to vacate an issued panel opinion when the case became moot. [00:08:06] Speaker 04: But it usually happens the other way, right? [00:08:10] Speaker 04: here in the middle and the Supreme Court, something happens that moots the case between us and the Supreme Court, and the Supreme Court then, Muncie Moore says, well, the Court of Appeals probably ought to vacate that. [00:08:21] Speaker 04: But in this case, the operation of mootness is coming from the district court now, right? [00:08:28] Speaker 04: So do we have any cases telling us that the mootness is the right way to think about it? [00:08:33] Speaker 04: District court simply going ahead, I don't think there's any question at a jurisdiction to do so, going ahead and wrapping up [00:08:40] Speaker 04: the case in its own time before you've had the opportunity. [00:08:45] Speaker 04: I think we've seen petitions for rehearing on a faster turnaround than a week, but before you did file your petition for rehearing. [00:08:52] Speaker 04: Why is that [00:08:53] Speaker 04: covered by mootness when Muncie worries more about us in the Supreme Court. [00:08:56] Speaker 01: Yeah, just a couple points. [00:08:57] Speaker 01: First, even if we had been able to obtain authorization, draft a petition, and file it in the three or four business days before the district court entered final judgment after this court's August 29th ruling, the full court likely wouldn't have been able to rule on that petition or even receive a response to that petition. [00:09:14] Speaker 01: In addition, we didn't have any reason to believe that we would need to file a petition 41 days before the due date in order to preserve our ability to continue to seek review of that decision. [00:09:25] Speaker 01: As to whether mootness is the right way to think about that, I don't have a case handy, but I believe we cited it in our papers in number 252120, indicating that it's well established in this court's precedent that when a final judgment is entered, that does moot [00:09:40] Speaker 01: the appeal of the interim relief. [00:09:43] Speaker 01: So I do think mootness is the right way to think about that. [00:09:45] Speaker 01: And there's no question that we've adequately guarded ourselves against mootness to the greatest extent we could. [00:09:50] Speaker 01: We repeatedly asked the district court to stay its proceedings through the resolution of the appeal, which would include any en banc review or Supreme Court review. [00:09:59] Speaker 01: And of course, we didn't ask the district court to rule against us in entering final judgment. [00:10:02] Speaker 02: I think the judgment is merged into one, but I don't think it makes the opinion move. [00:10:09] Speaker 02: And that's, so, but that's for, we're gonna have to have oral argument on that probably. [00:10:17] Speaker 01: Your Honor, we would be happy to appear for oral argument. [00:10:20] Speaker 01: I do recognize that's in a different case, so it's a little funny to talk about it here. [00:10:24] Speaker 01: The other points I wanted to make about whether the panel's previous decision should control here is that it was an earlier stage of the case. [00:10:33] Speaker 04: Isn't that in tension with the argument you just led with? [00:10:36] Speaker 04: The Supreme Court's decisions were in earlier stages of the case. [00:10:42] Speaker 04: Supreme Court applying the end-kin factors and or winter factors at a different stage of the case, that that should control us. [00:10:53] Speaker 04: But then when we applied the end-kin factors and winter factors at a different stage of a case, that that shouldn't control us. [00:11:02] Speaker 01: Your Honor, our position is that the Court should evaluate, should give weight to the Supreme Court's evaluation of the likelihood of success on the merits. [00:11:11] Speaker 01: That's at least germane, even if it's not now precisely the same question that's before the Court, which is actual success on the merits. [00:11:17] Speaker 01: The fact that the Supreme Court has chosen to twice weigh in and ruled in the government's favor on that factor, we think should at least be germane to the Court's decision. [00:11:25] Speaker 04: So in previous stages... And the same would be true of our prior decision in here. [00:11:30] Speaker 04: germane to our decision now. [00:11:32] Speaker 01: Certainly, Your Honor. [00:11:34] Speaker 01: It doesn't formally control as a matter of precedent the court's previous decision, which I believe is the other side's position, although, of course, they can clarify that. [00:11:44] Speaker 01: All right. [00:11:45] Speaker 02: Let's get to jurisdiction. [00:11:46] Speaker 01: Yes, Your Honor. [00:11:47] Speaker 01: Thank you. [00:11:48] Speaker 01: So we think that both the vacator and the termination are determinations with respect to an extension or a termination of TPS. [00:11:57] Speaker 01: So the plain language meaning of determination is just a decision. [00:12:03] Speaker 01: So the secretary made a decision. [00:12:05] Speaker 01: It was any decision, that's a broadening term, and it was certainly with respect to an extension. [00:12:10] Speaker 01: A vacator of an extension is a decision with respect to an extension, and a termination is certainly a decision with respect to a termination. [00:12:18] Speaker 01: In support of that, I would particularly direct the court to a provision of the statute that we cited in our reply brief, subsection D3, which requires the secretary to publish notice of the determination, which is clearly using that word in the meaning of her decision. [00:12:34] Speaker 01: She's supposed to publish notice of her decision. [00:12:37] Speaker 01: As to the sort of presumption of consistent usage argument that the plaintiffs have pressed in their brief, we just don't think that that holds up as a way of reading the statute. [00:12:48] Speaker 01: Subsection B doesn't use determination to refer only to country conditions since it also covers a national interest determination. [00:12:59] Speaker 01: Subsection B uses finding and determination interchangeably even when it is clearly referring to country conditions. [00:13:05] Speaker 01: And determination isn't a distinctive or defined term in the TPS statute that's likely to have picked up a specialized meaning. [00:13:12] Speaker 01: It's also used elsewhere in Section 1254A itself to refer to things that clearly aren't about country conditions, such as a determination about whether a particular individual is eligible for TPS. [00:13:22] Speaker 01: So we just don't think that the plaintiff's reading of determination to create the sort of specialized meaning for one particular subsection of the statute [00:13:31] Speaker 01: when it's an extremely commonly used term and is used in other sections of the statute inconsistently with that meaning, we just don't think that that holds up. [00:13:40] Speaker 01: Even if the district court were right that it refers only to [00:13:44] Speaker 01: to the subset of decisions that the plaintiffs are pressing. [00:13:49] Speaker 01: The plaintiffs aren't challenging a general procedure or a collateral practice here. [00:13:53] Speaker 01: They're challenging one specific decision, two, with respect to one specific country. [00:13:59] Speaker 01: They haven't cited anything that could count as a final agency action. [00:14:02] Speaker 01: separate from those. [00:14:04] Speaker 01: And the relief that they're seeking is to set aside the determinations. [00:14:07] Speaker 01: That's the relief that the district court entered. [00:14:09] Speaker 01: So it's hard to see how they're not seeking judicial review of a determination as opposed to some freestanding collateral practice like the procedural due process issues that were at issue in McNary. [00:14:22] Speaker 01: So we just don't think that the reading of the statute holds up to the statutory text itself. [00:14:27] Speaker 01: As for Section 1252 F1, just a couple of points on that. [00:14:31] Speaker 01: One is that the plaintiffs and the district court haven't given a meaning to the second term in the phrase enjoin or restrain. [00:14:40] Speaker 01: And I would also point out that the [00:14:44] Speaker 01: The panel's previous opinion treated this section 1252 F1 question as controlled by immigrant defenders. [00:14:53] Speaker 01: That decision was in the 705 posture, and as far as I'm aware, there's no decision specifically on the section 706 posture. [00:15:00] Speaker 01: So the previous reasoning in the panel's opinion wouldn't cover this section 706. [00:15:06] Speaker 04: Why would that matter? [00:15:08] Speaker 01: There are two different forms of relief. [00:15:12] Speaker 01: So Section 705 gives its own criteria for what it is, what it does. [00:15:17] Speaker 04: Isn't 705 more, I took it, this was the government's argument the first round, more like an injunction than a 706 vacater? [00:15:28] Speaker 01: I'd make two points about that. [00:15:32] Speaker 01: One, Section 705 ruling certainly is functionally indistinguishable from a preliminary injunction. [00:15:37] Speaker 01: It's a very familiar form of relief that the same factors apply. [00:15:43] Speaker 02: Are set asides injunctions? [00:15:46] Speaker 01: Your Honor, the district court made the conclusion in our post-judgment briefing that it was, it did count as an injunction for purposes of Rule 62 for the effective date of the judgment. [00:15:58] Speaker 01: So that particular decision, I think, cuts strongly in our favor as through Section 1252 F1 arguments. [00:16:06] Speaker 01: The other point is that [00:16:07] Speaker 01: We now have the district court's decision to enforce the judgment, its conclusion that compliance with the judgment required DHS to update its website and actually to reopen its registration portal. [00:16:19] Speaker 01: So even if there were doubt at the interim relief stage about whether this was truly an injunction or a restraint on the government, those subsequent developments should make this a particularly easy case to see why section 706 relief should fall within the 1252 F1 bar. [00:16:37] Speaker 03: Ms. [00:16:37] Speaker 03: Welch, I did have a question. [00:16:39] Speaker 03: I wanted to turn to a question I asked previous counsel. [00:16:45] Speaker 03: What we were to do with the many statements made by the secretary, arguably indicating animus towards Venezuela. [00:16:53] Speaker 03: He pointed me to Trump versus Hawaii, which in his mind indicated that we cannot consider statements made by the secretary and the president when they were not in office. [00:17:05] Speaker 03: I've read that case and I don't know if it stands for that proposition. [00:17:09] Speaker 03: Is the governance position still that point and that that's the authority or are there other authorities that you want me to consider? [00:17:18] Speaker 01: Your Honor, I think that would be the principal authority for that point. [00:17:22] Speaker 01: I do think that in the posture of this case, at final judgment, the district court, or partial final judgment, the final judgment is partial because the district court hasn't resolved the equal protection anonymous claims. [00:17:33] Speaker 01: So I think that issue has less relevance at this stage of the case than it did at the Section 705 posture where the district court had granted interim relief in part based on the equal protection claims. [00:17:45] Speaker 03: Well, let's assume that [00:17:48] Speaker 03: There's an argument that the secretary exceeded her authority and that perhaps that it was arbitrary and capricious, the decision. [00:18:01] Speaker 03: If the court would define that, then I have to consider those statements, wouldn't I? [00:18:07] Speaker 01: Your Honor, I don't believe that that formed part of the district court's partial final judgment. [00:18:12] Speaker 01: So I don't think that that would be a basis for affirming the district court. [00:18:17] Speaker 01: I think that would require a remand in this posture for the district court to pass on that ground. [00:18:25] Speaker 03: Am I wrong in remembering that the district court pointed out the long list of statements made by the Secretary and the President himself? [00:18:35] Speaker 03: on addressing the issue of animus? [00:18:39] Speaker 01: Your Honor, I don't believe anything in the district court's decision turned on that. [00:18:43] Speaker 01: And I don't believe that the district court has made any findings on the animus claims in this posture, other than to deny our motion for summary judgment in our favor on those claims. [00:18:52] Speaker 01: Of course, that denial isn't before the court in this posture. [00:18:55] Speaker 03: OK. [00:18:56] Speaker 03: But your ultimate answer, is my understanding, is that you're standing on that case. [00:19:03] Speaker 01: Your Honor. [00:19:05] Speaker 01: I think we would request the opportunity to brief those issues if the court is intending to rely on any equal protection claims or findings of animus in this posture. [00:19:16] Speaker 01: I do think I stand by our reading of Trump v. Hawaii that statements before the president came into office were not relevant. [00:19:27] Speaker 03: All right. [00:19:27] Speaker 01: Thank you. [00:19:28] Speaker 01: I'd also point to regents in support of that point as well. [00:19:36] Speaker 01: I see I'm very near the end of my time, so I'll reserve whatever's left through that. [00:19:40] Speaker 02: Thank you. [00:20:04] Speaker 00: Good afternoon, Your Honors. [00:20:06] Speaker 00: Ahilan Arlanandam from the UCLA Center for Immigration Law and Policy for the National TPS Alliance and the individual plaintiffs. [00:20:13] Speaker 00: I'd like to start with the point about the Supreme Court stay orders in this case. [00:20:17] Speaker 00: They're not precedent because the Supreme Court does not treat them as precedent as to itself. [00:20:22] Speaker 00: It stays orders and then affirms them. [00:20:25] Speaker 00: It also declines the stay orders and then reverses them. [00:20:29] Speaker 00: And we cite examples right at the opening of our brief. [00:20:33] Speaker 00: No lower court also has ever treated [00:20:36] Speaker 00: the state orders as themselves presidential. [00:20:39] Speaker 00: The government cites this case from the Fourth Circuit, Casa v. Trump. [00:20:42] Speaker 00: That case is reversed on bank, if you look at the Westlaw flag in it. [00:20:46] Speaker 00: I'm not aware of any court which has said that you can treat these [00:20:49] Speaker 00: You know orders as as presidential Beyond that We read what what you were saying judge Johnson on this subject Even that they described even the winter or they're not exactly winter. [00:21:01] Speaker 00: It's it's a deviation from that as a guide to what they're doing and the internal logic of these orders does not prove that there's no jurisdiction over this claim and [00:21:12] Speaker 00: If you were going to try to read tea leaves and divine from them, which is quite difficult to do, but if you were going to do it, the second paragraph of the first postponement order, which we actually discussed last time, suggests that there is a claim that we can make that it's illegal for the government to retroactively invalidate already issued documents. [00:21:33] Speaker 00: That is a claim about the statutory authority, which would suggest at least that the first order claims, as you all described them last time, would be cognizable on jurisdiction. [00:21:44] Speaker 00: I should add, that claim is affirmed. [00:21:47] Speaker 00: We won on that claim in a subsequent 705 motion. [00:21:50] Speaker 00: It's affirmed in the summary judgment order here. [00:21:52] Speaker 00: The government has said nothing about it. [00:21:53] Speaker 00: I still don't know whether they think there's jurisdiction. [00:21:55] Speaker 00: over that claim or not, and how to reconcile the fact that they've never appealed it or challenged it in any way with their jurisdictional position, the completely intention with each other. [00:22:05] Speaker 00: Beyond that, there's also a constitutional claim there, which you would imagine the Supreme Court did not reverse on jurisdiction. [00:22:11] Speaker 00: So I think it may be possible that there was no single rationale. [00:22:13] Speaker 00: And rather than guessing, you just have to apply the law as it is. [00:22:18] Speaker 00: On the vacatur, Your Honor, [00:22:22] Speaker 00: I actually was prepared, so we could talk about it now or talk about it later. [00:22:26] Speaker 00: I'll just say very briefly and then happy to answer more questions about it if it makes sense. [00:22:32] Speaker 00: It's not jurisdictional because this court's decision was not moot when it was published. [00:22:38] Speaker 00: And that's the rule. [00:22:39] Speaker 00: The on-bank case is Dixon v. Ryan. [00:22:41] Speaker 00: And if it's at the time that it's published, it's still live, then there's no Article 3 problem. [00:22:48] Speaker 00: And instead, we're in the question of equities. [00:22:50] Speaker 00: Of course, you have the equitable power to take back your opinion if you want. [00:22:55] Speaker 00: But they have quite unclean hands when it comes to the equities of that, because what they told the district court to do was to wait until the Ninth Circuit rules. [00:23:06] Speaker 00: And now if I understand their argument today, they're saying, well, what we meant by that was when you rule and if there's an on-bank, then when the on-bank happens, and then presumably under the logic of their argument, if the on-bank panel rules in like a year or something, then wait for the Supreme Court. [00:23:20] Speaker 00: And the logic of that doesn't make any sense. [00:23:23] Speaker 00: I mean, often it's true that published decisions in preliminary relief contexts become the law of the circuit. [00:23:29] Speaker 02: So I have a question that you brought to my mind. [00:23:32] Speaker 02: I don't know if somebody? [00:23:34] Speaker 02: At some point in February, is it? [00:23:38] Speaker 02: Will this, aspects of this case actually become moot? [00:23:44] Speaker 00: Quite possibly, Your Honor. [00:23:45] Speaker 00: Not, I don't think in, well, I'm not sure about all the aspects, but the Haiti portion, whether or not it's moot, they want to withdraw their appeal from the district court order. [00:23:55] Speaker 00: We have no objection to that. [00:23:56] Speaker 00: If they want to withdraw it, that's fine. [00:23:58] Speaker 02: I mean, I really question whether that was moot, [00:24:03] Speaker 02: if they want to withdraw their appeal of it. [00:24:06] Speaker 00: We have no problem with that. [00:24:08] Speaker 00: And they haven't asked for vacature of the district court opinion. [00:24:11] Speaker 00: I don't think that would be justified because they're the ones who have effectively mooted it out by making a new termination. [00:24:15] Speaker 00: That's classic months in where the party that [00:24:20] Speaker 00: It's not classic Munsingware, but anyway, they can't win a vacatur where they are the ones who have taken the step to make it go away. [00:24:29] Speaker 00: But they haven't asked for that anyway. [00:24:30] Speaker 00: We have no problem with withdrawing their appeal, and then Haiti is not part of this appeal right here. [00:24:36] Speaker 00: It's still very much a part of this case because we've now challenged that new termination, and many of the same defects that are at issue in this appeal are also at issue in the new Haiti termination. [00:24:48] Speaker 00: The only other, I wanted to talk about jurisdiction as well, but there's one other thing I wanted to say quickly before I get into it, which is Judge Mendoza, to answer your question. [00:24:57] Speaker 00: The district court cites that litany of statements in excerpts at page 60, so it's sort of farther down in the decision. [00:25:04] Speaker 00: It's relevant certainly to denying the government's cross-motion for summary judgment on the discrimination claims, but it is also relevant to predetermination, because what they show [00:25:17] Speaker 00: is that there is a separate motive and a pre-existing motive for terminating TPS, which is animus. [00:25:23] Speaker 00: And that is, of course, relevant to the question when there's pretext, which is one of the grounds for the APA finding by the district court here. [00:25:33] Speaker 00: So if I could turn to jurisdiction, I think NTPSA 1, [00:25:42] Speaker 00: The opinion that this panel issued already controls on this question of whether the statutory authority claim, which is the vacatur authority claim, is cognizable. [00:25:53] Speaker 00: And it's the law of the circuit. [00:25:55] Speaker 00: You have to apply it. [00:25:56] Speaker 00: They've also given you no reason to change your mind suddenly just a few months down the road. [00:26:00] Speaker 04: Does it matter that it was at a different stage where the underlying question was likely to succeed on the merits? [00:26:06] Speaker 00: I don't think so where it is written as a statement of a description of law. [00:26:13] Speaker 00: So, you know, as I understand the court's law of the circuit law on the subject now, you can choose to describe your opinion as preliminary in some way. [00:26:23] Speaker 00: And if you choose to describe it that way, then it doesn't create that same effect. [00:26:27] Speaker 00: If you instead just describe a set of legal rulings, then they are treated as law of the circuit. [00:26:33] Speaker 00: That's my understanding of where it is. [00:26:36] Speaker 00: And that's why I think it's fair to ask. [00:26:38] Speaker 00: I don't know whether the NDPSA 2, the order that you issued on the stay proceeding in this case, whether you would treat that as entirely binding or not. [00:26:50] Speaker 00: It sort of depends on your conception of how you understood it. [00:26:54] Speaker 00: But anyway, I think NTPSA 1 clearly seems to me like it is law of the circuit. [00:27:00] Speaker 00: There's nothing there in your description of the statutory authority, the case law you're citing, nothing there suggests that it's preliminary in any respect. [00:27:08] Speaker 00: But even if you want to work from first principles, they're just making basically the same arguments again. [00:27:14] Speaker 00: And they still haven't answered the central problem, which is, if they are right, can the government issue a TPS extension for 50 years? [00:27:23] Speaker 00: Can they retroactively invalidate all the documents? [00:27:27] Speaker 00: Can they issue a termination with no notice, even though it says 60 days notice? [00:27:31] Speaker 00: You know, did Congress intend to make those claims cognizable or not? [00:27:35] Speaker 00: And it seems obvious to me that they must have intended to make such claims cognizable. [00:27:39] Speaker 04: So I think the government has suggested throughout, including here today, that aspects of the [00:27:51] Speaker 04: the orders, the determinations made at issue here were legally unsound in some ways. [00:28:01] Speaker 04: So someone else could come and challenge those and say, you know, we should vacate, set aside those determinations on kind of the same pattern here but in the opposite direction and a court [00:28:15] Speaker 04: could do so. [00:28:17] Speaker 04: Why can't the executive do that on its own? [00:28:22] Speaker 00: That's the merits question, right? [00:28:23] Speaker 00: The merits question. [00:28:24] Speaker 00: Okay. [00:28:26] Speaker 00: The executive cannot do that because the statute says that an extension, a termination only takes effect at the end of the period of the prior designation or extension. [00:28:38] Speaker 00: And so the statute says once you have made an extension, it lasts for the time period that's given in the Federal Register notice. [00:28:44] Speaker 04: So you'd say that whoever would challenge the determination, the designations, they'd lose on the merits. [00:28:53] Speaker 04: But in other words, whether or not there are instances in which the executive could find a designation to be unsound, this isn't one of them. [00:29:08] Speaker 00: Yes, I think the answer is yes, Your Honor. [00:29:11] Speaker 00: Because it's nowhere written in the statute, this vacatur power, we have to look to the structure of the statute and its text to see whether imagining such a power is inconsistent with the statutory scheme. [00:29:23] Speaker 00: That's how I understand it. [00:29:24] Speaker 04: The government could have, for example, sought a declaratory judgment saying that this designation is illegal, bring all the same claims that you're bringing, but in the other direction. [00:29:34] Speaker 04: But they haven't backed up the arguments that it's, that it's, that's not how they proceeded. [00:29:39] Speaker 04: Instead, they use this implied assertively inherent power. [00:29:44] Speaker 00: Yes, exactly. [00:29:44] Speaker 00: I mean, certainly it's true that if there were litigation, whoever could bring it, whoever a state would have, you know, might have standing nowadays, whoever would have standing, you know, somebody could bring it and, you know, they could take that effect. [00:29:55] Speaker 00: But the government cannot vacate an extension because there's nothing in the statute which gives them authority to do that. [00:30:01] Speaker 00: You know, that being said, [00:30:02] Speaker 00: You could carve out situations where the government actually gives as a reason that it's illegal to do what we have done. [00:30:11] Speaker 00: I don't think that's in the statute. [00:30:13] Speaker 00: I don't think there's a justification for it. [00:30:14] Speaker 00: But if it was a concern of your honor, you could say, this is a different question that we don't have to decide. [00:30:20] Speaker 00: They haven't done that here. [00:30:21] Speaker 00: And in fact, if they had given [00:30:24] Speaker 00: Legal error as a reason then of course we could we could challenge that and say no you're you're wrong You know the closest hint that comes to that is this point about the 21 versus 23 designation Which I so my friend you know reiterated today. [00:30:37] Speaker 00: I don't want to beat it again You know but but it is that's just wrong the everybody who's eligible under 21 is also eligible under 23 and [00:30:46] Speaker 00: It doesn't matter whether you make one registration period or two registration periods for those purposes. [00:30:53] Speaker 00: There's nothing illegal about what they did, as Your Honour has explained in the footnote here in NTPSA 1 already. [00:31:01] Speaker 00: If I may, there's two other things that I think really are important about jurisdiction that I would like to address, because they're not addressed in NTPSA 1. [00:31:11] Speaker 00: They're not at least explicitly addressed in the stay order in NTPSA 2. [00:31:17] Speaker 00: And I do think they're very important both for the merits claims that are here in this case and for the Supreme Court, assuming that we go to the Supreme Court. [00:31:25] Speaker 00: The first one is, [00:31:27] Speaker 00: The district courts claim that there was a timing error here because the consultation did not happen before the decision and also that there was no consultation and that there was no country conditions review, no meaningful country conditions review. [00:31:43] Speaker 00: Those claims are also cognizable because they go to the statutory authority, just like the claim about whether there's a vacatur authority and just like whether you can cancel already issued documents, et cetera. [00:31:56] Speaker 00: And that comes from B3A of the statute, which says, this is the opening of the periodic review section, which says the attorney general, after consultation with appropriate agencies shall review conditions in the foreign state [00:32:12] Speaker 00: and shall determine then whether the conditions warranting designation continue to be met. [00:32:18] Speaker 00: And so those requirements are just the same. [00:32:21] Speaker 00: Just like you can't issue a TPS designation for 50 years, and you can't cancel issued documents, you can't issue a termination with no notice, these are also shall obligations in the statute. [00:32:31] Speaker 00: The secretary has an obligation to engage in consultation and country conditions review before they make the determination. [00:32:39] Speaker 03: So there's jurisdiction. [00:32:41] Speaker 03: Are you saying that in the three days [00:32:43] Speaker 03: they had after they came into office, that was not sufficient. [00:32:46] Speaker 03: What if they sent an email or received information, or I don't know? [00:32:50] Speaker 00: So there's a factual finding. [00:32:52] Speaker 00: Now we're talking about merits. [00:32:56] Speaker 00: And I hope we win on the merits. [00:32:57] Speaker 00: But I want to make very clear, either way, this is a statutory authority claim, what you call the first order claim. [00:33:03] Speaker 00: On the merits of that, Your Honor, there's a factual finding in the district court opinion, excerpts at 51, [00:33:10] Speaker 00: that the decision, that the secretary made the decision to terminate before consultation. [00:33:16] Speaker 00: So that's reviewable for clear error. [00:33:17] Speaker 00: That's reviewable for clear error. [00:33:19] Speaker 00: And there's a lot of evidence to support that finding. [00:33:23] Speaker 00: For one thing, they actually wrote a shell [00:33:27] Speaker 00: like a shell termination document without any country conditions evidence at all and then fill it in, you know, once we get the thing. [00:33:36] Speaker 00: The only evidence, there is no evidence, that's one. [00:33:40] Speaker 00: Second, there is no evidence of any contact between the State Department and the DHS. [00:33:47] Speaker 00: on this subject, on this termination, until the Marco Rubio letter, which comes in in the afternoon, like after 4 o'clock, if I remember right, on the 31st of January, the day before the termination is going to happen. [00:34:02] Speaker 00: And it is, so you know, that also suggests there isn't, there's not in fact consultation going on. [00:34:09] Speaker 00: And they have to prove it. [00:34:10] Speaker 00: They have to prove it once we have prima facie evidence that there isn't consultation because this whole thing happens in something like six or eight days or something and there's no evidence of it whatsoever and they've never shown that there was consultation. [00:34:21] Speaker 02: They did show, I think, wasn't there evidence that the secretary reviewed the August 24 Biden country conditions report? [00:34:31] Speaker 00: Well, there's evidence that it was, there's not evidence that she reviewed it, but there's evidence that it was before the secretary. [00:34:38] Speaker 00: And what the district court said about that was that it is disingenuous. [00:34:44] Speaker 00: because there's nothing cited from it. [00:34:46] Speaker 00: That's at ER 52. [00:34:47] Speaker 00: And because if you look at that report, it is strongly advocating extension of TPS for Venezuela because of political repression, because of drastic food insecurity, all of this harm that's happening there. [00:35:00] Speaker 00: And those things just get left out of the decision of the FRN. [00:35:07] Speaker 00: Instead, what they do is when they're looking for improvements, that's what the evidence shows. [00:35:12] Speaker 00: They're looking for improvements. [00:35:13] Speaker 00: and when they don't have anything to show about that because things are just getting worse and worse in the country, they just say, just admit it, and they don't talk about it. [00:35:21] Speaker 00: The other thing I would say on this subject, well, I can say more on the merits about that, but I also do want to get to the third jurisdictional point. [00:35:30] Speaker 00: Actually, let me just say one more thing about that, which is this court's decision in the California Wilderness case [00:35:41] Speaker 00: talks about what is involved in consultation. [00:35:44] Speaker 00: Now, that's a statute that is pretty similar to this one in that it just says the Secretary of Energy has to, in consultation with states, then write a report about some energy power transmission things. [00:35:58] Speaker 00: And this court reads that to require meaningful consideration [00:36:04] Speaker 00: of the viewpoint of the people being consulted and good faith consultation. [00:36:10] Speaker 00: And if you look at the facts of that case, a very detailed opinion, there is some input and some back and forth that's going, certainly more than what happened in this case, Judge Mendoza, but they say it's not enough because it's not enough to just sort of pay lip service to it. [00:36:27] Speaker 00: Consultation, when Congress writes a consultation requirement, it means meaningful consultation. [00:36:32] Speaker 00: And same with country conditions review. [00:36:34] Speaker 00: You know, there's no Department of State report. [00:36:36] Speaker 00: This is in the stay order. [00:36:38] Speaker 00: Your Honors had already talked about this. [00:36:40] Speaker 00: There's no Department of State report. [00:36:42] Speaker 00: There's no report from the Research Analysis Office of DHS. [00:36:47] Speaker 04: We've typically conducted this kind of more searching review of, [00:36:52] Speaker 04: administrative procedures. [00:36:55] Speaker 04: I mean, I think all your cases are in the domestic context. [00:36:57] Speaker 04: So how do we know that those all map onto, I mean, even the Supreme Court in terms of the census case, how do we know that those map onto the foreign relations context here? [00:37:10] Speaker 00: I give you two, Your Honor. [00:37:12] Speaker 00: First, Biden v. Texas, which is the remain in Mexico case. [00:37:16] Speaker 00: Although the government wins that case, at the end, the Supreme Court is very clear saying the decision making that the government has to make in this context, which is about paroling people in from abroad in the border, in the asylum context, is subject to the APA and is subject to the APA's constraints. [00:37:32] Speaker 00: And they're saying that as a way of saying, like, on remand, Texas may still be able to argue that the decision-making in this context does not satisfy the APA. [00:37:41] Speaker 00: And then the second one, it's not admittedly right on the border, but its immigration policy is the region's case, which I know you're familiar with. [00:37:46] Speaker 00: There is a very robust application of the rule that you have to consider alternatives, and they reverse on that basis. [00:37:52] Speaker 00: So those would be my two cases to say that the APA doctrine in this context applies and should apply in the same kind of way. [00:38:03] Speaker 00: The the dispute we're having over the meaning of determination. [00:38:07] Speaker 00: I'm going to go back if it's okay and talk about jurisdiction for the third claim right the dispute that we're having over the meaning of determination is really only relevant for these claims about unexplained departures from past practice. [00:38:21] Speaker 00: and pretext. [00:38:22] Speaker 00: Because our first two claims, the vacate your authority claim and also the no consultation and the timing violation, that the decision was made before the consultation review, those are statutory authority claims. [00:38:34] Speaker 00: But still I think determination, it is important for the court to construe determination to get to our unexplained departure from past practice claims. [00:38:44] Speaker 00: And what I would say there, Your Honor, [00:38:48] Speaker 00: They go back and forth about whether or not they think that TPS extensions for 50 years are unreviewable. [00:38:54] Speaker 00: So I don't know what their current view is on that. [00:38:56] Speaker 00: But to me, it just seems absurd to think that Congress would have intended to bar statutory authority claims. [00:39:02] Speaker 00: You already said that in NTPSA 1. [00:39:05] Speaker 00: But then my question is, what is the textual basis for carving them out? [00:39:09] Speaker 00: Because their argument is, it's any decision. [00:39:12] Speaker 00: Determination is any decision related to TPS. [00:39:15] Speaker 00: And obviously, the determination, if you want to use their word for it, that TPS extensions can be 50 years. [00:39:20] Speaker 00: That's fine. [00:39:21] Speaker 00: That's a decision about TPS. [00:39:24] Speaker 00: So why isn't that barred under their theory? [00:39:26] Speaker 00: And they have no account of why these parade of horribles, of crazy things that would happen, including what the Supreme Court suggested would be cognizable in this case, in the second paragraph of the stay order. [00:39:36] Speaker 00: They have no textual account of how those claims can be carved out, while other claims, like the arbitrary and capricious claims that we're advancing here, are barred. [00:39:47] Speaker 00: So I think it makes more sense instead to tie determination to the word determine. [00:39:53] Speaker 00: And I don't think where it appears in the statute. [00:39:55] Speaker 00: I'm not sure this is actually an application of what they call the consistent usage canon. [00:40:00] Speaker 00: It's just asking, what does the word determination refer back to in the statute? [00:40:04] Speaker 00: And what it refers back to is the things that the secretary determines. [00:40:09] Speaker 00: And construing the statute that way would be very consistent with how this court construed it in cases applying McNary, Proyecto San Pablo, Immigrant Assistance Project. [00:40:20] Speaker 00: And there's a number of immigration jurisdiction cases, all different kinds in this court, where the court has said, [00:40:29] Speaker 00: Statutes that have broader language, like any cause or claim arising from no decision or action, no judgment in Patel, right? [00:40:39] Speaker 00: JEFM, Gebhart v. Nielsen, which is sole and unreviewable discretion. [00:40:43] Speaker 00: Those broader statutes, those take out, some of them take out or channel APA claims. [00:40:49] Speaker 00: And I think this statute is not nearly as broad as those. [00:40:53] Speaker 00: Right up until NACA, a very recent decision of this court, you consistently said, when this broader language is used, then we find those kinds of claims barred. [00:41:00] Speaker 00: When it's narrower, we don't. [00:41:02] Speaker 00: I see I'm out of time. [00:41:03] Speaker 00: The last thing, if I may just briefly mention, Your Honor, there was a point about whether we have shown any harm. [00:41:12] Speaker 00: to NTPSA members and because it's relevant to the scope of relief and it's relevant to you know how this court approaches this case and I just wanted to point the court to the Amelia Garcia declaration which is in. [00:41:24] Speaker 00: the supplemental excerpts of record at 16 to 28, and also the Jose Palma Declaration, which is farther down. [00:41:32] Speaker 00: It's at supplemental excerpts 252 on, which documents the horrific harm, actually, that has come to NTPSA members in particular, people separated from their infant children, families deported, people detained, lots of people detained. [00:41:49] Speaker 00: And so we absolutely have shown harm in all 50 states. [00:41:53] Speaker 00: The NDPSE members are in every state and the harm that is happening that's being occasioned by the fact that these illegal terminations have gone into effect are affecting people all over the country. [00:42:02] Speaker 00: So I don't think there's any argument. [00:42:04] Speaker 00: Even if this were not a 706 case, this is a 706 case. [00:42:07] Speaker 00: And as you said, they argued the opposite last time. [00:42:09] Speaker 00: And 706 doesn't have equitable factors in it. [00:42:12] Speaker 00: It just says set aside the unlawful action. [00:42:14] Speaker 00: That's it. [00:42:15] Speaker 00: But even if that were not the rule, we have overwhelming evidence of people all over the country suffering catastrophic harm as a result of these terminations. [00:42:24] Speaker 00: And the district court's order is entirely appropriate in scope, given the harm that we have shown. [00:42:32] Speaker 02: Are there questions? [00:42:34] Speaker 02: All right, thank you, counsel. [00:42:39] Speaker 02: Ms. [00:42:39] Speaker 02: Welch. [00:42:43] Speaker 01: Thank you, Your Honor. [00:42:44] Speaker 01: Just a couple quick points. [00:42:46] Speaker 01: First, my friend referred to the parade of horribles that could result from having a judicial review bar, like a 30-year TPS extension. [00:42:56] Speaker 01: We do think that the review bar would cover that. [00:42:59] Speaker 01: That is our position. [00:43:01] Speaker 01: And that is the... [00:43:03] Speaker 01: The only time that a review bar has effect is when there is an error in the underlying decision that it's shielding. [00:43:10] Speaker 01: So that is what Congress would have expected when it foreclosed judicial review. [00:43:14] Speaker 01: That's not an absurdity. [00:43:15] Speaker 01: That's not an unexpected consequence. [00:43:17] Speaker 01: That is the effect of a judicial review bar. [00:43:20] Speaker 01: I would contrast that with the effect of not having vacater. [00:43:23] Speaker 01: when there is a judicial review bar, which even my friends on the other side concede covers at minimum country conditions, substantive evaluation of country conditions. [00:43:32] Speaker 01: If the secretary doesn't have this inherent vacatur authority, if the statute has foreclosed that, then a plainly erroneous assessment of country conditions can't be fixed by a court and can't be fixed by the secretary. [00:43:43] Speaker 01: It's just in effect. [00:43:45] Speaker 01: So I think that's the real consequence of the lack of an inherent vacatur authority. [00:43:49] Speaker 01: I would, I see my time's expired, I would be happy to talk further about Haiti and if the court needs additional briefing to determine whether... I'll give you an extra minute and a half because we gave it to the other side. [00:43:59] Speaker 01: Thank you, Your Honor. [00:44:00] Speaker 02: If there's an additional point you wish to make. [00:44:02] Speaker 01: Sure. [00:44:04] Speaker 01: Our view on the Haiti partial vagator is that that's the sole basis of the district court's decision on the Haiti claims. [00:44:13] Speaker 01: It didn't pass on the subsequent termination. [00:44:16] Speaker 01: So the district court's ruling rested solely on the partial vagator. [00:44:19] Speaker 01: And the effect of the partial vagator was just to shorten the extension by six months. [00:44:23] Speaker 01: Those six months will expire on February 3rd, which meant that the statutory periodic review timeline, without any effect of the partial vacater, required the secretary to make a new decision. [00:44:33] Speaker 01: That's what she published on November 28th. [00:44:35] Speaker 01: So whether the claims became moot because of that superseding decision on November 28th, or whether they will become moot in three weeks or so on February 3rd, the claims will be moot. [00:44:46] Speaker 01: And so that's the result of either the passage of time or the functioning of the statute, which is not discretionary. [00:44:51] Speaker 02: Are you withdrawing your appeal on that claim? [00:44:53] Speaker 01: We're asking for the court to vacate that portion of the district court's decision as moot because of mootness arising before the panel's decision. [00:45:02] Speaker 01: But they're not moot yet. [00:45:04] Speaker 01: They're either moot because of the November 28 termination on the ordinary statutory timeline or will at minimum become moot on February 3rd, which is the expiration of the Mayorkas extension. [00:45:17] Speaker 01: Right. [00:45:18] Speaker 01: We'd be happy to submit extra briefing on that if that would be helpful to you, Your Honor. [00:45:21] Speaker 02: Yeah, I think we would like [00:45:23] Speaker 04: maybe a letter brief, maybe supplemental letter briefs from both sides explaining that point and... Yeah, I had taken the 28-J letters to request us to dismiss the appeal, which is not vacating the district court decision. [00:45:48] Speaker 01: Right. [00:45:49] Speaker 01: So we think that the judgment line should say that that portion, I think this is on the beginning of the last paragraph on page two, the court should dismiss that portion of the appeal challenging the partial vacater and vacate the corresponding portion of the district court's decision under Monsignor, since it became moved before the court could issue a decision on it. [00:46:12] Speaker 02: All right, well, I'll look into that. [00:46:13] Speaker 02: Thank you. [00:46:14] Speaker 02: And if we do require supplemental briefs, we'll issue an order doing so. [00:46:19] Speaker 01: Thank you, Your Honor. [00:46:24] Speaker 02: All right. [00:46:24] Speaker 02: Are you finished, Council? [00:46:28] Speaker 01: I'd be more than happy to... No, no, I mean, you met your time. [00:46:31] Speaker 01: Right, yeah. [00:46:32] Speaker 02: But I just wanted you to say, you know, conclude. [00:46:36] Speaker 01: Sure, sure, Your Honor. [00:46:38] Speaker 01: If I could just, the last point would go to the consultation arguments. [00:46:47] Speaker 01: We think that creating a shell document doesn't in any way undermine the idea that there was consultation, doesn't support pretext. [00:46:55] Speaker 01: It's perfectly consistent with the ordinary decisional process for a subordinate to draft a decisional document before that document has final approval from the decision maker. [00:47:04] Speaker 01: And I would point out that the California Wilderness Coalition actually finds that for the portion of the decision where consultation did occur, that in part was considering sharing with the states a draft of the decision. [00:47:18] Speaker 01: So just having drafted a decision doesn't indicate that consultation hasn't occurred. [00:47:22] Speaker 01: And with that, thank you very much for the court's indulgence with the extra time. [00:47:25] Speaker 01: All right. [00:47:26] Speaker 01: Thank you, counsel. [00:47:28] Speaker 02: National TPS Alliance versus Kristi Noem will be submitted and this session of the court is adjourned for today. [00:47:35] Speaker 02: Thank you. [00:47:37] Speaker 02: All rise. [00:47:46] Speaker 02: This court for this session is done to adjourn.