[00:00:00] Speaker 00:
Case number 19-5013, Grace et.

[00:00:04] Speaker 00:
L. v. William P. Barr, Attorney General of the United States and his official capacity et.

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L. appellant.

[00:00:10] Speaker 00:
Mr. Roubini for the appellants, Mr. Wolfsey for the appellees.

[00:00:16] Speaker 05:
Good morning.

[00:00:17] Speaker 05:
May I please the court?

[00:00:19] Speaker 05:
The court's permission, I'd like to reserve three minutes for a vote.

[00:00:24] Speaker 05:
Your honors, the district court in this case, exercising jurisdiction, Congress explicitly took away from it, issued a sweeping nationwide injunction requiring asylum officers going forward in perpetuity to apply its erroneous interpretations of asylum law in tens of thousands of cases a year.

[00:00:44] Speaker 05:
Since the court issued its decision, no court has agreed with it.

[00:00:48] Speaker 05:
Two circuit courts of appeals have expressly disagreed with it, and for those reasons, the court lacks jurisdiction, or as I will explain, the court lacks jurisdiction.

[00:00:56] Speaker 03:
Wait, we lack jurisdiction because other courts disagree with the district court?

[00:01:01] Speaker 05:
No, your honor.

[00:01:02] Speaker 03:
Pardon my imprecision.

[00:01:03] Speaker 05:
Let me start with jurisdiction and we'll get right to that.

[00:01:07] Speaker 05:
As we lay out in our brief, we think the district court lacks jurisdiction for a very simple reason.

[00:01:12] Speaker 05:
Nothing in the statute that provides for judicial review, that's section 1252E3, provides for judicial review of substantive asylum law determinations made under the authority of the attorney general under a different statutory provision.

[00:01:28] Speaker 03:
Let's just get right to the core of this.

[00:01:30] Speaker 03:
Let's assume you're right about this.

[00:01:36] Speaker 03:
Section 1252C3 gives the district court jurisdiction to review written policy directives or guidelines that implement 1225B.

[00:01:51] Speaker 03:
The guidance that the district court was reviewing here, set aside AB for a second.

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Let's focus on the guidance.

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The guidance that the district court reviewed is entitled policy memorandum

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and it expressly invokes 1225.

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and says that it shall be used to be guide determinations and credible fear determinations.

[00:02:13] Speaker 03:
So why doesn't that fall right under E3?

[00:02:16] Speaker 05:
So two answers to that.

[00:02:17] Speaker 05:
First, you should look at the title of the guidance.

[00:02:20] Speaker 03:
No, no, the title?

[00:02:22] Speaker 05:
Yeah, the title of the guidance you're referring to is a policy memorandum issued by USCIS which says, guidance for processing reasonable fear, credible fear, asylum, and refugee claims in accordance with matter of AB.

[00:02:33] Speaker 03:
Wait, wait, the statute says written policy directive.

[00:02:36] Speaker 05:
You're asking me about the specific guidance, the USCIS guidance at issue in this case.

[00:02:43] Speaker 03:
But it says guideline.

[00:02:44] Speaker 03:
Is that different from a guidance?

[00:02:46] Speaker 05:
So that's the answer to my second question.

[00:02:48] Speaker 05:
My second answer to your question.

[00:02:50] Speaker 05:
My first point was this is not a document that specifically refers to credible fear or expedited removal.

[00:02:55] Speaker 05:
It applies a general asylum standard.

[00:02:58] Speaker 03:
No, it specifically cites 1225.

[00:03:01] Speaker 05:
Right.

[00:03:01] Speaker 05:
So let's get to the answer to the second.

[00:03:03] Speaker 05:
My second answer to your question.

[00:03:04] Speaker 05:
So the statute itself refers specifically to authority of the attorney general to implement this section.

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What is this section?

[00:03:12] Speaker 05:
This section is 8 USC 1225 B1.

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So I think you have to understand written policy guideline, written policy directive, written procedure in reference to what 1225 B1 gives the attorney general the authority to do.

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At least in five different locations in that statute, Congress instructs the attorney general

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to take certain actions, all of which are process-based actions, how to process credible fear claims, how to process individuals at the border facing inspections seeking admission to the country.

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In particular, for example, the attorney general shall provide by regulation and upon the alien's request for prompt review by an immigration judge.

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They're instructed to set up a system of judicial review before an immigration judge.

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That's 1225B1B33.

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or the Attorney General is instructed to provide information concerning asylum interviews.

[00:04:02] Speaker 05:
So again, an instruction to the Attorney General to take an action that is a process-based action implementing the procedures laid out until 25B1.

[00:04:11] Speaker 03:
I hear everything you're saying, but I still don't understand how

[00:04:16] Speaker 03:
that neutralizes the district court's authority to review a written policy directive or guideline that implements 1225B, which is what this is.

[00:04:32] Speaker 05:
So if you look at the statute, again, you're assuming... I know, you told me that, but I didn't hear anything.

[00:04:36] Speaker 03:
You just said that.

[00:04:37] Speaker 05:
I think your question assumes both that it's a reviewable guideline and that it implements the authority of Section 1225B1.

[00:04:43] Speaker 03:
But the only thing you said about it not being a guideline is that the statute says guideline and this says guidance.

[00:04:50] Speaker 05:
No, what I actually said, Your Honor, separate from that, is that the statute refers to under the authority of this subsection.

[00:04:57] Speaker 05:
Again, 1225B1.

[00:04:58] Speaker 05:
Nothing in this guidance articulates the right to counsel, articulates where credible fear is.

[00:05:04] Speaker 02:
Are you saying the guidance doesn't implement anything?

[00:05:06] Speaker 05:
It doesn't implement anything under the authority of that section.

[00:05:09] Speaker 05:
It does implement AB, which itself implements a different statutory provision.

[00:05:14] Speaker 05:
So if you go work back from what the guidance does, the guidance implements the Attorney General's decision.

[00:05:19] Speaker 05:
doesn't add anything new to that decision, it just says here's this decision, here's how you need to implement it, it extensively quotes that decision and just FYI going forward, matter of AB is binding law, as any other board or attorney general decision, it's what does matter of AB do?

[00:05:33] Speaker 05:
So I think you have to look at what matter of AB does.

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In order to understand what the guidance does, matter of AB implements section 1158.

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So the entirety of plaintiff's theory and what the district court did turns on the fact that the statute refers to significant possibility standard.

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That's what defines what a credible fear of persecution is.

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Incorporates by reference section 1158.

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And so it says, and I'm paraphrasing, in order to show a significant possibility of asylum under Section 1158.

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That's what the test is.

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Can you show a significant possibility that you could ultimately satisfy the Section 1158 standard?

[00:06:08] Speaker 05:
That's what Matter of AB is implementing, Section 1158.

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That's what the guidance is implementing, including its choice of law provision, how to apply Section 1158.

[00:06:19] Speaker 05:
Nothing in the guidance or matter of AB says anything about the procedures that one uses to go about determining whether someone has a significant possibility of demonstrating persecution.

[00:06:27] Speaker 03:
But AB's footnote specifically says that this applies to 1225B proceeding.

[00:06:35] Speaker 05:
Well, it doesn't quite say that, and I think the footnote says

[00:06:39] Speaker 03:
Does the sense, so two answers to that.

[00:06:48] Speaker 03:
Here's the footnote.

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Accordingly, few such claims would satisfy the legal standards to determine whether the alien has a credible fear of persecution.

[00:06:58] Speaker 03:
That's what it says.

[00:06:58] Speaker 05:
Right.

[00:06:59] Speaker 05:
Take away that footnote.

[00:07:01] Speaker 03:
As if the footnote didn't exist.

[00:07:02] Speaker 05:
The footnote's there.

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This is not just concerning the statute for this case.

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I think even plaintiffs and district court know that because they have a backup argument.

[00:07:11] Speaker 05:
That it doesn't matter if the footnote exists.

[00:07:13] Speaker 05:
Because Matter of AB implements a substantive asylum standard that then gets applied in credit for your proceedings, it's therefore implementing those proceedings with or without this footnote.

[00:07:21] Speaker 05:
So the footnote's a distraction.

[00:07:22] Speaker 05:
The footnote doesn't matter.

[00:07:24] Speaker 05:
All the footnote does is say, hey, asylum officers, I've just issued a precedent decision.

[00:07:29] Speaker 05:
You, like everybody else, has to follow it.

[00:07:31] Speaker 05:
That's all that footnote does.

[00:07:32] Speaker 05:
If you take away the footnote plaintiffs could still be here arguing.

[00:07:35] Speaker 03:
Do you really think we want to say in an opinion written by the Attorney General of the United States that his footnote is just irrelevant?

[00:07:43] Speaker 05:
I'd leave it to you how you wish to prefer to the footnote.

[00:07:45] Speaker 05:
All I'm saying is the footnote is not outcome-determinant here.

[00:07:49] Speaker 05:
They'd be here in this case with or without the footnote.

[00:07:52] Speaker 05:
All the footnote does from our perspective is remind line officers they have to follow the binding precedents of the attorney general.

[00:07:57] Speaker 05:
I think there's another sort of problem with what the district court did here, and this sort of is relevant to the jurisdictional argument.

[00:08:04] Speaker 05:
Let's assume

[00:08:06] Speaker 05:
If the court was right, it could review some aspect of a substantive asylum law, which for the reasons we just explained, it cannot.

[00:08:13] Speaker 05:
So the court just drove right through three other statutory provisions that do not allow it to implement any sort of nationwide perspective injunction like it did here, to essentially tell the attorney general or USCIS going forward, this is how you are going to construe section 1225B1, and this is how you're going to construe section 1158.

[00:08:33] Speaker 05:
I think the district court and plaintiffs give short shrift to these provisions, but we cite them in our brief.

[00:08:37] Speaker 05:
1252E1 essentially says, literally, no court shall have jurisdiction to enter declaratory injunctive or other equitable relief unless specifically authorized by another subsection.

[00:08:46] Speaker 05:
There is no other subsection that authorizes that.

[00:08:48] Speaker 05:
1252E3 authorizes a determination.

[00:08:52] Speaker 05:
And as we lay out in our brief, we think that's more akin to sort of set aside relief for these plaintiffs.

[00:08:56] Speaker 05:
Nothing in the statute authorizes a prospective injunction that essentially

[00:09:01] Speaker 05:
uh... constitutionalizes in a sense, because there's no way to get around it now, unless Congress steps in to rewrite this injunction as to what asylum law is.

[00:09:10] Speaker 05:
That's completely backwards.

[00:09:12] Speaker 05:
The Attorney General, through case-by-case adjudication, based on the facts before the Attorney General, or USAS asylum officers in credible fear proceedings, makes those determinations, and the district court here has just essentially neutralized that entire process.

[00:09:26] Speaker 05:
The second statute I would point to is 1252F, which

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Again, it says no nationwide injunctions other than as applied to individual aliens.

[00:09:36] Speaker 05:
Again, the district court didn't really address that.

[00:09:38] Speaker 05:
And third, this is sort of another clue as to what Congress really meant here.

[00:09:43] Speaker 05:
We have a statute 8 USC 1252A2A3.

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Which doesn't, unlike the other provisions in that statute, have a carve out for section 1252e review.

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And it says no review of determinations under section 1225b1b.

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That's the credible fear of determinations.

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All that together, at the very least, shows the district court had no authority to issue an injunction.

[00:10:03] Speaker 05:
But moreover, had no authority to essentially rewrite asylum law.

[00:10:08] Speaker 03:
Okay, I want to ask you a couple of questions about the merits.

[00:10:12] Speaker 03:
But for purposes of all of my questions, there's not that many.

[00:10:15] Speaker 03:
Don't worry.

[00:10:16] Speaker 03:
There's just a couple.

[00:10:17] Speaker 03:
I want you to make three assumptions.

[00:10:19] Speaker 03:
Number one, that I think the district court had jurisdiction to review the guidance.

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Number two, that unlike the district court, I don't see any statutory violations in the guidance.

[00:10:30] Speaker 03:
This is just an assumption, okay?

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And number three, that I agree with you about the point you just made about injunctions.

[00:10:37] Speaker 03:
So my questions have to do with the APA aspects of the guidance, arbitrary and comprehensive.

[00:10:44] Speaker 03:
So let's start with the choice of law, the circuit, that the guidance says you use the circuit court where the credible fear meeting occurs.

[00:10:56] Speaker 03:
I didn't see anything in the guidance that acknowledged that that was a change in the law.

[00:11:01] Speaker 03:
Did you?

[00:11:02] Speaker 03:
Is there anything in there?

[00:11:03] Speaker 05:
So I think as we articulated, this is the first time there is such a specific choice of law policy that USAS has issued, so they wouldn't have to acknowledge or identify a change.

[00:11:13] Speaker 03:
Do you disagree that up until this, officers were using the circuit, the most favorable circuit?

[00:11:21] Speaker 05:
there is a lesson plan that's in the record on page appendix 379 that allowed instructor asylum officers to do that unless there was a more specific alternative policy.

[00:11:32] Speaker 05:
This is that specific .

[00:11:33] Speaker 03:
.

[00:11:33] Speaker 03:
.

[00:11:33] Speaker 03:
Your argument then about this turns on the fact that there was no need to acknowledge that because there was no previous formal guidance, right?

[00:11:43] Speaker 05:
That's the first part of the argument.

[00:11:44] Speaker 03:
Do you have a case that supports that, that an agency is allowed

[00:11:50] Speaker 03:
to change informal policy without acknowledging it?

[00:11:54] Speaker 05:
Yes.

[00:11:54] Speaker 05:
Actually, we'd refer you to National Environmental.

[00:11:57] Speaker 05:
That's a 2018 case from the circuit we cite in our briefing that also relies on Fox Television.

[00:12:02] Speaker 05:
And all the agency needs to do in a choice of law situation like that is the statute doesn't prevent it.

[00:12:10] Speaker 03:
Fox Television says they have to acknowledge the change.

[00:12:12] Speaker 05:
It says, and the way they can acknowledge it, Fox Television says, is by making the change.

[00:12:16] Speaker 05:
They acknowledge that there was a policy, they've changed it.

[00:12:19] Speaker 03:
But where do they do that in the guidance?

[00:12:21] Speaker 05:
The guidance specifically points out that there is a problem, the venue uncertainty problem, that they don't know where these people will be if they go through proceedings or if they'll be in proceedings at all.

[00:12:32] Speaker 05:
And that is enough under Fox Television and the case, the national environmental case, to identify the problem.

[00:12:39] Speaker 05:
I think also, as you yourself identified in the Grant Medical case, Judge Tatel, that we cite.

[00:12:43] Speaker 05:
In which case?

[00:12:44] Speaker 05:
The Grant Medical case from 2017.

[00:12:49] Speaker 05:
The different law and a different circuit quote provides perfectly adequate reason to make such a change.

[00:12:54] Speaker 05:
And they identified the problem.

[00:12:56] Speaker 05:
They came up with a very reasonable way to deal with the solution.

[00:12:59] Speaker 05:
Plaintiffs, the plaintiff's solution, the district court... Let me just ask you a hypothetical.

[00:13:04] Speaker 03:
Suppose a person has their credible fear hearing, say, in Texas.

[00:13:10] Speaker 03:
And the Fifth Circuit law is very unfavorable and that person is excluded.

[00:13:18] Speaker 03:
But assume further that had the person

[00:13:23] Speaker 03:
had the officer found a credible fear, would have had his hearing, say, in New York in the Second Circuit, where the law is better.

[00:13:29] Speaker 03:
So by picking the local circuit, the risk is that the agency is excluding people who might in the end actually qualify for asylum.

[00:13:41] Speaker 03:
And true, you say, yes, this is easier to administer.

[00:13:46] Speaker 03:
But I didn't see any indication in the guidance that the agency had balanced

[00:13:51] Speaker 03:
that issue, namely the ease of administration against the potential impact on the other purposes of the statute, namely to ensure asylum for qualified people.

[00:14:02] Speaker 05:
Your question, Your Honor, assumes that the significant possibility standard has words that are not in the text.

[00:14:06] Speaker 05:
Significant possibility of demonstrating asylum under the law most favorable to the alien.

[00:14:10] Speaker 05:
That's nowhere in the statute.

[00:14:11] Speaker 03:
No, no, no.

[00:14:11] Speaker 03:
I told you when I started this that you ought to assume that I don't see any statutory violation here.

[00:14:19] Speaker 05:
Fair enough.

[00:14:20] Speaker 05:
But then my second response to that is that cuts both ways.

[00:14:22] Speaker 05:
So there's two things.

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First, we have a Fifth Circuit decision.

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In your very hypothetical, we've brought to the court's attention that goes 100% the other way from the district court.

[00:14:30] Speaker 05:
And USCIS officers are apparently supposed to apply 9th Circuit law or 7th Circuit law or 4th Circuit law, any law but the law binding in that circuit.

[00:14:37] Speaker 05:
And they made the perfectly sensible decision to say, no, we're not going to do that.

[00:14:41] Speaker 05:
And for a second reason, because we don't know if they're going to end up in the 2nd Circuit, we don't know where they're going to end up at all because you don't know if they're going to actually get a positive credible fear in them.

[00:14:50] Speaker 05:
There's both horizontal and vertical venue uncertainty.

[00:14:54] Speaker 05:
Plaintiffs only want to focus on the people that could have passed the test and therefore could have been in a more favorable jurisdiction, but many of these people will never pass the test.

[00:15:01] Speaker 05:
There's no reason why the law where they are situated shouldn't apply to them.

[00:15:05] Speaker 03:
I see my time is running out.

[00:15:07] Speaker 03:
I want to ask you about another aspect of it, about condone or the issue about condone or complete helplessness.

[00:15:16] Speaker 03:
Again, I don't assume I don't see any statutory problem here.

[00:15:20] Speaker 03:
Okay, no statutory problem.

[00:15:23] Speaker 03:
You say that condoner helplessness is just another way of describing, of describing unwilling and unable, right?

[00:15:32] Speaker 03:
That these are just interchangeable terms and that there's really been no change.

[00:15:37] Speaker 03:
Do I understand your position correctly?

[00:15:39] Speaker 05:
That that is part of our position, yes.

[00:15:40] Speaker 03:
Yeah, okay.

[00:15:41] Speaker 03:
But first of all,

[00:15:44] Speaker 03:
The words are totally different.

[00:15:47] Speaker 03:
Condone is completely different from a country might well be unwilling or unable, yet not condone something.

[00:15:55] Speaker 03:
More important, both AB and the guidance say, and here I'm quoting, that the applicant must show that the harm

[00:16:07] Speaker 03:
or suffering was inflicted by persons or organizations that his or her own government was unwilling to control, comma, such that the government either condoned the behavior or demonstrated a complete helplessness.

[00:16:23] Speaker 03:
So it's defining unwilling and unable as condone.

[00:16:28] Speaker 03:
It looks like a complete change in the law to me.

[00:16:31] Speaker 05:
A couple of responses to that, if I may.

[00:16:33] Speaker 05:
First, looking just at AB before the guidance, the attorney general used six different formulations of that standard.

[00:16:39] Speaker 03:
But the sentence I just read is in the guidance and in AB, right?

[00:16:44] Speaker 05:
Correct, but those aren't the only articulations of the standard, either in AB or the guidance.

[00:16:48] Speaker 05:
You're reading one sentence that plaintiffs take to mean a radical redefinition of the standard.

[00:16:55] Speaker 03:
Would you be comfortable with an opinion that said

[00:16:58] Speaker 03:
This condone and helplessness language is not a critical part of the opinion, and it's still the old unwilling and unable standard.

[00:17:07] Speaker 05:
Our view, and this is one that the Fifth Circuit has echoed since the decision, is that condone or complete helplessness is one way to articulate and make a finding of the unwilling and unable standard.

[00:17:16] Speaker 03:
I may or may not agree with the Fifth Circuit, but it would help me if you would explain to me.

[00:17:21] Speaker 03:
Your answer to my citing this question,

[00:17:24] Speaker 03:
which seems like it's defining unwilling and unable as condone.

[00:17:29] Speaker 03:
It says such that.

[00:17:30] Speaker 03:
Is that that's just an isolated sentence that isn't binding on anybody, right?

[00:17:34] Speaker 03:
That it's not a new statement of the law.

[00:17:37] Speaker 03:
Is that true?

[00:17:38] Speaker 05:
Let me put it this way.

[00:17:39] Speaker 05:
We would be

[00:17:39] Speaker 05:
perfectly content in fact the advocated this position district court we're asking for here for a holding saying the two standards are interchangeable that they're they would reach the same result there to kill at the same thing unable unwilling completely incomplete helplessness or condone all do the same thing show whether a country has lost sufficient control of it's it's law enforcement abilities that

[00:17:59] Speaker 05:
You can arguably say that it's the state condoning or unwilling or unable to protect the individual from the private violence.

[00:18:06] Speaker 05:
The two ways of reaching the same result, the Fifth Circuit has said that, the Seventh Circuit has said that, the Sixth Circuit has said that, the Eighth Circuit has said that, and the fact that there are four circuits that have said that and none that have gone the other way is, under this court's precedence, evidence that there is at least ambiguity that the Attorney General gets to construe.

[00:18:22] Speaker 05:
But our point is that he hasn't actually changed anything.

[00:18:25] Speaker 05:
You have four circuit courts siding against the district court here.

[00:18:28] Speaker 05:
At the very least, the attorney general should be given the deference.

[00:18:32] Speaker 05:
He should be accorded for reaching that same conclusion.

[00:18:33] Speaker 03:
I just have two more quick questions about the merits.

[00:18:36] Speaker 03:
I'll just ask you, could you address the social group issue?

[00:18:41] Speaker 03:
What is the government's view about what the social group rule now is?

[00:18:47] Speaker 05:
I think there's two possible social group issues.

[00:18:50] Speaker 05:
Could you clarify which one you want me to address?

[00:18:53] Speaker 05:
Our position really at the threshold is simply that what the Attorney General did in matter of A.B.

[00:18:59] Speaker 05:
is remind immigration judges and line officers that there is a standard, the standard laid out in M.E.V.G.E.

[00:19:05] Speaker 05:
MEVG, that they have to follow in every case, regardless if it is a private violence case, a domestic violence case, a gang violence case, or any other kind of private violence case.

[00:19:14] Speaker 05:
The same standards apply, immutability, particularity, and social distinction.

[00:19:18] Speaker 05:
So that's the general rule, if there is one at all, that the Attorney General reminded.

[00:19:22] Speaker 05:
He didn't create a new rule, he just reminded line officers to follow the old rule.

[00:19:26] Speaker 05:
And reversing ARCG, which skipped all those critical steps by assuming its conclusion,

[00:19:31] Speaker 05:
That was the new rule that plaintiffs were, they say they're not challenging the overturning of ARCG, but what they really want is a rule that says if you articulate a claim of domestic violence, premised on categorically domestic violence or gang violence, you've articulated a particular story.

[00:19:46] Speaker 03:
No.

[00:19:47] Speaker 03:
I'm glad you brought that up.

[00:19:51] Speaker 03:
So the facts, in AV it was Guatemalan women unable

[00:19:57] Speaker 03:
to lead the relationships, right?

[00:20:00] Speaker 03:
That was at the stand.

[00:20:02] Speaker 05:
That was the gist of it.

[00:20:03] Speaker 03:
Yeah, right.

[00:20:04] Speaker 03:
I'm curious to know how immigration officers are to treat .

[00:20:14] Speaker 03:
.

[00:20:15] Speaker 03:
.

[00:20:15] Speaker 03:
A woman shows up and makes this claim.

[00:20:18] Speaker 03:
Would the immigration officer know from that statement that she's expressed, that she's met the standard for, that she's met the standard for to get into the system here?

[00:20:35] Speaker 03:
That she's expressed a well-founded fear?

[00:20:38] Speaker 05:
If all she says, and the officer obviously has an obligation to elicit testimony, if all she says is, I'm in a relationship in Honduras and I'm unable to leave it, no, that would not under matter maybe satisfy the testimony.

[00:20:50] Speaker 03:
How would you know that without knowing why she's unable to leave it?

[00:20:55] Speaker 03:
It seems to me like you're right if she's unable to leave it because she fears

[00:20:59] Speaker 03:
retaliation by her husband.

[00:21:01] Speaker 03:
Then, I get your point, it's circular, right?

[00:21:04] Speaker 03:
But suppose she's unable to leave it because, say for example, she comes from a country where there's no divorce, or where divorced women face stigma and other problems in society.

[00:21:19] Speaker 03:
Suppose that's why she can't leave it.

[00:21:22] Speaker 05:
Leave so that fits perfectly your honor within the framework that a be reaffirmed again reaffirmed not created from whole cloth that you have to ask The questions you have to check the evidentiary boxes the group you just described It's not categorically barred if there's evidence that society views it is socially distinct Yeah others view it that way as a distinct group separate from just women in a relationship or men in a relationship And whether it's particular so it doesn't define literally everyone in the society or some broad amorphous group

[00:21:49] Speaker 05:
So you could in theory have that group if you check the boxes.

[00:21:53] Speaker 03:
So that's helpful because what you're saying to me is that Guatemalan women, if all we know is that Guatemalan women are unable to leave their relationships,

[00:22:02] Speaker 03:
The officer needs to know more.

[00:22:04] Speaker 03:
That's maybe okay, but maybe not okay.

[00:22:07] Speaker 03:
We just don't know, right?

[00:22:09] Speaker 05:
Well, that's what the problem with viewing this case in the vacuum is.

[00:22:11] Speaker 05:
This is why these cases are done case by case.

[00:22:12] Speaker 05:
Well, that's why I asked you a hypothetical so we would get out of the vacuum.

[00:22:15] Speaker 03:
Fair enough, Your Honor.

[00:22:17] Speaker 03:
Because these briefs, this stuff's hard to understand if you don't think about a specific case, right?

[00:22:24] Speaker 05:
which is why we have the petition for review process that does this case by case, another problem of what the district court did here.

[00:22:31] Speaker 05:
Your Honor, I'm happy to answer questions as long as you'd like me to.

[00:22:33] Speaker 03:
Do you want to reserve a couple minutes for rebuttal?

[00:22:35] Speaker 03:
I just actually have one more after this.

[00:22:37] Speaker 02:
And then I have some.

[00:22:40] Speaker 02:
Very good.

[00:22:41] Speaker 03:
What about, okay, I found, let me ask you about another case, okay?

[00:22:48] Speaker 03:
There's a case, I can't remember which circuit it's from, maybe it's the Seventh Circuit.

[00:22:53] Speaker 03:
Women who are members of tribes in Togo that practice female genital mutilation.

[00:23:02] Speaker 03:
How would that be treated under the guidance?

[00:23:06] Speaker 05:
So again, I don't know if you asked me to assume that there's going to be further questioning by an asylum officer or by an immigration judge.

[00:23:12] Speaker 03:
You can answer it any way you want.

[00:23:13] Speaker 03:
The woman comes up and she says, I am a member of a tribe in Togo that practices female genital mutilation.

[00:23:21] Speaker 03:
That's what she says.

[00:23:23] Speaker 03:
Now what happens next?

[00:23:25] Speaker 03:
And she says, I have a well-founded fear of persecution.

[00:23:28] Speaker 03:
That's what she says to the officer.

[00:23:30] Speaker 05:
I don't want to quibble with your characterization.

[00:23:32] Speaker 03:
So now he takes out the guidance in AB.

[00:23:34] Speaker 03:
What does that officer do?

[00:23:36] Speaker 05:
So there wouldn't be a well-founded fear of persecution yet.

[00:23:38] Speaker 05:
That's not the standard that's applied just yet.

[00:23:42] Speaker 05:
We first need to articulate whether there's a particular social group at all, and I understand that to be your question for the purpose of the guidance.

[00:23:47] Speaker 03:
Well, your point's well taken.

[00:23:49] Speaker 05:
So the individual officer or the reviewing immigration judge in credible fear or in normal removal proceedings, the immigration judge, the board and so forth, would

[00:23:57] Speaker 05:
Review the record.

[00:23:58] Speaker 05:
In this case, the asylum officer would elicit further testimony because that's not, again, none of these groups are categorically barred.

[00:24:05] Speaker 05:
That's again crystal clear in AB, in prior cases, in prior board decisions, and in the guidance.

[00:24:10] Speaker 05:
But there are questions you have to ask.

[00:24:12] Speaker 05:
Okay, let me ask you about this group you've just articulated, this clan or tribe of individuals who practice female genital mutilation.

[00:24:18] Speaker 05:
Well, on its face, to me at least, it sounds like that's a socially distinct group because it's based on a tribe or clan which has been recognized as socially distinct in some circumstances, and it's particular.

[00:24:28] Speaker 05:
It describes a small, narrow subset of individuals in that society who are both in that group and have female generations forced upon them.

[00:24:36] Speaker 05:
But you would ask the questions again.

[00:24:38] Speaker 05:
Is it immutable?

[00:24:39] Speaker 05:
Yes.

[00:24:40] Speaker 05:
That satisfies the immutability standard.

[00:24:42] Speaker 05:
I don't think we're talking about that.

[00:24:44] Speaker 05:
Is it particular?

[00:24:44] Speaker 05:
Is it socially distinct?

[00:24:46] Speaker 05:
You satisfy those boxes, you move on to the next step, which is, well, is the persecution on account of?

[00:24:52] Speaker 05:
So is there the nexus?

[00:24:52] Speaker 05:
And then finally, is the government unwilling or unable to stop it?

[00:24:56] Speaker 05:
And so that group could be, just like any of the other groups that we're hypothesizing here, could be, so long as it's not circularly defined.

[00:25:04] Speaker 05:
So the answer to your question is, that group could be a recognizable social group.

[00:25:09] Speaker 05:
You just, again, under AB, under MEVG, have to go through the steps.

[00:25:13] Speaker 05:
And all the matter of AB did, and all that the guidance does in repeating what matter of AB did, the USAS guidance, is remind asylum officers of the very simple point.

[00:25:21] Speaker 05:
You have to go through the steps.

[00:25:22] Speaker 05:
That's the rule.

[00:25:23] Speaker 05:
That's the only general rule that AB articulates.

[00:25:25] Speaker 03:
Judge Griffin, go ahead.

[00:25:31] Speaker 03:
I'm thinking about your answer to that question.

[00:25:33] Speaker 03:
The guidance has this bolded statement, which says that in general, membership in a social group defined by the member's vulnerability to domestic or gay violence will not establish the basis for credible fear.

[00:25:47] Speaker 03:
In the hypothetical we're just talking about,

[00:25:50] Speaker 03:
The woman from a tribe that practices female genital mutilation has articulated a group that's defined by the member's vulnerability.

[00:26:07] Speaker 03:
It sounds like under this bolded sentence, no matter what she says, she would be excluded.

[00:26:14] Speaker 03:
Is that true?

[00:26:16] Speaker 05:
No, I don't think that's right.

[00:26:18] Speaker 03:
Or should I read the word membership in a social group defined exclusively by the vulnerability?

[00:26:24] Speaker 03:
Maybe the word exclusively needs to be.

[00:26:26] Speaker 05:
I think the operative language in both AB and the guidance is defined, yes, independent of, not exclusively.

[00:26:33] Speaker 05:
That's what AB, that's what MBVG, the case that AB is repeating and reminding officers to follow says the harm must exist or the group must exist independent of the harm.

[00:26:43] Speaker 05:
This guidance, the bolded language and the guidance you reference, again, in general, prefaces that entire set of bolded language, so there's no general bar, there's no presumption that none of these groups will ever qualify, again.

[00:26:56] Speaker 05:
you check the boxes, you show particularity, you show social distinction, and you don't define the group, you have to define the group independently of the harm you get through.

[00:27:06] Speaker 05:
So the suggestion that there is now a categorical per se bar on these sorts of claims is incorrect, and I point out, again, the cases that have addressed this in the proper fora in the courts of appeals since the district court's decision, particularly I'm referring to Gonzales-Vellos in the Fifth Circuit and Amascua,

[00:27:23] Speaker 05:
Preciado in the 11th Circuit, which we gave to the court in 28 tailors, also say there is no general rule.

[00:27:29] Speaker 05:
Just follow the steps.

[00:27:30] Speaker 05:
And that's the general rule.

[00:27:31] Speaker 05:
Follow the steps.

[00:27:32] Speaker 05:
You can make your claim.

[00:27:33] Speaker 02:
I think I just have one question.

[00:27:36] Speaker 02:
Can I go back to the unwilling, unable and then condone and completely helpless?

[00:27:42] Speaker 02:
You're right and Judge Hiddle's right.

[00:27:44] Speaker 02:
It's more helpful to all of us to think of concrete examples.

[00:27:47] Speaker 02:
Let me give you an example.

[00:27:49] Speaker 02:
If you have a woman from Guatemala who claims that she's the victim of domestic abuse and it turns out that she has gone to the authorities and gotten a restraining order.

[00:28:04] Speaker 02:
But the restraining order was of no effect.

[00:28:06] Speaker 02:
It just burst right through the restraining order.

[00:28:10] Speaker 02:
What happens under unwilling and unable?

[00:28:14] Speaker 02:
If the standard is just, the only language we're using is unwilling and unable, what happens to that claim?

[00:28:20] Speaker 05:
Assuming, because the question assumes it's a particular social group that's cognizable and isn't circularly defined and so forth.

[00:28:26] Speaker 05:
It's just on unable and unwilling.

[00:28:28] Speaker 05:
So that's similar to the fact of the matter of AB, in part.

[00:28:30] Speaker 05:
They had a restraining order there.

[00:28:32] Speaker 05:
There was no suggestion the police weren't doing anything, and the attorney general, there's- That's not my hypothetical.

[00:28:37] Speaker 02:
It's not that police aren't doing anything.

[00:28:39] Speaker 02:
There's a restraining order that didn't work.

[00:28:42] Speaker 02:
The woman goes to the government, tries to get help, and help isn't successful.

[00:28:50] Speaker 05:
I'd have to fight the hypothetical of it and that I would need to know more, just like an asylum officer would ask a number of follow up questions.

[00:28:56] Speaker 05:
Well, tell me more about how many times did you go to the police or did the police say anything to you that suggested?

[00:29:02] Speaker 02:
She's not completely helpless there.

[00:29:04] Speaker 02:
She's gotten some help, but the help hasn't been enough.

[00:29:09] Speaker 02:
It seems to me that you have different, I'm pressing at the idea that, no, you actually have a different regime under unwilling and unable as opposed to condone and completely helpless.

[00:29:20] Speaker 05:
Well, no, I don't think so.

[00:29:21] Speaker 05:
And here's two answers to that.

[00:29:23] Speaker 05:
First, so unable or unwilling and condone sort of get you to the same place here, which is we're just not going to lift a finger or do anything about it.

[00:29:30] Speaker 05:
Right.

[00:29:31] Speaker 05:
Yes, you got your order, but good luck with that.

[00:29:33] Speaker 02:
Yeah, and the hypothetical I'm giving you is something was tried wasn't enough.

[00:29:38] Speaker 02:
It's not that the government turned a blind eye to it.

[00:29:40] Speaker 02:
The government tried to help, but it wasn't enough.

[00:29:43] Speaker 05:
I mean, again, condone and helpless is also disjunctive, just like unable and unwilling.

[00:29:46] Speaker 05:
So condone, unable and unwilling.

[00:29:48] Speaker 02:
I'm focusing on completely helpless.

[00:29:50] Speaker 02:
She's not completely helpless.

[00:29:52] Speaker 02:
She got some help, it wasn't enough.

[00:29:54] Speaker 02:
It seems to me, under the guidance, that may not be successful, whereas under unwilling and unable, that might have been a successful argument.

[00:30:05] Speaker 05:
I think the guidance does articulate that this would not be categorically barred.

[00:30:09] Speaker 05:
It would be a difficult showing to make.

[00:30:10] Speaker 05:
So with that evidence and that evidence alone, it would be a difficult showing to make, but it's not barred.

[00:30:14] Speaker 05:
Whereas under unwilling and unable, it... I think it would also be difficult to make under unwilling and unable.

[00:30:19] Speaker 05:
Because again, in both circumstances, condone or unwilling, unable, you have someone who has a restraining order and the government's not doing anything about the restraining order.

[00:30:26] Speaker 05:
In your hypothetical, I think you get to the same place.

[00:30:28] Speaker 02:
Yeah, that's not my hypothetical.

[00:30:30] Speaker 02:
The government is trying to do something about they're not successful.

[00:30:33] Speaker 05:
If the government is trying to do something, maybe I've misunderstood your hypothetical.

[00:30:37] Speaker 05:
If the government is trying to do something, I think it would be more difficult to make this showing under either standard.

[00:30:42] Speaker 05:
If the government is actually doing something, and again, that's in part the scenario in AB, there was a restraining order.

[00:30:48] Speaker 05:
The police did take some action.

[00:30:51] Speaker 05:
If it's not a perfect solution, they fail at their job, that's not a basis for asylum in most cases.

[00:30:57] Speaker 05:
And that's the same as the guidance.

[00:30:58] Speaker 05:
Thank you.

[00:30:59] Speaker 03:
One very last question, a question about remedy.

[00:31:05] Speaker 03:
Again, suppose I assume I don't see any statutory violations here at all, but also assume that I think, and these are both assumptions, they're hypotheticals, that I think that maybe some aspects of this might be arbitrary and capricious in the way we review APA cases.

[00:31:24] Speaker 03:
Do you see anything in the statute

[00:31:27] Speaker 03:
that would preclude a court from granting your standard APA remedy here, namely, vacature of a portion of the guidance that's arbitrary and capricious.

[00:31:39] Speaker 03:
No injunction, just standard vacature of an arbitrary and capricious portion of the guidance.

[00:31:47] Speaker 05:
I want to be clear, we're talking about the USCIS guidance document, not the attorney general's decision.

[00:31:51] Speaker 03:
No, just the guidance document.

[00:31:52] Speaker 05:
Just the guidance document.

[00:31:53] Speaker 03:
I'm not talking about the APA, no.

[00:31:56] Speaker 05:
I think two answers to that.

[00:31:58] Speaker 05:
First, the only word in the statute, admittedly narrow and limited on this, is determination.

[00:32:03] Speaker 05:
The court makes a final quote, determination, that this is or is not unlawful.

[00:32:08] Speaker 05:
We think that is more akin to a sort of declaration.

[00:32:11] Speaker 05:
You cannot use that determination going forward, but go back, do your homework, check the boxes, and you can do it if you do it the right way the next time.

[00:32:18] Speaker 05:
That's what we think the court can do.

[00:32:20] Speaker 05:
The words set aside don't appear in the statute.

[00:32:23] Speaker 05:
They appear in the APA.

[00:32:24] Speaker 05:
We think the remedy under 12-D2E3 is a unique, limited sort of remedy, so it doesn't necessarily entertain an APA remedy.

[00:32:31] Speaker 05:
It doesn't have that set aside language in there, and it doesn't have the Hobbs Act sort of remedy in joint application of.

[00:32:37] Speaker 05:
It's just a termination, a declaration that you can't do this going forward, but you're free to change the policy if you'd like, if you'd follow the correct steps, which is not what the district court did here.

[00:32:47] Speaker 03:
That's helpful.

[00:32:47] Speaker 03:
Thank you.

[00:32:57] Speaker 01:
Thank you, Your Honor.

[00:32:58] Speaker 01:
May it please the court, Cody Wapsi, ACLU, for the plaintiffs.

[00:33:02] Speaker 01:
Your Honors, the policies challenged in this case individually and collectively ratchet up the credible fear standards that we've been discussing.

[00:33:10] Speaker 01:
And Congress set that standard

[00:33:13] Speaker 01:
purposefully low and did so to ensure the genuine vulnerable asylum seekers like the plaintiffs in this case would not be summarily removed from the United States.

[00:33:22] Speaker 01:
I think the district court correctly enjoined those policies applying ordinary statutory construction and administrative law principles.

[00:33:31] Speaker 01:
You're going to address the jurisdiction.

[00:33:33] Speaker 01:
Absolutely.

[00:33:34] Speaker 01:
I'm happy to, Your Honor.

[00:33:36] Speaker 01:
Our claims fall squarely within the plain text of subsection 1252E3.

[00:33:42] Speaker 01:
We brought them within 60 days in the District of Columbia, and each of them challenge expedited removal policies, procedures, guidelines, etc.

[00:33:55] Speaker 01:
The government's position, as I understand it, is that none of this implements

[00:34:02] Speaker 01:
expedited removal because only procedures are to be found in the expedited removal statute, but that's just simply not true.

[00:34:12] Speaker 01:
The credible fear standard is part of 1225B and it is, I mean we can quibble about the words procedural or substantive, but it is an expedited removal standard and what these policies are doing are giving effect to that standard and telling adjudicators

[00:34:31] Speaker 01:
Here's how you should carry out the credible fear standard with regard to these various questions.

[00:34:38] Speaker 01:
Picking up on .

[00:34:39] Speaker 01:
.

[00:34:39] Speaker 01:
.

[00:34:39] Speaker 02:
You agree there's no jurisdiction to review individual determinations, right?

[00:34:43] Speaker 02:
You can't just come to court to say I'm dissatisfied with the results of the expedited removal proceeding.

[00:34:50] Speaker 01:
Within the E3 framework, that's right, Your Honor.

[00:34:53] Speaker 01:
We are not .

[00:34:54] Speaker 01:
.

[00:34:54] Speaker 01:
.

[00:34:54] Speaker 01:
What's different about this?

[00:34:57] Speaker 01:
That's part of what you're seeking here, right?

[00:34:59] Speaker 01:
You're seeking a change in individual determinations.

[00:35:02] Speaker 01:
Your Honor, we're not challenging the outcomes of the determinations of these individuals' cases.

[00:35:08] Speaker 01:
We're not saying, look at the facts of this particular credible fear interview, and it should have come out.

[00:35:13] Speaker 01:
You're saying, look at the law that was applied here.

[00:35:15] Speaker 01:
Exactly, Your Honor.

[00:35:15] Speaker 01:
And that's exactly what subsection E3 directs itself to.

[00:35:18] Speaker 01:
It says you need to look at the written policies, procedures, guidelines, et cetera.

[00:35:25] Speaker 01:
Obviously, we do have individual plaintiffs in this case, and they do have facts.

[00:35:31] Speaker 01:
And this court in ALA said, you know, those are people who can have standing to bring this kind of challenge.

[00:35:39] Speaker 01:
But we're not challenging the determination as such in this case.

[00:35:44] Speaker 01:
And so I don't think that there's any problem with regard to individual determinations.

[00:35:55] Speaker 01:
So getting back to the government's argument, this sort of process based argument, I just think that's entirely a textual.

[00:36:01] Speaker 01:
And one way you can tell it is, is that E3 lists out a number of different types of writings.

[00:36:07] Speaker 01:
And one of those is expedited removal procedures, but it also includes

[00:36:12] Speaker 01:
policy guidelines, et cetera, et cetera.

[00:36:14] Speaker 01:
Now, the government said something new at argument today, which is that guidance and guidelines mean different things.

[00:36:22] Speaker 01:
I'd submit that's both waived and also a distinction without a difference.

[00:36:27] Speaker 01:
As Judge Tatel pointed out, the guidance document in this case very specifically refers in its title that it is guidance about credible fear, it invokes the credible fear statute, and it's really shot through with discussion of

[00:36:42] Speaker 01:
credible fear, including some policies that apply really only in credible fear is relevant here.

[00:36:50] Speaker 01:
The government's other jurisdictional argument is that whatever E3 ordinarily provides review over,

[00:36:59] Speaker 01:
credible fear policies are categorically barred from review.

[00:37:03] Speaker 01:
And that's based on 1252A2A3.

[00:37:08] Speaker 01:
And I just point out, that's a really striking position for the government to be taking.

[00:37:12] Speaker 01:
On their jurisdictional view, they could enact a regulation that says no more credible fear policies, period.

[00:37:20] Speaker 01:
They could enact a policy that says instead of significant possibility of harm

[00:37:26] Speaker 01:
of eligibility for asylum, now it's going to be beyond a reasonable doubt, eligibility for asylum, and that there would be no review in E3 of that.

[00:37:35] Speaker 01:
That can't be right and isn't right, and that's because A2A3 is about individual determinations.

[00:37:43] Speaker 01:
It's the application of expedited removal to individual cases.

[00:37:49] Speaker 01:
And we know that in part by comparing it to the next Romanet subsection four, which is specifically about policies and procedures, which is what this case is about, and does include a carve out for review under subsection E.

[00:38:04] Speaker 01:
I think that's enough to respond to the A2A3 point.

[00:38:07] Speaker 01:
I do just want to put a marker down.

[00:38:09] Speaker 01:
We also think the government's reading in general of A2A3 is wrong and has to be wrong because it wipes out the individual habeas review under E2.

[00:38:19] Speaker 01:
But the court doesn't need to address what A2A3 means beyond that it doesn't apply here.

[00:38:26] Speaker 01:
In terms of remedies,

[00:38:32] Speaker 03:
Wait, before you get to remedy, let me talk about some of the elements of this that you object to.

[00:38:39] Speaker 03:
And again, can we do it in the context of an actual case?

[00:38:42] Speaker 03:
Let's take the facts of AB, okay?

[00:38:46] Speaker 03:
Married women in Guatemala unable to leave their relationships.

[00:38:51] Speaker 03:
Okay.

[00:38:51] Speaker 03:
So would you have any objection to that if what that meant was that

[00:38:58] Speaker 03:
The immigration officer has to be sure that when it says unable to leave their relationship, it isn't just fear of retaliation by the husband, but that it's something broader than that.

[00:39:16] Speaker 03:
that the group is broader.

[00:39:17] Speaker 03:
Maybe it's identified by the fact that women in this country, as I said to government counsel, can't get divorced, or that there's a stigma for divorce.

[00:39:26] Speaker 03:
There's something broader than just, you don't have a problem with that, do you?

[00:39:32] Speaker 01:
A couple of responses, Your Honor.

[00:39:34] Speaker 01:
I think that would go a long way towards resolving the real concrete problem here, which is, as Your Honor pointed out, that there could be all sorts of reasons why a woman .

[00:39:44] Speaker 01:
.

[00:39:44] Speaker 01:
.

[00:39:44] Speaker 03:
Because government counsel said that's what it means.

[00:39:48] Speaker 03:
That's the way he interprets this.

[00:39:51] Speaker 03:
He agreed with me that you don't know the answer to the question about this particular woman's eligibility until you ask a few more questions.

[00:40:00] Speaker 03:
And if the questions, I don't need to repeat myself, you see my point?

[00:40:05] Speaker 03:
And as I read your briefs, I thought this is what you wanted also, that this is the way you read it, that even under your view, married women in Guatemala unable to leave their relationships, if the unable to leave their relationships is in fact the fear of physical harm from the husband, you agree that that doesn't fit the standard because there's no broader

[00:40:30] Speaker 03:
factor defining the, quote, social group that she's a part of, right?

[00:40:36] Speaker 01:
We don't agree with that, but for a reason I'd like to explain.

[00:40:40] Speaker 03:
Gee, I thought we were getting close.

[00:40:44] Speaker 01:
Sorry.

[00:40:44] Speaker 01:
There's basically a technical reason why that's a problem.

[00:40:48] Speaker 01:
There is this circularity rule that starts in this case matter of CA that's cited and gets repeated over and over.

[00:40:54] Speaker 03:
This AB doesn't adopt the circularity rule, does it?

[00:40:57] Speaker 01:
It does.

[00:40:59] Speaker 03:
It's been around for a long time.

[00:41:01] Speaker 01:
I'm sorry, it doesn't adopt it for the first time.

[00:41:03] Speaker 01:
No, Your Honor.

[00:41:04] Speaker 01:
And so the question is really, the narrow legal question is what does that circularity rule mean?

[00:41:09] Speaker 01:
And I think you have to look at MEBG in the other cases.

[00:41:13] Speaker 01:
And we do not think that the group you just described, even if it's about persecution, would be technically circular within the way the agency has defined that term.

[00:41:24] Speaker 01:
Wait, I don't understand why.

[00:41:27] Speaker 01:
Certainly.

[00:41:27] Speaker 01:
And so that's because what the agency has said is the only groups that are circular are those that are exclusively defined by harm.

[00:41:35] Speaker 01:
The group you described has Guatemalan women in a relationship, so it's not exclusively defined by harm.

[00:41:42] Speaker 01:
Now, the agency might go back and say, we actually want a different circularity rule.

[00:41:47] Speaker 01:
We think that one's too narrow.

[00:41:49] Speaker 01:
They haven't done that here.

[00:41:51] Speaker 01:
They haven't given the reason explanation, but I do think it's a

[00:41:56] Speaker 01:
to respond to your practical question.

[00:41:58] Speaker 01:
I think there very well might be other problems with the group you described, including a failure of nexus.

[00:42:04] Speaker 01:
So if what you're saying is the group is

[00:42:08] Speaker 01:
basically, you know, women in a relationship who are going to be harmed, and then you're saying they're harmed because they're going to be harmed.

[00:42:14] Speaker 01:
That's a failure of nexus, but it's not that the social group is not cognizable.

[00:42:19] Speaker 01:
That's a technical nuance, I think, of immigration law that the court doesn't need to reach because the ultimate problem here, I think, for this policy is the factual assumption that you were pointing out, Judge Tatel, which is

[00:42:35] Speaker 01:
that there are all these various reasons that you might be unable to leave.

[00:42:39] Speaker 01:
Now, I want to point out the way.

[00:42:40] Speaker 03:
But you heard government counsel agree with me that those had to be taken into account.

[00:42:46] Speaker 01:
I heard government counsel say that.

[00:42:48] Speaker 01:
Our point is that's not what the policy says.

[00:42:51] Speaker 03:
So what in the policy doesn't say that?

[00:42:53] Speaker 01:
Yes, your honor.

[00:42:54] Speaker 03:
In fact, when you say let's, OK.

[00:43:02] Speaker 03:
As I read your brief, you rely on two sentences in the guidance.

[00:43:08] Speaker 03:
One says that AB casts doubt on whether a group defined solely by the ability to leave a relationship can be sufficiently particular.

[00:43:18] Speaker 03:
That's not a rule.

[00:43:19] Speaker 03:
That's just a statement about what the Attorney General thinks AB stands for, just that it casts doubt on that.

[00:43:26] Speaker 03:
That's not a rule, is it?

[00:43:28] Speaker 01:
No, Your Honor, I wouldn't primarily rely on that.

[00:43:31] Speaker 01:
I would rely on the statement in the guidance, and this is at Appendix 357, that these inability to leave groups would generally not share a narrowing characteristic.

[00:43:42] Speaker 03:
Is that the bolded language you're talking about?

[00:43:45] Speaker 01:
I believe the bolded language is the domestic violence rule that's at App 358.

[00:43:53] Speaker 01:
So no, this is a non-bold font.

[00:43:56] Speaker 03:
I'm sorry to interrupt you, really, but when I looked at your brief, you cited to a portion of the guidance that had these two sentences.

[00:44:05] Speaker 03:
The one you just agreed with me was a prediction, not a statement.

[00:44:08] Speaker 03:
The other one was, where a social group is defined solely by the ability to leave a relationship.

[00:44:18] Speaker 03:
That doesn't seem problematical to me either, because it has the word solely.

[00:44:25] Speaker 03:
In other words, if that is the sole reason, and the sole reason is potential abuse by the husband, my impression was you were okay with that.

[00:44:39] Speaker 01:
I agree that if that is the way your honor is reading the guidance, then that would be an ordinary application of the circularity rule.

[00:44:46] Speaker 01:
I do think that what it's talking about in context is women in Guatemala in a marriage, married women,

[00:44:55] Speaker 01:
who are unable to leave, and that is not defined solely by .

[00:44:58] Speaker 01:
.

[00:44:58] Speaker 03:
.

[00:44:59] Speaker 03:
We actually don't know, right?

[00:45:02] Speaker 03:
Correct.

[00:45:02] Speaker 03:
With just that statement, the married woman in Guatemala unable to leave a relationship, as I was discussing with government counsel, that doesn't tell us enough information, right?

[00:45:15] Speaker 03:
Because we don't know why she's

[00:45:17] Speaker 03:
That's exactly right.

[00:45:19] Speaker 01:
I would just like to make a point about how this works in practice.

[00:45:23] Speaker 01:
Because as the government agrees, and this is addressed in the district court's decision below, the applicant in a credible fear interview is under no obligation to come forward with a technical social group, any kind of legal theory.

[00:45:38] Speaker 01:
They're required to come forward with facts.

[00:45:41] Speaker 01:
And so the question is, when an applicant comes to the adjudicator and says,

[00:45:46] Speaker 01:
for 20 years I was brutalized and raped by my spouse.

[00:45:51] Speaker 01:
How is the adjudicator to understand that claim?

[00:45:56] Speaker 01:
And so if all the policy is telling the adjudicator is, well you think about a group that's entirely defined by harm and then you reject that group,

[00:46:07] Speaker 01:
then we agree there's no problem with it.

[00:46:08] Speaker 01:
But I don't think that's really a practical way to understand what this is telling adjudicators.

[00:46:13] Speaker 01:
I think it's telling them essentially to assume that that's going to be the social group, that it's going to be defined entirely by harm and then rejected on that basis.

[00:46:21] Speaker 01:
And as Your Honor pointed out, I think it's connected to the general rule about domestic violence and gang claims in that way, although there's

[00:46:29] Speaker 01:
It's somewhat slippery in terms of the various ways the guidance is saying it.

[00:46:35] Speaker 01:
I think taking a step back and looking at it practically, when an adjudicator gets this document, it's going to be clear to the adjudicator

[00:46:45] Speaker 01:
Maybe not exactly why they're expected to deny domestic violence and gang claims, but certainly that they are expected to deny those claims.

[00:46:54] Speaker 01:
And so certainly I think you may be able to parse individual phrases in various ways, but that's how we ultimately read the guidance as a whole.

[00:47:06] Speaker 01:
I would like to touch on the remedies issues unless there's more questions.

[00:47:11] Speaker 03:
Would you just say one thing about the presumption, your argument that these establish a presumption?

[00:47:18] Speaker 03:
Is it the bolded sentence?

[00:47:26] Speaker 01:
Yes, Your Honor, there's two parts of the guidance.

[00:47:29] Speaker 01:
I think that this is the general rule against domestic violence and gang claims.

[00:47:33] Speaker 01:
So there's the bolded portion.

[00:47:35] Speaker 01:
That's at app 358.

[00:47:37] Speaker 01:
And then at app 362, again, the guidance comes back to this and reiterates it in slightly different terms.

[00:47:48] Speaker 01:
And then obviously, the statements in AB itself.

[00:47:57] Speaker 01:
In terms of remedies, excuse me, I'm sorry.

[00:48:00] Speaker 01:
Yes, please.

[00:48:00] Speaker 03:
I forgot to ask this.

[00:48:01] Speaker 03:
I understood your brief on the social group issue.

[00:48:06] Speaker 03:
Am I right that

[00:48:07] Speaker 03:
You're okay with AB.

[00:48:09] Speaker 03:
You just don't think the guidance accurately reflects AB, correct?

[00:48:13] Speaker 01:
Well, we think there's actually no holding in AB on this question, basically, that what AB said was that the BIA in the previous case, ARCG, just failed to consider circularity, and obviously we have no problem.

[00:48:26] Speaker 01:
And that's okay with you, right?

[00:48:27] Speaker 01:
We have no problem with saying you have to consider circularity.

[00:48:30] Speaker 03:
So your basic, so your problem with this is that AB on this issue was fine, made sense.

[00:48:36] Speaker 03:
previous decision hadn't grappled with it, but that the guidance has turned us into something more.

[00:48:41] Speaker 03:
Is that your theory?

[00:48:42] Speaker 01:
That's exactly right now.

[00:48:43] Speaker 01:
Obviously, we're not conceding to the extent AB said something differently.

[00:48:50] Speaker 01:
We have challenged AB itself.

[00:48:51] Speaker 03:
Well, but on this issue, I read your brief as saying you're okay with AB.

[00:48:55] Speaker 01:
We're okay with AB insofar as the court agrees with our reading of AB.

[00:49:00] Speaker 01:
If the court says that AB... That doesn't help me.

[00:49:04] Speaker 03:
You didn't point to any language in AB that you found problematic.

[00:49:08] Speaker 01:
I agree, and that's exactly why we read it the way we do.

[00:49:14] Speaker 01:
In terms of the remedies issues, if I may, the government's position... Oh, excuse me.

[00:49:22] Speaker 01:
I see I'm over time, if I may.

[00:49:25] Speaker 01:
Do you have a question?

[00:49:26] Speaker 03:
Oh, please.

[00:49:27] Speaker 03:
I'd like to hear his answer, too.

[00:49:29] Speaker 01:
Yes, the government's position has been something of a moving target on the remedies.

[00:49:34] Speaker 01:
In their briefing, actually, they conceded, and at the beginning of their presentation, that set-aside remedies are available.

[00:49:41] Speaker 01:
That does mean vacator is an ordinary matter, but it appeared towards the end of the presentation they were no longer conceding it.

[00:49:48] Speaker 01:
You know, our basic point here is that

[00:49:53] Speaker 01:
The E3 doesn't specify any remedies.

[00:49:57] Speaker 01:
And so the ordinary presumption, which is that all the remedies available to federal courts would apply here.

[00:50:04] Speaker 01:
In arguing otherwise, they're putting an inordinate amount of weight on this word determination.

[00:50:08] Speaker 01:
But determination does not, as an ordinary matter, mean declaratory judgment.

[00:50:13] Speaker 01:
We know it doesn't in 1252 because Congress used those two words differently.

[00:50:18] Speaker 01:
And if they're reading determination to mean declaratory judgment and set aside remedy, but not injunction, they've offered no

[00:50:27] Speaker 01:
evidence for why the word should be read that way.

[00:50:30] Speaker 01:
There's no textual argument about that.

[00:50:32] Speaker 01:
There's no cases that say that.

[00:50:35] Speaker 01:
And so what I think they're trying to escape is that their reading of 1252 E1A as requiring remedies to be specified means that there would be no remedy available in an E3 action.

[00:50:49] Speaker 01:
Obviously that can't be what Congress intended and that just goes to show their reading of E1A is wrong for all the reasons we've said in our briefing.

[00:50:57] Speaker 03:
One last, just a factual question.

[00:51:00] Speaker 03:
Under the district court's order, have the individual plaintiffs had new hearings?

[00:51:07] Speaker 01:
Your Honor, all but one.

[00:51:08] Speaker 01:
One of our plaintiffs is still out of the country.

[00:51:12] Speaker 03:
But the others all had new hearings under

[00:51:17] Speaker 03:
Pre-guidance law?

[00:51:18] Speaker 01:
That's correct.

[00:51:18] Speaker 03:
And what happened in those?

[00:51:20] Speaker 01:
Can you tell us?

[00:51:20] Speaker 01:
So they either, let me back up a moment.

[00:51:24] Speaker 01:
Some of them actually got new hearings before the district court's injunction, which is reflected in the record here.

[00:51:30] Speaker 01:
The others got afterwards.

[00:51:32] Speaker 01:
They were all, either they passed credible fear or the government just put them into regular removal proceedings.

[00:51:39] Speaker 01:
And those are at various stages at this point.

[00:51:42] Speaker 03:
Thank you.

[00:51:43] Speaker 01:
Any further questions?

[00:51:44] Speaker 01:
Thank you.

[00:51:46] Speaker 03:
Any time left?

[00:51:49] Speaker 03:
All right, why don't you take two minutes?

[00:51:54] Speaker 05:
Thank you, Your Honor, just very quickly.

[00:51:57] Speaker 05:
First, just I wanted to clarify in response to your question earlier, Judge Griffith, I would refer you to the Hoare and Galena cases cited in our briefs from the Seventh Circuit, which are on point directly with your hypothetical applying the condone helpless standard and actually finding the government unable and unwilling using that standard in a circumstance similar to yours where the government has done something.

[00:52:15] Speaker 05:
So that is a circumstance that is covered by the cases going back to 2000 and a dozen cases.

[00:52:19] Speaker 03:
Did that case have the guidance before it?

[00:52:21] Speaker 05:
Well, that case is from the year 2000.

[00:52:22] Speaker 05:
That's what I thought.

[00:52:23] Speaker 03:
So it didn't tell us what the guidance says, right?

[00:52:26] Speaker 05:
No, but it tells you that this is a term that's been used interchangeably in the hypothetical.

[00:52:30] Speaker 03:
But it didn't have the sentence that I quoted to you.

[00:52:33] Speaker 03:
That wasn't before the Seventh Circuit, the sentence that says, unwilling or unable, such as.

[00:52:39] Speaker 05:
It did not have that sentence, but I don't know that that matters.

[00:52:42] Speaker 05:
The second point quickly, just on the remedy and the judicial review.

[00:52:46] Speaker 05:
Again, I repeat the distinction we've drawn between substantive law and everything else that 1250-25B1 does.

[00:52:53] Speaker 05:
The result of finding jurisdiction here is that Section 1150A means

[00:52:57] Speaker 05:
three different things in three different circumstances.

[00:52:59] Speaker 05:
It means one thing in normal removal proceedings.

[00:53:01] Speaker 05:
It means another thing in front of USCIS officers.

[00:53:04] Speaker 05:
And it means a third thing in front of immigration judges reviewing credible fear determinations because the injunction doesn't apply to immigration judges reviewing credible fear determinations on the choice of law issue and on the substance of law on that point.

[00:53:16] Speaker 05:
So you have three different interpretations of Section 1158.

[00:53:20] Speaker 05:
We know from Fifth Court's precedence and Supreme Court precedence, the words have to mean the same thing even if they're in different contexts.

[00:53:26] Speaker 05:
Last, I just do this independently, exclusively, solely issue.

[00:53:33] Speaker 05:
The point simply here is

[00:53:35] Speaker 05:
asylum officers cannot define groups circularly, and that's in part what the guidance does now.

[00:53:39] Speaker 05:
So if an alien is in normal removal proceedings, they can't articulate a circular social group, and in credible fear, where we agree on this at this point with plaintiffs, that the alien doesn't have a burden to articulate, delineate, if you will, the issue in front of the asylum officer, don't use circular social groups.

[00:53:55] Speaker 05:
So I think we agree on that, and there's really no issue on that anymore.

[00:53:58] Speaker 05:
So for those reasons, and the others I've raised, we urge the court to reverse the injunction.

[00:54:02] Speaker 05:
Thank you.

[00:54:02] Speaker 03:
All right, call the next case.