[00:00:02] Speaker 04:
six cases, only three of which we'll have argument on today. The first one that we'll have your argument on is Queer Oz versus Mullen, and we'll hear from the appellant.

[00:00:33] Speaker 00:
May it please the court, my condigo for petitioner appellant, Mr. Santillan Quiroz. I hope to reserve four minutes for rebuttal.

[00:00:42] Speaker 00:
And I'd like to start with three points. First, the government's new detention policy violates the statute. Section 1226 governs detention of those non-citizens living in the country like petitioner and allows for their release on bond, while Section 1225B2 mandates detention for those seeking admission into the country at the border and ports of entry. This is confirmed by the statute's text, structure, history, three decades of agency practice, and this is consistent with what the Supreme Court and Solicitor General said in Jennings.

[00:01:15] Speaker 00:
Second, it makes sense why Congress preserved bond for people like our petitioner, who the government does not even argue poses any flight risk or danger. Indeed, he's lived here for 20 years. He's built a life here with his wife, who is a green card holder, their U.S. citizen stepdaughter. He's worked, he's paid taxes, owns his home, and has no criminal history but for a DUI, and yet he has been detained for over six months and counting without any review, along with thousands of other non-citizens subject to the government's new policy, which seeks to override Congress's choice to preserve discretion and avoid unnecessary and unjustified detention, a choice that aligns with the Supreme Court's longstanding precedent that we treat those who've entered this country and become part of our communities with more due process.

[00:02:05] Speaker 00:
Third, Congress does not hide elephants in mouse holes. The government argues that 30 years ago, Congress adopted the largest detention mandate in the history of this country and that somehow escaped the notice of five administrations, the Supreme Court, and 15 Congresses since. But that cannot be squared with IRA-IRA. We know from that 1996 act that Congress was so concerned about the strain from mandatory detention that when it did adopt a limited mandate for noncitizens with certain criminal histories, it delayed implementation by two years and made the agency add just 500 beds.

[00:02:44] Speaker 00:
And the government cannot account for how the same Congress would have said nothing about adopting a new detention mandate at 1225B2, orders of magnitude greater. sweeping up to 2 million people then and 6 million people now. That's not what Congress did, and this court should reject the government's attempt at rewriting the statutes.

[00:03:04] Speaker 01:
Counsel, you made the point that since 1996 and the statutory amendments, every presidential administration has interpreted the statute a certain way, and now that appears it's changed more recently. Is that relevant at all to our statutory interpretation? How do we weigh the recent history of how the executive branch has viewed the statute?

[00:03:25] Speaker 00:
Your Honor, I think the Supreme Court has explained that longstanding agency practice is relevant to understanding what is a natural reading of the text. We don't think you need to go there, but certainly if you do, we think it certainly supports us. So we think that it is relevant, but you don't need to rely on it. This is explained in Loper Bright, as well as learning resources. The Supreme Court said, of course, when the agency claims an unheralded power, We look to the text and see whether or not it makes sense that the prior agency has read that power in before.

[00:04:01] Speaker 00:
And here, it is certainly relevant that five administrations over 30 years has always held that people like our petitioner fall under 1226 and are eligible for bond. That's reflected in the contemporaneous regulations. And again, like I said, you don't need to reach beyond the text. Section 1226 squarely governs petitioner.

[00:04:23] Speaker 04:
Before you get into the text of 1226, on Judge Federico's question, the 11th Circuit's dissent by Judge Lagoa the other day seemed to characterize the issue that Judge Federico and you are touching on as an iteration in the major questions doctrine. Is that how you characterize it?

[00:04:45] Speaker 00:
No, Your Honor. We're not relying on major questions doctrine at all. If you look at learning resources, three justices agreed with the plurality, applying canons of statutory interpretation, like elephants in mouse holes on heralded power. That's what we are relying on here.

[00:05:01] Speaker 03:
An elephant in a mouse hole sounds a bit like a major question.

[00:05:10] Speaker 03:
I mean, elephants are pretty big.

[00:05:13] Speaker 00:
It is a pretty big elephant here.

[00:05:16] Speaker 00:
But, no, Your Honor, I think that in context like, for instance, Biden v. Texas, an immigration case, the court was not applying major questions, and there the Supreme Court looked to the multiple decades of the agency not applying return in Mexico to... Yeah, that's what I understand.

[00:05:36] Speaker 03:
I understand the argument, and I understand the question. Okay. Okay.

[00:05:41] Speaker 00:
Thank you. So turning back to the text of 1226, petitioner was arrested on a warrant. He's being detained pending removal proceedings. So he falls squarely within Section 1226.

[00:05:52] Speaker 00:
Now, the government argues that 1226 only covers people who have been admitted, but that is disproven by the neighboring provision, Section 1226C, which carves out some people who are inadmissible based on crimes. As the Supreme Court explained in Shady Grove,

[00:06:10] Speaker 04:
But it does cover people that are admitted as well, right? 1226C, it has to because it includes deportable noncitizens, right?

[00:06:20] Speaker 00:
Yes, Your Honor. We don't shy away from the fact that 1226 covers both deportable and inadmissible people. The problem with the government's interpretation is that they are nullifying those parts of Section 1226 that covers only inadmissible people. So that's 1226C1A.

[00:06:39] Speaker 00:
and C-1D, which were enacted in IRA-IRA at the same time as 1225-B-2.

[00:06:47] Speaker 00:
Congress would not have had to carve out some inadmissible people unless the default rule applies that they would generally be eligible for bond under 1226.

[00:06:59] Speaker 04:
Unless they wanted to make them ineligible for parole. And you argue that, well, Congress could have done, you know, could have included this within the exceptions in 1182, but they could have done a lot of things. I mean, Congress could have done a lot of things to make sure that this is not an issue. But how do you respond? Do you have any other response other than Congress could have opted to include parole exceptions in 1192?

[00:07:27] Speaker 00:
So there is that reason, Your Honor. As the 11th Circuit noted, they could have expressly amended the parole statute, as there are exceptions in the parole statute. But I think another reason is also if you look at Jennings and Priop, the Supreme Court explained how Section 1226 operates. It said clearly subsection C is a carve-out from subsection A, meaning that subsection C takes people who would otherwise be eligible for bond under 1226A and puts them into mandatory detention.

[00:07:58] Speaker 00:
It doesn't operate on other detention statutes.

[00:08:03] Speaker 00:
So the government's position that it takes away parole can't be the situation.

[00:08:10] Speaker 00:
If there's no questions about 1226, I'll be glad to move on to 1225B2.

[00:08:15] Speaker 00:
and explain why it doesn't cover Petitioner. So I want to start with the text, as always, and it says, in the case of an alien who is an applicant for admission, if the examining officer determines that an alien seeking admission is not clearly and beyond a doubt admissible, the alien shall be detained for a removal proceeding. So by its own terms, Congress used two conditions here in the case of an applicant for admission, as well as an alien seeking admission.

[00:08:47] Speaker 00:
And the government makes two key mistakes here. First, it's giving both of these terms their ordinary meaning, citing a college applicant who is seeking admission to college. And second, it's making this reference to seeking admission pure supposage by arguing that applicants for admission are necessarily seeking admission. But this is the INA that we're talking about, where Congress gives words technical meanings as terms of art, and we're also dealing with two distinct conditions that Congress put into 1225B2.

[00:09:21] Speaker 04:
Are you familiar with Judge Lagoa's reliance on Sturgeon to rebut this argument that you're making, that the deeming clause with regard to the A private land that was subsumed within the Alaska park lands wasn't just a fictional definition using the deemed clause, but it had real-life consequences.

[00:09:55] Speaker 00:
Two responses to that, Your Honor. So first, Congress deemed them to be applicants for admission. That's the text at 1225A1.

[00:10:03] Speaker 00:
It did not deem them to be also seeking admission. That's clear from the text because there would have been no reason for Congress to have used both terms, applicant for admission and seeking admission, in 1225B2. They also used both terms in other parts of the statute, like 1225A3. If you adopt the government's interpretation, that would be reading out applicant for admission in 1225A3 and seeking admission in 1225B2.

[00:10:30] Speaker 00:
And the second response to that, Your Honor, is that, of course, deeming them to be an applicant for admission is doing a lot of work in the statute. This was part of Ira Ira's intent to change their status in their removal proceedings. So people who entered without inspection are now no longer deportable. They're inadmissible. They're subject to inadmissibility bars. They bear the burden of proof in their proceedings. That was a sea change with Ira Ira. And Congress said in the committee report that they were changing only certain aspects of the prior regime, but they said nothing about changing the rules for detention.

[00:11:06] Speaker 00:
In fact, they did the opposite and said when they were discussing 1226, the bond eligible statute, that they were restating the prior provision that provided bond for people unlawfully in the country. And I see I'm into my rebuttal time.

[00:11:19] Speaker 04:
I'll stop her, Claude.

[00:11:25] Speaker 04:
Judge Abel, do you have any questions?

[00:11:26] Speaker 01:
No, I have no questions right now. Yeah, counsel, can I just help me think about sort of the different categories of noncitizens who may be physically present in the United States? So you're either admitted, so you've gone through inspection and been admitted for entry. or you're an applicant for admission. So you're physically present, but you haven't gone through and been admitted yet. Are there any other categories?

[00:11:54] Speaker 00:
Yes, Your Honor. I think this is reflected in the INA. It's certainly much more nuanced than what the government claims. It's not either a binary of admitted or not. People can have lawful status without being admitted.

[00:12:08] Speaker 01:
Such as those who may be paroled, for example?

[00:12:10] Speaker 00:
People can be paroled without being admitted. The statute expressly says that if you're paroled, you haven't been admitted. But I think it's instructive to look at the Supreme Court's decision in Sanchez v. Mayorkas that explains very clearly the difference between admission as a concept and lawful status. Someone can not be admitted, again, and gain lawful status to stay in this country. In Sanchez, they discussed TPS, temporary protected status, as well as asylum status. and someone can be admitted on, say, a tourist visa and overstay and lack lawful status.

[00:12:46] Speaker 00:
Here, a petitioner is in removal proceedings seeking cancellation of removal. So that's simply seeking to cancel his removal so that he can stay in this country. He is not seeking admission.

[00:12:56] Speaker 01:
Well, counsel, one of the arguments, as I understand it, is that if you read the statute, the way that you're advocating for us to do, is that you may punish those who actually are going through the process to seek admission compared with those who are doing nothing. And so how do you respond to that critique of your position?

[00:13:15] Speaker 00:
I have three responses to that, Your Honor. So first, to be very clear, if someone entered without inspection, they can be subject to mandatory detention if they're placed into expedited removal. That's at 1225B1, and that was an extraordinary change that IRA-IRA adopted, and it gave the executive the authority to put people into both fast-track deportation and mandatory detention.

[00:13:42] Speaker 01:
Wasn't that traditionally used almost or exclusively used at the border?

[00:13:47] Speaker 00:
Yes, Your Honor, but Congress said that the executive could use it for recent entrants who have not been here for up to two years, and that is extraordinary. But if the government chooses to put somebody into 240 proceedings that's under Section 1229A, then they are subject to discretionary detention because that's what the statute provides for. And second, I'll note that we're not talking about a recent border crosser here, of course. The vast majority of people impacted by the government's policy are longtime residents like our client.

[00:14:19] Speaker 00:
These are people who've been here for years. As I've discussed, they're deeply rooted in their communities. And the question is not why Congress would want to reward them with bond hearings, but rather why would Congress subject millions of people to mandatory detention when these are the people least likely to pose a flight risk or danger? And my third reason is that, again, this is consistent with the longstanding scheme of differentiating between people stopped at the border and those who've entered and become part of our communities. The government often has just much less information about people who present at ports.

[00:14:53] Speaker 00:
Whereas people who've been living in this country for many years, the government has readily much more information about them to make these bail assessments. And again, Your Honor, the government does not even argue that Mr. Santillan-Curiel poses any flight risk or danger.

[00:15:09] Speaker 03:
I'm just curious about one statement you made. You said the defendant is not an applicant for admission. He is only challenging removal. But...

[00:15:20] Speaker 03:
What if he avoids removal in this case but doesn't apply for admission? What's his status down the road going to be?

[00:15:30] Speaker 00:
I'm sorry, Your Honor.

[00:15:32] Speaker 03:
Could the government say, fine, well, if he hasn't even applied for admission, we'll just bring another action against him?

[00:15:41] Speaker 00:
I'm sorry, Your Honor, if I might have misspoken. I did not intend to say he's not an applicant for admission. He's deemed an applicant for admission by the statute. He's not seeking admission.

[00:15:51] Speaker 03:
I misunderstood your statement. Yeah, okay.

[00:15:55] Speaker 00:
Right, Your Honor. So he is not seeking admission because, again, as the INA defines admission, it means a lawful entry into the United States after inspection and authorization by an officer. That describes an activity that occurs at borders and ports of entry, he's already entered.

[00:16:12] Speaker 03:
Yeah, right. So that's fine. Thank you. I understand.

[00:16:16] Speaker 01:
Counsel, how much weight do you give the language in Jennings and whether or not it's dicta, and even if so, whether or not that dicta that would support your position would be binding on this court?

[00:16:30] Speaker 00:
So we agree that it is dicta. I mean, it is not a passing remark. It is the first several pages of the opinion that sets out how these statutes work.

[00:16:40] Speaker 00:
So this Court has said that it is bound by dicta from the Supreme Court nearly as much as its outright holdings. That's the Mohammed v. Jones case. So we think, Your Honor, certainly you can give the Supreme Court's description about these statutes great weight. And I'll also note that the Court also talked about 1226 in Priyat v. Jennings. And that, too, was its square holding was about 1226.

[00:17:08] Speaker 04:
Okay, thank you.

[00:17:09] Speaker 02:
We'll hear from Mr. Ensign.

[00:17:12] Speaker 02:
Good morning, Your Honors. May it please the Court, Drew Ensign, Deputy Assistant Attorney General for the United States.

[00:17:19] Speaker 02:
In the landmark 1996 IIRA statute, Congress specifically sought to end the differential and more favorable treatment given to aliens that unlawfully cross our borders and successfully make it into the interior of our country. As the Ninth Circuit has explained, Congress and IIRA sought to, quote, ensure that all immigrants who have not been lawfully admitted, regardless of their physical presence in the country, are placed on equal footing in removal proceedings, end quote. That's the Torres case. One of the ways that Congress equalized treatment for unadmitted aliens was providing for mandatory detention pending removal proceedings for everyone, whether they had lawfully presented themselves at courts of entry or instead illegally barged past their borders.

[00:18:01] Speaker 02:
Congress did so in subsection A1, by providing that all aliens who have not been admitted to the United States are deemed applicants for admission, which applicants for admission are necessarily, by definition, seeking admission.

[00:18:15] Speaker 04:
Well, that's the ordinary meaning of it, right?

[00:18:21] Speaker 04:
But the argument that the appellant is making is that this is an artificial definition, and unlike the Sturgeon case that Judge Lagoa relied on, This is in two separate conditional clauses. Applicants for admission is in one clause in the case of an applicant for admission, and then in a separate independent clause is the participial phrase seeking admission. So her argument is that predicated on what you just said, that it's an artificial definition of applicant for admission.

[00:19:00] Speaker 04:
It doesn't mean individuals who apply for admission or who have applied for admission. What's your response to that?

[00:19:06] Speaker 02:
Your Honor, at least three responses. I think, first of all, it is important to recognize that it's apparently common ground that ordinary meaning supports our interpretation. That is extraordinarily important here. You therefore, and what you have is petitioner trying to contort the terms meaning against their ordinary meaning to accomplish the antithesis of Congress's goal. Congress's goal was to equalize the treatment of those who lawfully presented points of entry and those that unlawfully entered the country. So contorting a term beyond its ordinary meaning to accomplish the exact opposite of what Congress intended is frankly a little bizarre.

[00:19:43] Speaker 02:
I think second of all, Congress through subsection A3 confirms our interpretation where by use of an or otherwise clause, it necessarily recognizes that applicants for admission are subsets of aliens seeking admission. You can seek admission in other ways without being an applicant for admission, but A3 means you can't be an applicant for admission without seeking admission.

[00:20:04] Speaker 04:
And I don't want you to forget your third point, but on your second point, Or otherwise, it's interesting because here, unlike a lot of statutes that use or otherwise, it is an ungrammatical series. It is coupling a noun phrase with a participial phrase, right? Your Honor. Seeking admission is a noun phrase. Seeking admission is a participial phrase.

[00:20:34] Speaker 04:
and you're saying that or otherwise is meaning to couple those two, well, in addition to causing seeking admission to be superfluous, because it could have just said the alien, it also is odd to use or otherwise to couple a series that makes it ungrammatical.

[00:20:57] Speaker 02:
Your Honor, I think a couple of responses to that as well. I think, first of all, it could just be that there's an implied those in the second part. That's a very common way of using English in there to match that up. Second, even if it's not perfectly grammatical, I mean, you might want to grade Congress down on its grammar here, but that doesn't change the logical relationship in any way. Through A3, Congress recognized a logical relationship between the two. And I don't think the grammar changes the fundamental logical relationship confirmed between the two.

[00:21:30] Speaker 02:
And then I think that's confirmed if I can circle back to my third point, you know, and the Sturgeon point is they are deemed to be applicants for admission regardless of whether or not they're applying for admission. It is precisely because it is a legal fiction that it applies. Legal fictions by definition apply even when they're not factually, you know, describing what the circumstances on the ground are.

[00:21:50] Speaker 04:
So you apply a legal fiction to and import to that the colloquial, the common use of that, even though Congress has specifically fiat-ed a term that has a legal definition that's contrary to the ordinary meaning of it. I'm not sure I followed the logic of the argument.

[00:22:15] Speaker 02:
Your Honor, I think it's that they're deemed to be applicants for admission and everything that goes with that, including that they have a pending application for admission as a matter of law, regardless of whether or not they are literally applying for admission. I mean, that's how legal fictions work.

[00:22:30] Speaker 04:
Let me posit an example, a hypothetical. Let's say I apply to the University of Colorado.

[00:22:39] Speaker 04:
and I either get in or I don't get in, and it's May 12th, and Judge Abel says, well, will everybody, all applicants for admission to the University of Colorado stand up? And I stand up, and then Judge Abel says, well, you're not applying for admission. I say, yeah, I did apply for admission.

[00:23:04] Speaker 04:
It's present perfect. I have applied at the University of Colorado. Am I entitled to stand up if Judge Abel asks for people to stand up that are applicants for admission at the University of Colorado?

[00:23:18] Speaker 02:
Your Honor, probably not, but I don't think that matches up with the language that Congress used here. Subsection A1 recognizes present tense. You're an applicant for admission as long as as you're present in the United States so that you continue to be an applicant, regardless of whether or not you've gone past the border or out the border.

[00:23:37] Speaker 04:
So I can be an applicant for admission under A-1 without seeking admission?

[00:23:44] Speaker 02:
I think that's what Congress is trying to do through the deeming provision and creating a legal fiction that you are an applicant for admission, regardless of whether you have a literal application or not.

[00:23:58] Speaker 01:
Can I pull on Judge Bacharach's typo a little bit and change it? Let's say he hasn't applied to the University of Colorado, but he just works there as an employee. He's physically present on the campus at Boulder, but he hasn't submitted an application at all.

[00:24:13] Speaker 01:
Would we say that he is seeking admission to the University of Colorado? Would we say that he is an applicant for admission by his physical presence at the University of Colorado at Boulder?

[00:24:23] Speaker 02:
You ought not to be flippant, but if Congress specifically told you that he was an applicant for admission, I think the answer to that is yes.

[00:24:29] Speaker 01:
So then why wouldn't we read A1 exactly that way? All it says is President of the United States, here present on the campus, the University of Boulder, who hasn't been admitted as a university student, which he hasn't, but he's arrived there, and so he shall be deemed an applicant for admission to the University of Colorado.

[00:24:48] Speaker 02:
Your Honor, forgive me, I may not be following the hypothetical exactly. Assuming that it's a parallel sort of deeming provision as to what Congress has done, I think that, you know, when Congress makes you something.

[00:25:01] Speaker 02:
everything that comes with that. And I think there's a really important point with the Murphy and Lagoa dissents about this that, you know, I don't, and you can ask petitioners when they come back up, I certainly think that they believe that all of these people are eligible for parole, but you can only be eligible for parole if you're applying for admission. So you've got this bizarre hair-splitting where they're somehow applying for admission but not seeking admission. And, you know, I think that contorts the English language beyond what it can bear. But I think the

[00:25:29] Speaker 01:
The problem that I'm having is your reading of V2 is that ordinary meaning essentially merges, as I understand it, who is an applicant for admission and seeking admission. And the two questions that come to mind for me are, one, if Congress wanted all applicant for admission to be covered by V2, then why use the language seeking admission at all?

[00:25:54] Speaker 02:
Your Honor, I think it's a doublet, as Judge Lagoa recognizes. Congress often uses similar words to mean the same thing.

[00:26:02] Speaker 01:
But they also use different words when they want to convey different meaning.

[00:26:05] Speaker 02:
They do, Your Honor. And, you know, I think this also gets to the surplusage point where they view that as surplusage. But I think Judge Lagoa is the better of the argument there, recognizing that under their interpretation, in A1, the language whether or not a port of entry does no work. for the rest of 1225, and that's a much greater surplus.

[00:26:24] Speaker 04:
Explain that. You're including several steps.

[00:26:27] Speaker 02:
I just want to follow it. Yes, Your Honor. Apologies for shorthanding that. So in the definition of subsection of A1, which defines who's applicants for admission, it uses the language specifically whether or not at a designated port of arrival. So Congress specifically used applicant for admission. It's actually the term that it shows specifically to equalize treatment. I don't think that that's really disputed. And I think the Ninth Circuit is rightly recognized as much. But under petitioner's interpretation, that whether or not a port of entry ends up doing no work for the rest of 1225.

[00:27:02] Speaker 02:
And so that is a huge surplusage problem where Congress had, you know, went to the trouble of saying whether or not a port of entry, that ends up doing no work. And not only is it an ordinary surplusage problem, And it ends up thwarting Congress's specific intent, as recognized by multiple courts, that the intent of AIRA was to equalize the treatment. But petitioner's interpretation continues the prior perverse result that you get more favorable treatment by virtue of violating our laws. You essentially adversely possess additional procedural rights by virtue of violating our laws and committing the crime of illegal injury.

[00:27:38] Speaker 02:
And that's precisely what Congress sought to end.

[00:27:40] Speaker 04:
Can I ask you, going back to the or otherwise Let's say hypothetically that you have a statute that says we will not recognize a patent for an invention that was in public use, on sale, or otherwise available to the public. Let's say you have an invention that was sold privately that was not publicly accessible.

[00:28:08] Speaker 04:
Would that fall within this statutory prohibition for the recognition of patents?

[00:28:16] Speaker 02:
I believe you're referring to the Helsing case. I am.

[00:28:19] Speaker 04:
And the Supreme Court said that or otherwise that it would prohibit an invention that was sold privately, even though it doesn't fall within the broader or otherwise clause otherwise available to the public. So I don't see how you can say across the board that or otherwise is always going to be a broader category in which the preceding clause is going to be a subset of the larger or otherwise clause, because we know that's not the case from the Helsing case.

[00:29:00] Speaker 02:
Your Honor, at least two responses, and I'll see if I come up with others. One is that Helsing is largely a ratification case. It is that on sale had a very well-defined meaning in judicial interpretations. And what Helsing's real holding is is that Congress's use of or otherwise was insufficient to change the well-established meaning that courts had given to on sale. And it's about that rather than the logical relationship. It doesn't really touch on that.

[00:29:31] Speaker 02:
And I think we're not just dealing with A3 here. We have multiple different indications here that Congress viewed as a subset I direct the court to subsection A5 as well, and the Fifth Circuit has a good explanation of this as well, where A5 says, an applicant for admission may be required to state under oath any information sought by the immigration officer regarding the purposes and intention of the applicant in seeking admission in the United States. That, again, is recognizing the logical relationship between the term applicant for admission and seeking admission.

[00:30:04] Speaker 02:
Congress has done that in multiple places, so it doesn't just align with ordinary meaning. It also aligns with Congress's intent, and it aligns with how the logical relationship that Congress has created between these terms and multiple different parts of Section 1225.

[00:30:19] Speaker 04:
Yeah, and it also refers right before the clause that you're referring to, to state under oath any affirmation sought by an immigration officer for the purposes. Well, that's...

[00:30:34] Speaker 04:
Precisely the point that your adversary is making is that if you look at A3, if you look at A4, if you look at A5, if you look at the title, all of these, not only the subsection, but the entirety of the section is geared around inspection by immigration officers. That's how the whole statute begins. And the clause that you're referring to is referring to information sought by an immigration officer. Nobody sought any, no immigration officer sought any information from Mr. Quiroz or people like him.

[00:31:11] Speaker 04:
And so how do you, I mean, do we just take the second part of the clause seeking admission and ignore the rest of the sentence?

[00:31:18] UNKNOWN:
Yes.

[00:31:18] Speaker 02:
I don't believe so, Your Honor. I think the way that 1225 operates is it operates when you get caught, not when you cross the border. And so he was inspected when he was caught, and they could have sought that information from him at that time.

[00:31:31] Speaker 02:
But 1225 doesn't operate at the moment that he crossed the border. It operates now. And, you know, there's no doubt. For example, expedited removal can apply to people, and that's B1, that are certainly in the United States and that have made it past the border. And that, you know, is clearly an inspection-based process. This is also part of the inspection process that, you know, it's part of it. And then, you know, he received an NTA, even under their interpretation, He's subject to 1226A.

[00:32:03] Speaker 02:
And, you know, as a result of the inspection process, not finding that he was clearly entitled to be in the United States, he got put into 1226 in their interpretation, 1225 in ours, but that's as a result of the inspection. And the inspection operates essentially when they're caught, not, you know, not some hypothetical time before that.

[00:32:23] Speaker 01:
Council, what do we do with the dicta in Jennings that says that 1225 applies at the nation's borders and ports of entry?

[00:32:30] Speaker 02:
You are. I think Jennings, I will acknowledge, has some dicta for everybody. And so that's why I don't think anyone thinks it's controlling. But to the extent that we're going by dicta of Jennings, I think the government overwhelmingly has the better of it. And so I directed to two parts of Jennings that if given, you know, if given if given effect as if they were holding in the Supreme Court would mean that we win outright. So the first is, quote, read most naturally sections 1225 B1 and B2 thus mandate detention of applicants for admission until certain proceedings have concluded, end quote.

[00:33:05] Speaker 02:
And that's Jennings 583, U.S. at 297. And then a second quote of section 1225B2, dot, dot, there, serves as a catch-all provision that applies to all applicants for admission not covered by subsection 1225B1. And that's Jennings at 287. So, You know, I think Jennings has some dicta for everybody, but if we're going by dicta, as if that's controlling, the government wins. Like, we haven't made such a claim, but if we're going down the Jennings-Dicta rabbit hole, I think absolutely we are entitled to affirmance here.

[00:33:44] Speaker 01:
Can I ask two more questions? Council, also, if we're adopting your position in terms of how we read the statutes, what is left of 1226A?

[00:33:53] Speaker 02:
An enormous amount of work. For example, 1226A applies to everyone that has overstayed their visa. So they were lawfully admitted into the country, and then they violated the terms of their visa either by overstaying or, for example, working when they don't have work authorization. There are millions of such people in the United States. That does a tremendous amount of work. It is hardly surplusage. It is going to apply to a very large population of people, even under the government's interpretation. That has not changed at all. And that reflects, too, Congress's you know, touchstone in IIRO, which is changing the dividing line of their touchstone between entry to admission.

[00:34:31] Speaker 02:
And so 1226A continues to do quite a bit of work. It also continues to apply to people that, for example, that have LPR status but have, you know, committed crimes. that are not within 1226C, but would nonetheless be subject to potential removal. And so 1226A would continue to apply to them. It still applies to a very large subset. And if I can, on the subject of 1226 , too, it still does work under our interpretation, and it necessarily must apply to 1225, because 1226 also prohibits the government from granting parole.

[00:35:11] Speaker 02:
And that operates at the border, too. And I don't read them to view 1226 as not operating at the border, but that necessarily means that 1226 also applies to applicants for admission. who cannot, under the 1226C as amended by the Lake and Riley Act, can no longer be paroled unless they meet some very exacting requirements.

[00:35:29] Speaker 04:
Mr. Ensign, don't take this as a rebuke because it's not. You're just trying to answer questions. But since we're past time, I've given my colleague plenty of time to ask questions, but please refrain from the temptation to present new arguments. I don't think he was asking you about C2. I apologize, Your Honor. No, no need.

[00:35:52] Speaker 04:
more.

[00:35:53] Speaker 01:
Sure.

[00:35:54] Speaker 01:
I think you were in probably the best position to answer this question, which is the question that is before this court, we're not the first court, appellate court to take up this argument, and I think as of yesterday in the Sixth Circuit opinion now, we certainly have a circuit split with the Fifth and the Eighth on one side. My understanding is the Second, the Eleventh, and the Sixth on the other side, and the Seventh has a fractured.

[00:36:21] Speaker 01:
I also am If I'm understanding this correctly, every circuit court has already now heard argument on this question. So I'm just imagining we're going to be writing an opinion. Do you anticipate that there will be petitions filed on an emergency basis or otherwise before the Supreme Court that may intervene that would then dictate how we would go about writing our opinion? If you read into that question what I mean.

[00:36:46] Speaker 02:
I want to make sure I'm answering your question. And so I certainly don't want to get into any internal deliberations within the government. But to state the obvious, there is a clearly defined square circuit split on an issue of enormous importance. I mean, that's pretty much Supreme Court's Rule 10 to a T. So, you know, I won't certainly be surprised if the government seeks cert, you know, or, you know, certainly there's the fifth and the eighth so far where the other side could seek cert.

[00:37:15] Speaker 02:
I believe the First Circuit also observed that this is likely headed to the SCOTUS as well. So, but, you know, certainly the Supreme Court benefits from percolation. We would certainly welcome any thoughts this court has. You know, we obviously, you know, agree more with the Fifth and the Eighth and the Lagoa and Murphy dissents, and so we would recommend those to you. But, you know, we would certainly encourage this court to reach the question because, first of all, it does matter enormously in the interim for district courts and practitioners within this circuit.

[00:37:49] Speaker 01:
Well, it matters for a petitioner who's been in custody without a bond hearing for, I think, six months and counting as well.

[00:37:57] Speaker 02:
Certainly, Your Honor, and we're not suggesting that you hold this case pending what is, you know, reading the writing on the wall, a probable cert grant, you know, that's likely to be decided next term.

[00:38:09] Speaker 01:
If I could, one other question. I asked your colleague on the other side this question as well, but the statutes amended in 1996 and every administration thereafter, Republican and Democrat alike, had interpreted it a certain way until recently. And obviously that's what's been driving all these cases being argued at the circuits. And how should we think about that recent history as we're thinking about how to interpret the statute when it seems to be driven for policy reasons as much as statutory interpretation?

[00:38:42] Speaker 02:
I think it should be given very little weight here for a couple of reasons, and this is a rather strange case. First of all, quite oddly, and the Fifth Circuit discusses this, the 1997 regulation that first adopts IIRA actually promulgates the government's interpretation here, or at least It certainly gestures in that direction. And then, bizarrely, the executive practice went completely the opposite way. I think certainly, too, when courts give weight to longstanding executive interpretations, that's typically because they're reasoned and, you know, have been explained for a while and prevailed.

[00:39:15] Speaker 02:
There never was a definitive, you know, government interpretation here until, you know, until 2025 when DHS promulgated guidance and the BIA released the Hurtado decision. So you don't really have an agency interpretation, at least not a very explained one. What you have is agency practice. So what you really have is bureaucratic inertia, which can be extraordinarily powerful. It might not be one of Newton's laws of thermodynamics, but it's very powerful, and seemingly, you know, it was on autopilot for a good quarter century.

[00:39:48] Speaker 04:
All right. Thank you very much. Thank you, Your Honors.

[00:39:52] Speaker 00:
I hope to make five quick points. So first...

[00:39:56] Speaker 00:
As we made clear in our briefs, people who enter between ports of entry can seek admission, so it's not the case that the government is right about us creating surplusage. For instance, many families and large groups cross the border between ports of entry and immediately seek out a border patrol. This is often the case because they're prevented from actually going to the port of entry. They are still seeking admission because what is key here is that they are submitting to an inspection with the hope of getting authorized entry. Second, For this reason, the cases that the government cites, Barton, Rimini Street, they don't apply here because those rejected the surplusage canon where they were dealing with dueling interpretations that each introduced surplusage.

[00:40:39] Speaker 00:
Petitioner's does not. We give meaning to all the words in the statute. Third, I'm going to turn to A3 because I think this actually helps explain how petitioner's reading avoids surplusage throughout the statute. So Judge Bacharach, you talked about the other work that or otherwise can be doing, and we cite in our brief examples of statutes that also use or otherwise in the way that we think is being used in 1225A3 to illustrate an overlap between the terms applicant for admission and seeking admission.

[00:41:12] Speaker 00:
So yes, there are some applicants for admission who are seeking admission, but there are some who are not. And I'll give a common example of a returning lawful permanent resident. This is a green card holder, so when they show up at a port of entry, they are deemed an applicant for admission under 1225A1, so they must be inspected. However, returning lawful permanent residents generally can travel freely in and out of the country. That's why the INA recognizes that generally they are not seeking admission unless one of special circumstances apply.

[00:41:45] Speaker 00:
That's at 1101A13C.

[00:41:49] Speaker 00:
So returning lawful permanent residents demonstrate that there are some applicants for admission who are not seeking admission. You cannot subsume one term under another. And similarly here, for 1225B2 purposes, this shows how those two terms have different meanings. And if you look at Jennings, that talks about returning lawful permanent residents who are both applicants for admission and fall within the seeking admission exception because they have been gone for over six months or have certain crimes.

[00:42:22] Speaker 00:
It's only in those situations when they check both conditions to trigger 1225B2.

[00:42:29] Speaker 00:
Conversely, again, petitioner is not seeking admission. B2 does the work of limiting it, excludes people who are not applicants for admission. For instance, people who are stowaways. That's at 1225A2. They're explicitly not applicants for admission. They cannot be subject to B2.

[00:42:47] Speaker 00:
People going through the preclearance process seeking admission from abroad are not subject to 1225B2. And similarly, people who are not seeking admission, like our petitioner, are not subject to 1225B2. Instead, they are subject to 1226, and this is in keeping with the history as explained in the law scholar's brief, as well as in keeping with what the Supreme Court said very clearly in Jennings. I don't think you can escape the discussion at the first pages of that decision.

[00:43:16] Speaker 00:
It's clear. There's no overlap between the statutes only 1226 applies to petitioner and as Noted mr. Santiago Rose has been unlawfully detained now for over half a year without volunteering So we urge this court to issue a quick decision reversing the district court All right, thank you very much Better we submitted I do want to take an opportunity to thank counsel for both sides

[00:43:43] Speaker 04:
I'm confident that I speak for all of us when I say that the briefs and the arguments were absolutely exceptional. So thank you both.