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Case number 19-5359, United States Department of Homeland Security, et al.

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Mr. Sheldon for the appellant, Mr. Ramkumar for the appellee.

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May it please the court.

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My name is Robert Sheldon.

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I'm arguing on behalf of the appellant, Alder Cruz.

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I'd like to reserve three minutes for a rebuttal.

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Virtually every person in the United States has ancestors who came here as immigrants.

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Many of them were fleeing persecution.

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Even those who came in the Mayflower were fleeing religious persecution.

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None of these ancestors were forced by armed police to go to a place controlled by criminal gangs where they or their families were likely to be murdered, raped, kidnapped, or robbed, especially with no hearings or procedure.

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On June 24th, 2018, President Trump tweeted, when somebody comes in, we must immediately, with no judges or court cases, bring them back from where they came.

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Then in announcing the migrant protection protocols, the defendants denounced misguided court decisions and outdated laws.

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We can see the administration first made the decision to force 65,000 asylum seekers, including 16,000 children, to Mexico.

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And then they looked around for a law to justify their actions.

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These asylum seekers included Mr. Cruz, a college senior who escaped Guatemala when his life was threatened by gangs who had already murdered his best friend because of his sister's church activities.

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So the defendants found the statute, 8 USC 1225 B2C, and decided to claim this for their legal authorization.

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However, the statute doesn't work at all for their purposes.

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I'd like to explain first why the MPB isn't authorized

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by the law at all.

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Second, why it especially isn't legal for people like Mr. Cruz, who are in the United States when they were apprehended.

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And I'd like to move on to due process, withholding of removal, international law, injunction factors, and other arguments.

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Before you start, can I just ask for what the status of his removal proceeding is?

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He has barely begun.

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I mean, he went to master hearings, and he hasn't even been able to submit his asylum application

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He was supposed to submit it in court, but the court was canceled because, you know, whatever, all the courts, all the MVP courts are canceled right now.

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So his was among them.

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So he's never even submitted his asylum application.

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Thank you.

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So section 1225 has two relevant subsections.

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B1, which is people with no documentations and fake documents, which is obviously which all the MVP people, including Mr. Cruz, should be under.

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And B2, which is for other people.

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Basically, those who arrived to the United States legally with documentation, but they're inadmissible.

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In other words, they've committed some crime or they have some other inadmissibility.

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The Supreme Court in Jennings versus Rodriguez said these are two separate categories.

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And the Ninth Circuit and Innovation Law Labs found that these subsections are mutually exclusive, which we completely agree with.

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Obviously, a B2 can't be a B1 because they have documents.

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But at the same time, there's no way a B2 can be a B1 for several reasons.

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First of all, the title is Other Aliens, which as the Ninth Circuit said, other means other.

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And then second, the statute is, this is the main reason.

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I mean, the statute specifically and expressly has a section called exceptions.

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And it specifically says you cannot apply B2 to someone to whom B1 applies.

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Mr. Sheldon, let me interrupt if you could.

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If someone who is eligible for B1 doesn't fit ever into the B2 box, how is it possible for immigration to do what they frequently do, which is take someone eligible for the B1 box and instead send them into the non-expedited proceedings provided for in the B2 box?

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Okay, so that's a great question.

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You know, the statute clearly says they can't do that.

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But then the, you know, the BIA in a case called ERM said they can go ahead and place them in proceedings.

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I mean, you know, the BIA basically said that when Congress said, you know, shall be removed if they don't go into credible fear, they actually meant will.

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I mean, those are the words.

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So I take it, it sounds like your argument is that although it is frequently done,

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The statute actually prohibits it.

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And if we adopt your reading of the statute, then we would be concluding that this common practice by Homeland Security is illegal.

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No, Your Honor, not at all.

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Um,

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Because EMR doesn't say that.

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I mean, that's what the government says EMR says, but they're completely, you know, that's just simply not true at all.

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EMR says they can be placed in removal proceedings.

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Nowhere does it say they can be placed into B2, which is just a complete invention on the part of the government.

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Let me try asking a different way.

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Is it legal for Homeland Security to take someone who qualifies for B1 expedite at removal?

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and to put them into non-expedited removal procedures?

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Absolutely not.

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I mean, there's no provision whatsoever.

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The law clearly says they can't do it, and EMR doesn't.

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ER, I'm sorry, doesn't say that either.

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I mean, like I said, they needed to find us a statute, and they just forced us in, but it doesn't work at all.

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Is there a tension between your two statutory arguments?

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Let me tell you why I think there might be, and then you can tell me why.

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If I'm off base, you can tell me why I'm off base.

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On the one hand, you make the argument that you've just been making that an immigrant is either in the B1 box or the B2 box.

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The B2 box with regard to undocumented immigrants applies to people who have been in the country for two years or more.

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That's because the B1 box applies to people who are arriving without documents and to people who have been here for less than two years without documents.

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If that theory is right, that the B2 box only applies to undocumented, among the undocumented population, the B2 box only applies to those who have been here for two years or more.

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How can your second argument be correct that B2-3

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when it says an immigrant who is arriving in the present tense, how could that ever apply to anyone?

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Because as you've defined it, in the universe of undocumented immigrants at least, B23 is not supposed to apply to anybody who's been here less than, B23 is not supposed to apply to anyone who has been in the country less than two years,

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At the same time, you can't be arriving if you've been here longer than two years.

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Right.

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Thank you, Your Honor.

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That's a completely misreading of the statute.

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The statute divides into two groups.

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B1 is people without documents and people who have fake documents.

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B2 is everybody else.

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So this is just a

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I mean, I guess the government likes to create, what they're trying to do is create a lot of smoke and make this a lot more complicated, which, you know, immigration law is complicated, but the statute is really pretty simple in that sense.

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It's, I mean, B-2 is- Mr. Sheldon, let me ask, can you give me an example of an undocumented immigrant that B-2-3 would apply to?

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Your honor, that's okay.

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basically everybody who has documentation.

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In other words, anyone, let's say they're coming from... No, no, no.

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Mr. Sheldon, can you give me an example of an undocumented immigrant that B-2-3 would apply to?

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Yeah, someone who came in a tourist visa and overstayed.

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I mean, they are legally entitled to be in the country and then they overstayed.

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Or, yeah, yeah, I mean, actually B-2 is supposed to be more for people who are coming to the United States.

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So it really wouldn't apply that much to people in the United States if that's what the court's referring to.

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But it could.

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I mean, it could under the terms.

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But it's really designed for people that are arriving to the United States that have documents, that have a legal status, have a visa, have a legal status, but they're inadmissible.

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That's what B-2 is for, which obviously excludes everybody in the MPP.

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I mean, it's really very, very straightforward.

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Can I ask a fact question?

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I take it Mr. Cruz was 300 yards from the border.

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Do you know how long he had been across the US border timewise?

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I'm sorry, Your Honor.

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I mean, we don't know the exact time.

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He says long enough to go 1,182 feet.

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It wasn't a terribly long time, but certainly.

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My last question for now, and then I'll get out of your way and out of my colleague's way.

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Thurossingham says that an immigrant who is 25 yards, it dealt with an immigrant who was 25 yards to the border.

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And it said that that immigrant

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has not entered the country, that immigrant is arriving.

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I suspect you will tell me that anyone who's 26 yards or farther from the border has entered and is no longer currently arriving.

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Is that right?

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Yes, Your Honor, that's completely correct, and for a lot of reasons.

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The due process clause, I think the court would, Judge Walker, you would agree that it's an extremely important goal of the framers of the Declaration of the Constitution.

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They wanted to protect individuals from the executive branch more than any other purpose of the Constitution.

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And then we've got the fact that when they wrote the Constitution, I mean, there were immigrants everywhere.

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So then they deliberately, when they wrote the due process clause, they used the word persons instead of the word

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citizens because they wanted to include immigrants.

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I mean, that's obvious.

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For example, three of the first members of the US Supreme Court were immigrants.

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I mean, the idea that they wouldn't have applied it to immigrants is actually quite absurd.

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So I mean, that's why, you know, that's the reason.

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So there's been, and not only that, there's been a long history throughout, you know, the entire, since the Constitution was written, that they said, you know, a bright line rule.

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If you're in the United States, you have a right to due process.

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If you're outside the United States, you don't.

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And that's been as clear, you know, I've got tons of quotes I can, you know, where they said anyone in the United States, legal, not legal, these are major cases that have been cited over and over.

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You know, Matthews v. Diaz, I mean, on and on, Zadvaitis, and just a whole series of cases where they, you know, way, way back, back to 1886, where they said anyone within the jurisdiction of the United States entitled to due process.

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And, you know, this case, Thoracic Eum comes along, and it's kind of an aberration.

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I mean, they didn't,

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I mean, it's kind of the first time the Supreme Court has decided not to give due process to someone physically in the United States.

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Although, you know, the government comes up with all these arguments, but they're just not true.

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I mean, you know, the question is sometimes in the Rafferty case from the circuit and Landon v. Placenta, it's whether to extend it to people outside who are entering.

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But the law is very clear.

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If you're in the United States, you have a right to due process.

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If you're at the border, the entry doctrine is another story.

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But that doesn't apply in this case.

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So they're asking him, you know, it's very troubling because, I mean, there literally is no principled way to limit it.

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I mean, if immigrants have due process, if everyone has due process, because it says persons, then why not citizens?

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And, you know, can you apply it to US citizens on the border?

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I mean, why not?

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So, you know, we just think it's a very troubling decision.

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We would ask the court to limit it to the 25 yards, which they actually did.

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I mean, in their own decision, they said it should only be applied to people who are in

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the respondent's position, which is 25 yards from the board, and also people who were caught, which my response, you know, the appellant here wasn't caught.

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He turned himself in.

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So we think that's a distinction.

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I would just ask the court to limit thoracogym to the facts, which is what the court actually did.

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Thank you.

[00:12:48] Speaker 04:
Can I ask you about your, and I don't speak French, so I'll say your non-refoulement interview.

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Sorry, butchering that for the French people.

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If he were, what do you think that would entitle him to beyond the hearing that he already got?

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Is it just review by an immigration judge, or do you think in judicial review of the immigration judge's decision, what are you saying that, since he eventually got the interview, is your complaint only about the process for that interview, or are you claiming review process?

[00:13:27] Speaker 04:
I'm just unclear.

[00:13:29] Speaker 02:
Thank you, Your Honor.

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That's, you know, I mean, basically, to quote Judge Fletcher in the Ninth Circuit, I mean, you're giving them nothing.

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I mean, they don't even ask them the question.

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They don't say, are you afraid to go to Mexico?

[00:13:41] Speaker 04:
But in his interview, they did ask him that.

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But not before they threw him out of the country.

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I mean, this was after he was brought back a month later.

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But before he was thrown out of the country, he wasn't asked anything.

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And they're expecting somebody to go to, you know, the

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the border patrol and say, I'm afraid to go to Mexico, which you have to look at these people.

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I mean, they've been abused.

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Some of them have been abused by their own governments, by their own police.

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He got a later interview.

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If he had gotten the same interview he got later, right before they returned them to Mexico for the first time, would that have sufficed?

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For a lot of reasons, no.

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I mean, the standard that they're giving is more likely than not, which is the highest standard that they could possibly get.

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I mean, incredible fear, they ask, you know, do you have a credible fear, even which is a very low standard.

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So it's like one tenth of the standard.

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This is extremely high standard that they're giving right at the initial stage.

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I mean, I, you know, it's basically, you know, ever since the 1200s.

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I mean, there's certain basic

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requirements to due process.

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And one of them is to have an objective.

[00:14:47] Speaker 04:
I just want to talk about, sorry, I don't want to lose track of what I'm asking.

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I'm sorry, the international law.

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The obligations for non-refilement.

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So your first point is that it should have happened right away the first time before he went.

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And the standard of review is wrong.

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They should ask him.

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He shouldn't have to spontaneously raise the concerns.

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Is there anything beyond that?

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notice before the hearing.

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I mean, there's a lot of things he should have been given, right to counsel.

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I mean, lawyers are pretty important to these procedures, more than even if it was Americans.

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I mean, these are people, some of them are children.

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I mean, they're 10-year-old children.

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Some of them are, they've been raped in their countries.

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They've suffered horrific persecution.

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I mean, to expect them just to know what to do in a foreign country.

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They don't even give them a translator, by the way.

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I mean, that's not even required.

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It's really, I mean, Judge Fletcher said you're giving them nothing.

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I mean, literally, there's nothing there.

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A right to if they ask, they get a hearing, and then the highest possible standard is applied to them.

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So there's no way this meets either due process or the United States obligations under the withholding of removal statute, which is very clear.

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You cannot refool somebody.

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if they will be subject to persecution, then the government tries to get around it by saying, well, it's Mexico.

[00:16:13] Speaker 02:
But nowhere does it say you can't be sent back to your, it doesn't say it has to be your homeland.

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It says to any country, and that would include Mexico.

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So clearly, the government has an obligation to ask questions and to give them some kind of a fair hearing, something that's not just someone basically supposedly asking them questions without any

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you know, with no process whatsoever.

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And then it's supposedly reviewed.

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And apparently, you know, just anecdotally, I mean, the reviews are basically, you know, if it gets granted, then the reviewer just turns it around and says, no, you shouldn't have granted this case.

[00:16:49] Speaker 03:
Thank you, Mr. Schell.

[00:16:50] Speaker 03:
Let me ask, is there anybody else on the panel who has a question?

[00:16:54] Speaker 03:
Because we're out of time.

[00:16:55] Speaker 02:
OK, you're right.

[00:16:57] Speaker 02:
I haven't even gotten to my main argument, which is the arriving alien.

[00:17:00] Speaker 02:
that he was in the United States, which I really would like an opportunity to.

[00:17:06] Speaker 03:
Go ahead.

[00:17:06] Speaker 03:
I thought you had discussed that argument with Judge Walker.

[00:17:09] Speaker 02:
No, Your Honor.

[00:17:10] Speaker 02:
I mean, so our first argument is the statute doesn't apply to anybody.

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The MPP should not be applied at all.

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And that, we think, is 100%.

[00:17:19] Speaker 02:
But then our even stronger argument is that it certainly shouldn't be applied to people who are in the United States, because the statute, right on its face,

[00:17:29] Speaker 02:
people who are arriving on land.

[00:17:33] Speaker 02:
The title says arriving, and then the subsection says arriving on land.

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And arriving is a very plain meaning.

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I mean, everybody knows what arriving means as a court.

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In this case, Bolat Vazquez said, the only other court that's looked at this, I mean, they said, look, you're either arriving or you arrived.

[00:17:52] Speaker 02:
There's only two possibilities.

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And the client arrived.

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Sorry, the appellant arrived.

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He's not arriving.

[00:17:58] Speaker 04:
The Supreme Court definitely said in Therogastium that it's not just the moment of crossing the border.

[00:18:07] Speaker 02:
Right, so that's due process, Your Honor.

[00:18:09] Speaker 02:
We're just talking about the statute here.

[00:18:10] Speaker 02:
I mean, the statute, they have no right to use the statute against somebody in the United States.

[00:18:14] Speaker 02:
The statute says arriving on land.

[00:18:17] Speaker 02:
I mean, my client was not arriving.

[00:18:19] Speaker 02:
The statute doesn't apply.

[00:18:21] Speaker 02:
Even if they had the due process right to do this, the statute just can't be more clear.

[00:18:25] Speaker 02:
I mean, arriving on land is not

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You know, it's a very plain meaning.

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We don't need to use any textual analysis.

[00:18:31] Speaker 02:
And then, you know, the word arriving on land is not used a lot.

[00:18:35] Speaker 02:
But the word arriving is used as arriving alien.

[00:18:39] Speaker 02:
And that's a very, very common phrase in immigration.

[00:18:42] Speaker 02:
And arriving alien means somebody who's arriving at a port of entry.

[00:18:45] Speaker 02:
The definition is very clear.

[00:18:48] Speaker 02:
It's under HCFR 1001.1 Q. Is someone who's coming or attempting to come to a port of entry

[00:18:55] Speaker 02:
So, you know, I mean, they just really cannot use this.

[00:19:01] Speaker 03:
We have the parenthetical in this particular provision, whether or not the port of entry.

[00:19:05] Speaker 02:
Right.

[00:19:06] Speaker 02:
So then they're using this convoluted explanation.

[00:19:08] Speaker 02:
So, of course, they're basically saying Congress doesn't know how to say inside the United States.

[00:19:13] Speaker 02:
And when they said inside the United States, they actually said whether or not a designated port of entry, which, of course, you know, I mean, why wouldn't Congress just say it if they were planning to overturn years and years of law?

[00:19:24] Speaker 02:
But then, you know, and then they're claiming they have a right to apply it 86, 96 hours after entry, which, you know, I mean, they're saying someone 96 hours in the United States is arriving according to their definition, whether or not.

[00:19:39] Speaker 02:
But anyways, we would just really like to give an explanation for that.

[00:19:41] Speaker 02:
I mean, there is a very clear, there is a very simple explanation, which is it says whether or not at a port of entry, a port of entry is defined as a place with a port director.

[00:19:51] Speaker 02:
Okay, and it just turns out that there's a lot of places on the Canadian border, which are called border crossings, but they're not called ports of entry.

[00:20:00] Speaker 02:
And, you know, and I mean, I can give one, it's called Port Covington on the New York Quebec border, but there's many, and they're just little border crossings with maybe 100 people a day.

[00:20:10] Speaker 02:
And that's what Congress meant.

[00:20:13] Speaker 06:
I mean, that's a great- So Mr. Sheldon, let's take that example.

[00:20:15] Speaker 06:
Let's say that there is a border crossing between Canada and the United States, but it's not a port of entry.

[00:20:22] Speaker 06:
2 BC applies there.

[00:20:24] Speaker 06:
Give me an example of someone who would fall under 2 BC at one of these Canadian US border crossings.

[00:20:38] Speaker 06:
How far into the United States are they in order to trigger 2 BC?

[00:20:43] Speaker 02:
No, border crossings are exactly the same as ports of entry, except they're smaller.

[00:20:49] Speaker 02:
I mean, that's the only difference.

[00:20:51] Speaker 02:
So they're, you know, they're little, little crossing.

[00:20:52] Speaker 02:
So they would stop them as they're crossing the border before they cross the border.

[00:20:56] Speaker 06:
You're saying they were stopping with one foot in Canada and one foot in the United States?

[00:21:00] Speaker 02:
No, Your Honor, they stopped them at the border crossing.

[00:21:02] Speaker 02:
It's exactly the same as a port of entry.

[00:21:04] Speaker 02:
They stopped them and they, I mean, Congress just, okay, let me just another, just quick.

[00:21:09] Speaker 02:
I mean, when we get to this, this whole section, the, the, the, the contiguous removal.

[00:21:14] Speaker 02:
Who were they referring to?

[00:21:16] Speaker 02:
It's really a question.

[00:21:18] Speaker 02:
Why did they put in this whole statute?

[00:21:20] Speaker 02:
And we don't think it had anything to do with Central Americans.

[00:21:23] Speaker 02:
And the question is, who's arriving at the US border that has a right to enter, but is inadmissible?

[00:21:29] Speaker 02:
And it's not Europeans, because they would fly here.

[00:21:32] Speaker 02:
They wouldn't come to a port of entry, the border.

[00:21:35] Speaker 02:
It's not Asians.

[00:21:36] Speaker 02:
It's not Latin Americans.

[00:21:37] Speaker 02:
Not even Central Americans.

[00:21:38] Speaker 02:
They would fly here if they have a visa.

[00:21:40] Speaker 02:
They don't drive up.

[00:21:41] Speaker 02:
So really, we think it applies to Canadians.

[00:21:44] Speaker 02:
And that was the whole purpose of this statute, is really, I mean, it's 35 million people on the US border that are legally entitled to enter, and many of them are inadmissible.

[00:21:56] Speaker 02:
And it actually makes sense.

[00:21:57] Speaker 02:
I mean, who wouldn't rather be in Canada, you know, in Toronto or Vancouver, while you're waiting for the proceeding?

[00:22:04] Speaker 02:
And I just wanted, this comes directly from the case matter of Sanchez Avila, which is the case which was the inspiration for this whole statute.

[00:22:13] Speaker 02:
the statutory section, and it just, it says in that case, it says on page 454, the service states along the northern border of the United States, aliens are routinely returned to Canada to wait their exclusion hearings.

[00:22:23] Speaker 02:
In Buffalo, New York, for example, approximately 120 to 140 aliens are placed into exclusion proceedings each week and returned to Canada to wait their hearings.

[00:22:30] Speaker 02:
Parole of an alien into the United States from Canada to wait exclusion areas are rare exceptions.

[00:22:34] Speaker 02:
In other words, this was really required for Canada, and it actually makes a lot of sense.

[00:22:39] Speaker 02:
That's what the statute was put in there for.

[00:22:41] Speaker 02:
If you read Matter of Sanchez Avila, you know, it was really put in for a very specific purpose and never crossed Congress's mind that this was the way it's being used.

[00:22:51] Speaker 02:
And that's, you know, there's so much proof of that.

[00:22:54] Speaker 02:
You can mention Mexicans, like they don't even say maybe a Mexican would want asylum, which, you know,

[00:22:59] Speaker 02:
And they spent so much time writing all these provisions of B-1.

[00:23:03] Speaker 02:
I mean, Senator Leahy and others were fighting to make sure it included all these rights for asylum seekers.

[00:23:08] Speaker 02:
And then the government wants us to believe just that they simply threw in this provision.

[00:23:12] Speaker 02:
Oh, yeah, you can throw them into Mexico with no protections whatsoever.

[00:23:15] Speaker 02:
That's not what it's for, Your Honor.

[00:23:20] Speaker 02:
So really, it doesn't apply.

[00:23:21] Speaker 02:
I mean, what they said in the Ninth Circuit, they just said that there's no plausible way this statute can be read.

[00:23:29] Speaker 02:
to apply to the MPP.

[00:23:34] Speaker 02:
And then they said the government's making baseless arguments in support of an illegal policy.

[00:23:39] Speaker 02:
And that's pretty much what it is.

[00:23:42] Speaker 02:
But they're not even considering the fact that because the Ninth Circuit, the people weren't even in the United States.

[00:23:49] Speaker 02:
So my client was in the United States.

[00:23:51] Speaker 02:
The opponent was in the United States, which makes the case so much stronger because of the language arriving on land and then the due process arguments.

[00:24:00] Speaker 03:
All right, Mr. Sheldon, we'll let you reserve a little time for.

[00:24:03] Speaker 03:
We're out of time.

[00:24:05] Speaker 03:
We hear from the United States.

[00:24:11] Speaker 01:
May it please the court, Archith, Rob, more for the government.

[00:24:14] Speaker 01:
The district court did not abuse its discretion in denying the preliminary injunction motion.

[00:24:21] Speaker 01:
With the court's permission, the government will address the statutory claims first, the non-refoulement claims second, the constitutional claims third, and will then briefly conclude by addressing irreparable harm.

[00:24:34] Speaker 03:
Yeah, can I just ask you to reverse that order for just one moment?

[00:24:39] Speaker 03:
Sorry.

[00:24:41] Speaker 03:
This question of irreparable harm, I'm not saying we are, but again, hypothetically, if we were to decide

[00:24:49] Speaker 03:
Mr. Sheldon is right as a matter of statutory construction on one or both of his arguments, then is irreparable harm relevant.

[00:25:00] Speaker 03:
That is, not if we decide likely victor on the merits, but if we decide he is the victor on the merits.

[00:25:11] Speaker 01:
The government's response would be that that consideration would still be relevant, your honor.

[00:25:15] Speaker 01:
And the reason for that is that this court has always described irreparable imminent harm as a critical part of the four factor calculus used to assess preliminary injunction motions.

[00:25:26] Speaker 01:
And importantly, the showing of irreparable harm.

[00:25:29] Speaker 03:
Are you familiar with our opinion in the United States Association of Reptile Keepers versus Zinke 2017 opinion?

[00:25:37] Speaker 01:
Briefly, your honor.

[00:25:38] Speaker 03:
Okay, well, in that case, we held that if we, that we can in reviewing preliminary injunction issue, we can decide fully the merits, because it's the first question.

[00:25:48] Speaker 03:
And if we decide the merits fully and decide that he is correct, that this is a statutory violation, that's the end of the matter.

[00:26:00] Speaker 03:
And it makes sense that that would be the end of the matter, because whether there is harm to the government or not, or harm to

[00:26:07] Speaker 03:
The plaintiff or not, once we decided the merits, there's nothing left to be decided.

[00:26:13] Speaker 01:
Yes.

[00:26:13] Speaker 01:
So, your honor, in that situation, the governor would submit that it would essentially be a conversion to some sort of motion.

[00:26:20] Speaker 01:
But again, that is simply not the posture of this case.

[00:26:23] Speaker 01:
And in any event, the government strongly disagrees.

[00:26:26] Speaker 01:
that Mr. Cruz has shown a likelihood of success in the merits.

[00:26:30] Speaker 03:
Let me just, I understand your argument on the second point, but on the first point, let me just read from our own opinion.

[00:26:36] Speaker 03:
We note that the procedural context of this appeal, which was from a preliminary injunction, does not prevent us from definitively deciding the merits of the clause's meaning.

[00:26:50] Speaker 03:
I mean, I think we've decided this question.

[00:26:51] Speaker 03:
I don't mean to belabor it.

[00:26:52] Speaker 03:
But if we were to decide that you're wrong, and not just that he's likely to succeed on the merits of a statutory argument, but that he does succeed, that would be the end of the matter.

[00:27:04] Speaker 03:
Just like in any case, once we'd conclude that the government violates the statute, we vacate the regulation under the APA.

[00:27:15] Speaker 03:
But now you can go back to your first argument.

[00:27:18] Speaker 06:
Before you do that, let me ask one more procedural question.

[00:27:23] Speaker 06:
If the Supreme Court grants cert on innovative labs before we've issued a decision, I'm sure that Mr. Cruz would say we should continue full speed ahead and decide our case.

[00:27:41] Speaker 06:
What do you say we should do?

[00:27:44] Speaker 01:
The government shares that view as well, Your Honor, and the reason for that is this appeal raises a number of distinct issues not raised in the petition currently pending before the Supreme Court.

[00:27:56] Speaker 01:
So turning first to the two statutory claims.

[00:27:59] Speaker 03:
Do you know the status?

[00:28:03] Speaker 03:
When was cert filed in that case?

[00:28:06] Speaker 03:
Do we know conference listing?

[00:28:08] Speaker 03:
Do you know anything about that?

[00:28:10] Speaker 01:
We do, Your Honor.

[00:28:11] Speaker 01:
My understanding is the Supreme Court is slated to consider the petition at its September 29th conference.

[00:28:17] Speaker 01:
And of course, the government will promptly inform this court in the event that cert is granted.

[00:28:22] Speaker 01:
OK, thank you.

[00:28:24] Speaker 01:
So turning first to the two statutory claims, Cruz makes two arguments on appeal.

[00:28:29] Speaker 01:
First, that he is not an alien described in subparagraph A, because he could have been placed in expedited removal proceedings, even though he was not.

[00:28:39] Speaker 01:
Second, Cruz argues that he was not arriving on land when he was apprehended shortly after illegally crossing the border.

[00:28:47] Speaker 01:
And the government will address each of those arguments in turn.

[00:28:51] Speaker 01:
First, Cruz is an alien described in subparagraph A, because aliens described in subparagraph A are applicants for admission who are not clearly and beyond a doubt entitled to be admitted, who are placed in full removal proceedings under section 1229A.

[00:29:07] Speaker 01:
Cruz is an applicant for admission who was not clearly and beyond a doubt entitled to be admitted, who was placed in full removal proceedings under section 1229A.

[00:29:15] Speaker 01:
Hang on.

[00:29:16] Speaker 04:
Hang on.

[00:29:17] Speaker 04:
The statute says subject to subparagraphs B.

[00:29:20] Speaker 04:
and C. So that language is all subject to subparagraph B, which then says subparagraph A shall not apply to an alien who is a crewman, someone to whom paragraph one applies, or who is a STIL-X.

[00:29:37] Speaker 04:
So we have to, if you're within those exceptions, then you don't go to subsection two here.

[00:29:48] Speaker 04:
Right, C, for instance.

[00:29:49] Speaker 04:
Correct?

[00:29:51] Speaker 01:
Yes, Your Honor.

[00:29:52] Speaker 01:
So Cruz's argument rises and falls entirely with Section 1225B2B2.

[00:29:57] Speaker 01:
That is, he claims that subparagraph A does not apply to him because he is an alien to whom Section 1225... Well, let me back up and just to have some context here.

[00:30:06] Speaker 04:
If he were a stowaway, the other, one of the neighboring provisions, could the government still put him into Section 1229A proceedings as a matter of its own prosecutorial discretion or statutory interpretation?

[00:30:22] Speaker 01:
So the BIA discussed this, Your Honor, in matter of ERM and LRM.

[00:30:27] Speaker 01:
The INA prohibits DHS from placing stowaways in full removal proceedings.

[00:30:32] Speaker 01:
It makes clear that they lack.

[00:30:34] Speaker 04:
So that third exception is someone who categorically cannot be put into these proceedings.

[00:30:38] Speaker 04:
What if you were a crewman?

[00:30:41] Speaker 01:
So if you were a crewman, Your Honor, my understanding is you would be similarly situated to an alien like Mr. Cruz, who could have been placed in expedited removal proceedings but was not.

[00:30:51] Speaker 04:
And in this case, section 12.5B1- So B3 there is a categorical prohibition, but B1 and B2 are not, is your position?

[00:31:01] Speaker 01:
Yes, Your Honor.

[00:31:03] Speaker 01:
And as the government demonstrated in its brief, the reason section 12.5B1 does not apply to crews is because the categories of aliens amenable to being placed in expedited and full removal proceedings overlap.

[00:31:17] Speaker 01:
That is to say, aliens who lack proper documentation

[00:31:21] Speaker 01:
Mr. Cruz, who could theoretically be placed in expedited removal proceedings, are also applicants for admission who are not clearly and beyond a doubt entitled to be admitted.

[00:31:31] Speaker 04:
Congress didn't seem to think they overlapped.

[00:31:33] Speaker 04:
It says, it entitles subsection B, inspection of other aliens.

[00:31:38] Speaker 04:
And that other alien's heading was Congress's duly enacted choice of phrasing.

[00:31:44] Speaker 04:
So it seemed to think there wasn't this overlap.

[00:31:49] Speaker 01:
So Your Honor, the government's view is the view articulated in the Ninth Circuit's motions panel decision in innovation one, which is the other aliens and the differentiation between the categories only occurs after the inspection decision is made.

[00:32:04] Speaker 01:
And again, that stems not just from the overlap I mentioned, but also from the plain text of section 1225 B1A1.

[00:32:12] Speaker 01:
Section 1225 B1A1 notes

[00:32:15] Speaker 01:
that an alien inadmissible on specified grounds shall be ordered removed without further hearing or review unless that alien is referred for and passes a credible fear interview.

[00:32:27] Speaker 01:
Section 1225B2A, by contrast, provides for a different process whereby the alien is entitled to a full removal proceeding before an immigration judge.

[00:32:36] Speaker 01:
And indeed, Jennings described the two provisions in the same manner.

[00:32:40] Speaker 04:
Jennings very much described these as too distinct.

[00:32:44] Speaker 04:
categories of aliens.

[00:32:48] Speaker 04:
Very, describe them out as, mark them out quite distinctly.

[00:32:55] Speaker 04:
So I'm not sure what to do.

[00:32:57] Speaker 04:
Is Mr. Cruz someone to whom the expedited removal provision applies, but the government chose not to put him through those proceedings and chose to give him different proceedings?

[00:33:13] Speaker 01:
Your honor, the government's view is that Mr. Cruz is not an alien to whom Section 1225B1 applies, and I want to circle back to Jennings briefly and the fact that he described the two categories as separate because, again, the government's view is this comes back to what

[00:33:28] Speaker 01:
the Ninth Circuit articulated in its motions panel decision, which is these are post-inspection mutually exclusive categories, not pre-inspection mutually exclusive categories.

[00:33:39] Speaker 01:
And the reason for that stems, again, from the overlap between the aliens amenable to being placed in both proceedings, as well as the fact that just by the plain text of Section 1225B1A1, by its terms, it does not apply to Mr. Cruz.

[00:33:53] Speaker 01:
He was not ordered removed without further hearing or review,

[00:33:57] Speaker 01:
nor was he referred for, for a credible fear interview.

[00:34:00] Speaker 01:
Instead, he was entitled to a full removal proceeding before immigration.

[00:34:03] Speaker 04:
Oh, wait, but the, the, the, the, the ordered without further hearing is not a description of people who are covered by the expedited removal provision.

[00:34:12] Speaker 04:
It's a command to the officer as to what they should do with someone who is arriving.

[00:34:19] Speaker 04:
Right?

[00:34:22] Speaker 04:
It's not part of the definition of who

[00:34:26] Speaker 04:
is subject to expedited removal.

[00:34:28] Speaker 04:
It says, what will happen to him?

[00:34:32] Speaker 01:
Yes, Your Honor, but the government's view is that provision uses the word shall and commands that immigration officers shall order the alien based on specified intermissibility grounds order the alien removed without further hearing or review.

[00:34:46] Speaker 01:
And that simply did not occur here.

[00:34:48] Speaker 01:
So in other words, there are two- So you couldn't apply expedited removal to him.

[00:34:52] Speaker 04:
You could never have applied expedited removal to him.

[00:34:56] Speaker 04:
Could you have?

[00:34:56] Speaker 01:
The government's view is that DHS does possess prosecutorial discretion to apply expedited removal to similarly situated aliens, but elected not to exercise that discretion in this particular case.

[00:35:10] Speaker 04:
So he is someone to whom, I guess in your view, both the expedited removal and the 1229A proceedings apply.

[00:35:21] Speaker 04:
And so you chose.

[00:35:25] Speaker 01:
The only reason I want to disagree with that characterization is the government would not concede that he is an alien to whom section 1225 B1 applies in any way because he is an applicant for admission.

[00:35:36] Speaker 04:
What do you mean by prosecutorial discretion?

[00:35:38] Speaker 04:
I mean, if it doesn't apply to him, there's no prosecutorial discretion at all.

[00:35:44] Speaker 01:
The reason I mentioned that is

[00:35:46] Speaker 01:
There are no fixed immutable categories of B1 and B2 applicants.

[00:35:51] Speaker 01:
And this is the fundamental error that the Ninth Circuit made in Dean Merritt's decision that it issued, which is that it assumed that there was this taxonomy whereby aliens arrive at the border with a fixed category and that aliens who lack proper documentation are categorically B1 applicants.

[00:36:08] Speaker 01:
But that is simply not the case.

[00:36:10] Speaker 04:
But the other things in B, crewmen and stowaways, are pretty much categorical status.

[00:36:16] Speaker 04:
right?

[00:36:17] Speaker 04:
That's a categorical status.

[00:36:18] Speaker 04:
So whether you're either a criminal or not, correct?

[00:36:23] Speaker 01:
Yes, your honor.

[00:36:24] Speaker 04:
But again, I wouldn't be to sorry, capital B Roman at two have the same operation as capital B Roman at one and capital B Roman at three.

[00:36:38] Speaker 01:
So again, Your Honor, the government would just go back to the overlap between the two provisions, the categories of aliens amenable to being placed in both provisions, and would also point this court to matter of ERM and LRM, which described the purpose of Section 1225 B2B2, which was just to make clear that aliens who are actually placed in expedited removal proceedings lack an entitlement to a full removal proceeding because that would produce an incongruent result.

[00:37:08] Speaker 01:
And here, there's no.

[00:37:09] Speaker 01:
I'm sorry.

[00:37:10] Speaker 04:
I think I didn't hear.

[00:37:11] Speaker 04:
Could you say that again?

[00:37:12] Speaker 04:
I think I'm not sure I heard properly.

[00:37:14] Speaker 04:
I apologize.

[00:37:16] Speaker 01:
Yes, your honor.

[00:37:17] Speaker 01:
So in matter of ERM and LRM, the BIA examined the purpose of section 1225B2B2, which is central to this appeal.

[00:37:26] Speaker 01:
And in that case concluded that it did not strip DHS of prosecutorial discretion to place aliens like Mr. Cruz in full removal proceedings, but rather simply served a clarifying function that aliens who are actually placed in expedited removal proceedings

[00:37:42] Speaker 01:
are not entitled to formal proceedings.

[00:37:45] Speaker 01:
And so the government's view is based on that limited clarifying function.

[00:37:49] Speaker 01:
There is no basis to conclude that in the same provision, Congress intended to exempt a large swath of aliens from contiguous territory return.

[00:37:59] Speaker 01:
Turning to the next statutory argument, in the government's view, Mr. Cruz's claim that he was not arriving on land when he was apprehended shortly after crossing the border illegally is foreclosed by the BIA's recent decision in matter of NBCV, which the government notified the court of via its Rule 28 jail letter.

[00:38:18] Speaker 01:
as the factual circumstances there are substantially similar to the circumstances here.

[00:38:23] Speaker 01:
The BIA's decision in matter of MDCV is reasonable, is consistent with the plain text of Section 1225B2C, and is entitled to Chevron deference.

[00:38:36] Speaker 01:
In matter of NBCV, the BIA drew heavily on the fact that both section 1225A1, which defines applicants for admission, and section 1225B2C both use the phrase whether or not at a designated port of arrival, and accordingly concluded that an alien apprehended near the border shortly after unlawful entry was arriving on land within the meaning of section 1225B2C.

[00:39:01] Speaker 06:
And the government's view is- Mr. Rockmark, if you can finish the sentence.

[00:39:07] Speaker 01:
The government's views that decision is controlling on this issue.

[00:39:12] Speaker 06:
It's well now I have another question.

[00:39:15] Speaker 06:
Your argument is that a BIA opinion is controlling on the DC circuit.

[00:39:21] Speaker 06:
I'm new here, but

[00:39:23] Speaker 01:
So the government's view, Your Honor, is that the BIA's opinion is entitled to Chevron deference, and that comes both from the INA and, as the Supreme Court noted in INS v. Aguirre, the fact that the INA specifically makes clear that the Attorney General's rulings on questions of law are controlling, and the Attorney General has the authority to delegate that power to the BIA.

[00:39:48] Speaker 06:
OK, let me ask the question I was going to ask.

[00:39:52] Speaker 06:
Same question I asked to Mr. Sheldon.

[00:39:53] Speaker 06:
Do you know how long Mr. Cruz was in the United States timewise, seconds, minutes, hours?

[00:40:01] Speaker 01:
So there is not a specific record finding on that point, your honor.

[00:40:05] Speaker 01:
Page 116 of the appendix is the closest the district court came, I believe.

[00:40:10] Speaker 01:
The district court concluded, based on Mr. Cruz's sworn statement, that after crossing the border, he immediately surrendered to immigration agents.

[00:40:18] Speaker 01:
My understanding is he crossed the border illegally in the middle of the night on May 10th and

[00:40:23] Speaker 01:
It appears to be that within a matter of hours, he surrendered himself to immigration agents, but there is no specific finding on this point.

[00:40:30] Speaker 04:
Well, hang on.

[00:40:31] Speaker 04:
Do you have a theory?

[00:40:32] Speaker 04:
I'm sorry, but I'll just say the form I-213 gives the dates and the time that was submitted by Mr. Sheldon.

[00:40:41] Speaker 04:
And it's actually arrived in one day and detained the next day, because it was late at night.

[00:40:46] Speaker 04:
But it gives the exact dates and times.

[00:40:48] Speaker 04:
So I don't know how you say it's not in the record.

[00:40:52] Speaker 01:
Yes, ma'am.

[00:40:55] Speaker 01:
Yeah, I was just referring to the record before the district court.

[00:40:58] Speaker 01:
The I-213 form, I believe, was submitted as part of a judicial notice motion after appellate proceedings.

[00:41:05] Speaker 04:
The government's form, you don't dispute the form?

[00:41:08] Speaker 04:
You don't think we can take notice of it?

[00:41:11] Speaker 01:
No.

[00:41:11] Speaker 01:
The government does not dispute that form, Your Honor.

[00:41:13] Speaker 04:
Do we have dates and times?

[00:41:18] Speaker 01:
Yes, Your Honor.

[00:41:18] Speaker 04:
It looks like it's about 90 minutes.

[00:41:21] Speaker 01:
Yes, Your Honor.

[00:41:22] Speaker 04:
And it crossed over from one day to the next day.

[00:41:25] Speaker 01:
Yes, that's the government's understanding as well.

[00:41:28] Speaker 04:
The only reason... BIA's decision that talked about entry talked about entry the same day.

[00:41:36] Speaker 04:
The same day.

[00:41:39] Speaker 04:
We only have a BIA decision that says the same entry on the same... Entry and detention on the same day.

[00:41:44] Speaker 04:
And with, I think there, it might have been 30 yards.

[00:41:49] Speaker 04:
It's still an entry.

[00:41:52] Speaker 04:
But that's not this case.

[00:41:54] Speaker 01:
So the government's view, Your Honor, is that the facts are substantially similar and that the BIA's opinion did not depend on the physical distance the alien had traveled, but rather on the statutory text and the fact that accepting the proposition that Mr. Cruz advances that an alien ceases to be arriving the moment one foot touches United States soil would render the phrase, whether or not at a designated port of arrival, completely inoperative.

[00:42:21] Speaker 04:
And the government's- Well, I get that, but we're not talking about

[00:42:24] Speaker 04:
And my recollection is, sorry, I think, is that MDCV?

[00:42:28] Speaker 04:
I can't remember.

[00:42:29] Speaker 04:
They talked about arriving the same day.

[00:42:34] Speaker 04:
And this was way more than, this was three football fields.

[00:42:37] Speaker 04:
This was more than one foot in.

[00:42:38] Speaker 04:
So I just, I don't know where we have, where, where, where, where, when do we get a reasoned interpretation from the BIA on when do you stop arriving and you're arrived?

[00:42:53] Speaker 01:
So, Your Honor, I would point primarily to page 23 of the BIA's opinion, where the BIA notes that its reasoning is applicable to aliens apprehended near the border or just inside the border.

[00:43:04] Speaker 01:
And the government understands those are qualitative descriptions.

[00:43:08] Speaker 01:
But given the nature of the inquiry, there will not be a fixed bright line rule.

[00:43:12] Speaker 01:
But the government respectfully submits that this is not a case that implicates the outer limits of that definition.

[00:43:18] Speaker 01:
And as a practical matter, the MVP guiding principles generally provide

[00:43:23] Speaker 01:
that an alien is amenable to being returned under MPP if he or she is encountered within 96 hours of crossing the border.

[00:43:33] Speaker 03:
On the Chevron question, do you know of any cases where a government agency

[00:43:45] Speaker 03:
which has been litigating a question for several years and almost immediately before oral argument in a related case issues a Chevron interpretation and the court accepts that as controlling.

[00:44:03] Speaker 03:
I understand the argument that the BIA in general would have this, but we have to at least consider the context here, which is that BIA certainly knows what's going on here and that

[00:44:13] Speaker 03:
If it's the case that it can't, in the course of litigation, interpret Chevron, then I'd get a Chevron deference for an interpretation.

[00:44:27] Speaker 03:
Why should it be able to get it when it issues an adjudication right before an oral argument?

[00:44:33] Speaker 01:
So Your Honor, I'm not aware of any case that specifically mirrors the facts you just mentioned.

[00:44:38] Speaker 01:
The government's view is that the BIA's decision is entitled to chevron deference because it echoes DHS's interpretation of section 1225 B2C.

[00:44:48] Speaker 01:
And as for the specific timing of this decision, I'm not aware of any considerations that inform that.

[00:44:55] Speaker 01:
But again, just based on the structure of the INA and the fact that the attorney general's rulings on questions of law are controlling

[00:45:02] Speaker 01:
the government would submit that Chevron deference is appropriate here.

[00:45:10] Speaker 06:
What text is ambiguous?

[00:45:11] Speaker 06:
What text in this 1225 statute has sufficient ambiguity that you think it should trigger Chevron deference?

[00:45:21] Speaker 01:
So, Your Honor, the government's view is that if this court concludes that the term arriving is ambiguous, then Chevron deference should be triggered and the BIA's decision should be entitled to wait.

[00:45:32] Speaker 04:
Did you say 96 hours is the rule?

[00:45:36] Speaker 01:
It's the general principle, Your Honor.

[00:45:38] Speaker 04:
Where's the general principle?

[00:45:40] Speaker 01:
So that particular document is not part of the record below.

[00:45:44] Speaker 01:
I'm happy to proffer it to the court if the court believes it would be useful.

[00:45:48] Speaker 04:
Sorry, I don't know what it is.

[00:45:50] Speaker 04:
Is this a regulation, a policy statement, a handbook?

[00:45:54] Speaker 04:
Where does 96 hours come from?

[00:45:57] Speaker 01:
It's a guiding principles document.

[00:45:59] Speaker 01:
So it's an operational document that DHS has issued to its border patrol agents to effectuate the statutory authority in section 1225 B2C.

[00:46:08] Speaker 04:
You don't claim any deference to that though.

[00:46:11] Speaker 01:
No, Your Honor, that's merely for additional context and to dispel any concerns about hypotheticals of aliens who have been here far longer than 96 hours being returned under MPP.

[00:46:22] Speaker 01:
And again, I'm happy to submit that to the court if the court requests it.

[00:46:26] Speaker 01:
It was not submitted below largely because the arriving claim was not raised until oral argument before the district court.

[00:46:33] Speaker 06:
And I think maybe it is there.

[00:46:34] Speaker 06:
I think maybe page 11 of the appendix is

[00:46:40] Speaker 06:
U.S.

[00:46:40] Speaker 06:
Customs, Border Protection, Migrant Protection Protocols, Guiding Principles.

[00:46:45] Speaker 01:
Yes, Your Honor, I'm referring to a different document.

[00:46:48] Speaker 01:
Those outline the general principles applicable to MPP writ large.

[00:46:52] Speaker 01:
The document that I'm discussing hones in on this specific issue when Border Patrol agents consider aliens to be arriving on land for the purposes of Section 1225B2C.

[00:47:03] Speaker 04:
So the MPP protocols and guidance don't reference 96 hours?

[00:47:09] Speaker 01:
The specific writing principles that are currently in the appendix do not refer to that limit.

[00:47:14] Speaker 04:
Are there other MPP guidance or principles that do reference 96 hours?

[00:47:19] Speaker 01:
Aside from the document I just mentioned, I'm not aware of any other documents.

[00:47:26] Speaker 01:
I know that my time has long since elapsed, but I would like to briefly address the non-refoulement claim.

[00:47:32] Speaker 01:
So the district court correctly concluded that Section 1252A2B2 bars judicial review of this claim.

[00:47:40] Speaker 01:
And as an initial matter, Mr. Cruz does not address that holding in his opening brief.

[00:47:44] Speaker 01:
So it's the government's view that he's waived any arguments he might be able to advance on this issue.

[00:47:49] Speaker 01:
But in any event, the government submits that the district court's holding was substantively correct and consistent with this court's precedent.

[00:47:56] Speaker 01:
Section 1225 B2C provides that the secretary may return aliens provided that they are statutorily eligible and that no other provision of the INA constrains that authority in any way.

[00:48:10] Speaker 01:
In other words, Section 1225 B2C bears both hallmarks that this court attached substantial importance to in Zhu versus Gonzalez in considering the national interest waiver statute, there to the word

[00:48:23] Speaker 04:
Can I just back up and ask one more time?

[00:48:25] Speaker 04:
C talks about in the case of an alien described in subparagraph A. And then subparagraph A begins subject to paragraphs B and C. And just to be clear, so your definition, you don't read that subject to paragraphs B and C as someone who's described in B. You just mean it as someone who hasn't been treated under B, just to be clear, right?

[00:48:47] Speaker 04:
That's what you mean, subject to paragraphs B and C in 3A.

[00:48:51] Speaker 04:
2A, sorry.

[00:48:54] Speaker 01:
Right.

[00:48:57] Speaker 01:
So the government's view is that section 1225 B1 does not apply to Mr. Cruz because he was not placed in expedited removal proceedings.

[00:49:05] Speaker 04:
And so he's not subject.

[00:49:06] Speaker 04:
He's not covered by subject to paragraph B. Got it.

[00:49:09] Speaker 04:
It's a subject.

[00:49:10] Speaker 04:
Subject two is not a statutory reference.

[00:49:13] Speaker 04:
It's a reference to prosecutorial discretion judgment.

[00:49:20] Speaker 01:
In the case of Section 1225B2B2, yes, Your Honor.

[00:49:24] Speaker 01:
And again, the government referred back to matter of ERM and LRM for the proposition.

[00:49:29] Speaker 04:
Sorry, I interrupted you.

[00:49:30] Speaker 03:
Can you just tell me again the non-reviewability provision that you're talking about?

[00:49:37] Speaker 01:
Yes, Your Honor.

[00:49:38] Speaker 01:
Section 1252A2B2.

[00:49:39] Speaker 01:
1252.

[00:49:49] Speaker 03:
Okay, can I ask, you have a very, I think you have a very brief reference to another provision.

[00:49:57] Speaker 03:
We're talking about refoulement now, right?

[00:50:00] Speaker 01:
Yes, Your Honor, the district court's disposition of the non-refoulement claim.

[00:50:03] Speaker 03:
Right, so, and that's 1231, right?

[00:50:10] Speaker 03:
That would be relevant, is that right?

[00:50:13] Speaker 01:
The government's view is that section 1231 does not apply in this case because section 1231 concerns removal, which is a different context than contiguous territory return.

[00:50:26] Speaker 03:
So my question is, is that in your brief, you briefly mentioned 1231 H. Hold on.

[00:50:37] Speaker 03:
Yeah, H.

[00:50:39] Speaker 03:
which says, nothing in this section shall be construed to create any substantive or procedural right or benefit that's legally enforceable by any party against the United States.

[00:50:48] Speaker 03:
There's just a briefest mention of that.

[00:50:50] Speaker 03:
I think it's in your brief, somebody's brief.

[00:50:54] Speaker 03:
Why is this not the section that you would be relying on for non-reviewability?

[00:51:00] Speaker 03:
No cause of action, put it that way.

[00:51:02] Speaker 03:
Sorry.

[00:51:04] Speaker 01:
The government certainly has no objection to this court.

[00:51:06] Speaker 03:
I know, but there must be some reason I'm missing.

[00:51:08] Speaker 03:
I don't want to make a mistake here.

[00:51:10] Speaker 03:
What's the reason that this section isn't relevant?

[00:51:15] Speaker 01:
So, this largely just stems from the court's order of operations in June.

[00:51:20] Speaker 01:
In June, this court concluded that Section 1252 A2B2 barred judicial review, and then it had no need to consider whether, for example, the agency discretion by law exception to the APA applied.

[00:51:33] Speaker 01:
So, in the government's treatment of the issues in the order of operations in our brief,

[00:51:38] Speaker 01:
We similarly viewed Section 1252A2B2 as a threshold jurisdictional issue and then the lack of a cause of action as an alternative argument.

[00:51:49] Speaker 03:
All right.

[00:51:50] Speaker 03:
If you're wrong about the discretionary question and therefore the jurisdictional question, would this apply or not apply?

[00:52:00] Speaker 03:
Would H apply or not apply?

[00:52:02] Speaker 03:
The petitioner's argument is under

[00:52:07] Speaker 03:
this section, right, that they argue 1231 should apply.

[00:52:13] Speaker 03:
Yes, Your Honor.

[00:52:15] Speaker 03:
And then we have a statutory provision that's that very section that says nothing in this section shall be construed to create any right.

[00:52:25] Speaker 03:
Yes, Your Honor.

[00:52:27] Speaker 03:
I'm not trying to make your case for you.

[00:52:29] Speaker 03:
I have some feeling that I'm missing some reason that's not usual that the government buries its best argument in one sentence and then doesn't make it.

[00:52:36] Speaker 03:
So I just feel like I'm missing something here.

[00:52:40] Speaker 01:
So again, Your Honor, we have no objection to this court concluding that there is no cause of action here because the treaty obligations are not self-executing.

[00:52:48] Speaker 01:
There is no domestic statute that is applicable.

[00:52:51] Speaker 01:
Again, the reason the government ordered the issues the way it did in its brief is because we viewed the injunction that Mr. Cruz sought as clearly triggering Section 1252A2B2 because he asks this court to set aside the discretionary decision to return him to Mexico.

[00:53:07] Speaker 01:
And moreover, that is also the ground the district court below ruled

[00:53:10] Speaker 01:
And for those reasons, we led with our Section 1252A2B2 argument.

[00:53:15] Speaker 01:
But we would certainly have no objection to this court concluding that there is no cause of action or mechanism to challenge the implementation of an algorithm.

[00:53:24] Speaker 04:
Did you argue that in your brief?

[00:53:28] Speaker 01:
1231A?

[00:53:30] Speaker 01:
We did mention 1231A.

[00:53:32] Speaker 04:
You mentioned it.

[00:53:33] Speaker 04:
That's not the same thing as did you make an argument that there's no cause of action here?

[00:53:38] Speaker 01:
The government did assert that because the treaty obligations are not self-executing, that there is essentially no mechanism for Mr. Cruz to challenge the nondisdominant obligations at issue here.

[00:53:56] Speaker 04:
You just have this one line here.

[00:53:58] Speaker 04:
It's just this one line.

[00:54:00] Speaker 04:
And there's no argument.

[00:54:01] Speaker 04:
There's no citations.

[00:54:03] Speaker 04:
There's nothing here.

[00:54:04] Speaker 04:
Is that sufficient to raise an argument?

[00:54:10] Speaker 01:
So again, Your Honor, that line concerns Section 1231H, but the government believes the preceding paragraph also builds on that argument, and in any event, would also submit that the Section 1252A2B2 bar applies here as well.

[00:54:35] Speaker 01:
And finally, just to conclude, in the government's view, the Supreme Court's recent decision in DHS versus the regents of the University of California.

[00:54:44] Speaker 01:
decision that decision forecloses Mr. Cruz's equal protection claim because like the litigants there Mr. Cruz relies on a number of statements made by the president remote in time and unrelated to MPP and for that reason he has not made out a plausible equal protection claim and then finally I'm sorry I apologize I just wanted to hop back to the non we

[00:55:10] Speaker 04:
The guidance and principles issued by the Secretary of DHS were specific and explicit that protections under Convention Against Torture and non-refilement protections would continue to apply.

[00:55:26] Speaker 04:
Is that right?

[00:55:30] Speaker 01:
Yes, Your Honor.

[00:55:31] Speaker 01:
In promulgating MVP, DHS made clear that it would abide by all relevant non-refilement obligations.

[00:55:37] Speaker 04:
Does that create any right, then, if you don't?

[00:55:42] Speaker 01:
So, your honor, the only situation in which the government believes it would create such a right is if, for example, the claim was that the agency failed to abide by the prescribed non-referring procedures.

[00:55:54] Speaker 01:
But importantly, that is not the claim here.

[00:55:56] Speaker 01:
Mr. Cruz was afforded a non-referring interview after.

[00:56:00] Speaker 04:
Well, no, but long after he'd been returned and then brought back in.

[00:56:04] Speaker 04:
And even when he was finally given one, it's not clear that he was told he could have counsel.

[00:56:12] Speaker 04:
There is no immigration judge review.

[00:56:18] Speaker 01:
So, let me address both aspects you just mentioned as to why he was returned initially without receiving a non refoundment interview.

[00:56:25] Speaker 01:
That is because the agency made the choice that.

[00:56:28] Speaker 01:
In the context presented by contiguous territory return the onus is on the alien to articulate a fear of return and importantly section 1225.

[00:56:36] Speaker 01:
B1A1 also notes that similarly for the credible fear process to be triggered, an alien has to indicate an intention to apply for asylum or a fear of persecution.

[00:56:47] Speaker 04:
I know, but the Secretary was explicit that existing non-refoulement procedures and protections would be retained.

[00:56:56] Speaker 04:
He did not say that we would change those in a way.

[00:56:59] Speaker 04:
It's not ordinarily required that they, is it ordinarily required that they

[00:57:04] Speaker 04:
raise the issue first, or is that normally outside this context?

[00:57:08] Speaker 04:
Is that something that's asked by immigration officers or immigration judges, even?

[00:57:18] Speaker 01:
So I'm not sure I fully understand your question.

[00:57:21] Speaker 01:
Is it about the specifics?

[00:57:23] Speaker 04:
Sorry.

[00:57:23] Speaker 04:
So shifting the burden to the immigrant to spontaneously raise concerns about

[00:57:30] Speaker 04:
covered by non-refel mine concerns about torture or mistreatment in the place to which they're being returned.

[00:57:37] Speaker 04:
Is that the normal practice under 1229A procedures?

[00:57:45] Speaker 01:
So the only reason I'm hesitating to answer your question is credible fear interviews only occur in the course of expedited removal proceedings under Section 1225B1.

[00:57:55] Speaker 01:
After the alien expresses an intention to apply for asylum or a fear of persecution, then the immigration officer asks the alien discrete questions.

[00:58:04] Speaker 01:
But importantly, the context here is fundamentally different.

[00:58:08] Speaker 04:
Okay, so under 12, let me be clear, under 1231.

[00:58:11] Speaker 04:
Right?

[00:58:12] Speaker 04:
Restriction on removal to a country where an alien's life or freedom would be threatened.

[00:58:17] Speaker 04:
If you're applying that process, put aside MPP.

[00:58:21] Speaker 04:
If you're applying that process ordinarily, my understanding is that the burden is not on the individual alien to first raise that question without notice, without counsel.

[00:58:35] Speaker 04:
They just have to spontaneously raise that.

[00:58:38] Speaker 04:
Is that true?

[00:58:40] Speaker 01:
In the context of full removal proceedings.

[00:58:44] Speaker 01:
I believe that's correct.

[00:58:45] Speaker 01:
Your honor.

[00:58:46] Speaker 04:
Okay, so then, but again, Sorry, go ahead.

[00:58:49] Speaker 01:
Yeah, so just to reinforce the point I just mentioned, the context here is fundamentally different.

[00:58:54] Speaker 01:
And importantly, an alien can express if you're returning to Mexico at any point during the time that his removal application or removal proceedings are pending in the United States.

[00:59:06] Speaker 01:
So an alien can have multiple non-refoulement interviews.

[00:59:09] Speaker 01:
And indeed, some aliens have had multiple non-refoulement interviews.

[00:59:12] Speaker 04:
No, but I'm just going back to if the MPP protocol said we're going to continue to adhere to non-refoulement,

[00:59:19] Speaker 04:
obligations and practices, then changing this whole process, the burden of raising the issue, the level of proof by which they have to raise it, the lack of notice, that's all different, isn't it?

[00:59:36] Speaker 04:
That is a change.

[00:59:38] Speaker 01:
So it is a change, Your Honor, but the government, again, believes that the context here is different, that it's not a departure from previously existing policies that were applicable in an analogous context.

[00:59:49] Speaker 01:
So the considerations applicable to contiguous territory return of an alien to a country that he or she transited through, those considerations are fundamentally different than the considerations of returning an alien to the home country where they may

[01:00:03] Speaker 01:
persecution and the government's views the agency was entitled.

[01:00:06] Speaker 04:
Well then why did the guidance say we'll be treating them the same?

[01:00:11] Speaker 01:
So the MPP guiding principles simply discuss non-refoundment generally and the principles of non-refoundment and in the USCIS memo applicable to non-refoundment interviews USCIS is clear that the withholding of removal regulations are inapplicable because again these are not removal proceedings.

[01:00:34] Speaker 04:
But then how can it be, so is it your position that the Refugee Act and the convention allow return, if someone actually were, they didn't know to raise it, they just didn't know they could raise it, but they actually were in fear of being harmed in Mexico, your view is that you're not obliged to apply that for continuous territory return?

[01:01:04] Speaker 01:
So so so that's that that that view the government's view is not that it does not have to abide by non-refoulement obligations, but rather that nothing in section 1231 or either of the treaties you just mentioned prescribes any minimum procedures that the executive branch has to adopt.

[01:01:21] Speaker 01:
who comply with its non-fulfillment obligations.

[01:01:23] Speaker 01:
And accordingly, the executive branch was entitled to rely on a different context presented here to fashion different non-fulfillment procedures.

[01:01:31] Speaker 01:
And I would also refer this court to Section 1231B3A, which notes that it is for the attorney general

[01:01:38] Speaker 01:
to determine if an alien's life would be threatened based on a protected ground.

[01:01:42] Speaker 01:
So no part of section 1231 prescribes a minimum set of procedures that the executive branch has to follow.

[01:01:49] Speaker 01:
And so the governor's view is that the procedures here are fully adequate to satisfy all relevant obligations.

[01:01:55] Speaker 04:
This procedure would be adequate even in a full 1231 removal proceeding.

[01:02:03] Speaker 01:
But again, Your Honor, the government's view is that context is fundamentally different.

[01:02:07] Speaker 04:
You just told me all you're obligated to do under the Refugee Act and the convention, all you're obligated to do is what you've done here.

[01:02:17] Speaker 04:
Is that true or not?

[01:02:19] Speaker 01:
Yes, Your Honor, that's true.

[01:02:21] Speaker 04:
So you could do this exact same process in withholding a rule.

[01:02:23] Speaker 04:
You've just been extra generous so far.

[01:02:27] Speaker 01:
So the government's view is, again, taking into account the considerations unique to removal of an alien to a country where they may be facing persecution or torture and where they may have no other opportunity to raise a claim of fear.

[01:02:38] Speaker 01:
The procedures fashion are different.

[01:02:40] Speaker 01:
And I would also point this court to the Supreme Court's decision at Thurisigium

[01:02:45] Speaker 01:
where, in pertinent part, the Supreme Court discussed the abuses of the credible fear process, the fact that there's been almost a 2,000% increase in credible fear claims, which have in turn exacerbated the existing burdens on the immigration system.

[01:02:59] Speaker 01:
And so given those burden concerns, the government's view is the agency was entitled to rely on the specific context presented here to fashion non-refundment procedures.

[01:03:08] Speaker 04:
Is there someplace where the DHS explains

[01:03:12] Speaker 04:
this rationale that they must think there's a reduced risk of torture or mistreatment in a country to which you're returned rather than removed.

[01:03:23] Speaker 04:
Where is this explanation for change in policy?

[01:03:28] Speaker 04:
You just described it, it's a different country, but it's clear that another problem applies to third countries as well, so where have they explained why the risk is lower?

[01:03:40] Speaker 01:
So in the October 20th, 2019 assessment of the micro-protection protocols, DHS explained that based on its experience.

[01:03:49] Speaker 04:
Sorry, I didn't hear it.

[01:03:52] Speaker 04:
Which memo?

[01:03:53] Speaker 04:
Which date?

[01:03:55] Speaker 01:
Yeah, it's not a memo in the appendix.

[01:03:58] Speaker 01:
It's a publicly available assessment of MPP that the government relied on below.

[01:04:04] Speaker 01:
And again, I can also submit this document if the court believes it would be helpful

[01:04:08] Speaker 01:
But in that document, DHS explained its view that, based on the agency's experience in administering credible fear interviews, its view was that if it altered non-refundment procedures in a manner suggested by litigants like Mr. Cruz, the number of fear claims would become overwhelming and would lead to untenable burdens on the limited number of asylum officers there are.

[01:04:32] Speaker 01:
And again, based on the Supreme Court's decision at the rescission, that concern is not purely conjectural.

[01:04:38] Speaker 03:
Well, I don't understand this is burden that nothing in what you just said said that they were improper or not credible credible fear claims.

[01:04:48] Speaker 03:
Is the agency able to to establish a standard that rejects these claims simply because accepting them would be too burdensome.

[01:04:56] Speaker 03:
Is that consistent with this with the treaty in the statute.

[01:05:00] Speaker 01:
Oh, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no,

[01:05:26] Speaker 04:
the middle of the country in that sense, is that we're just talking about having the interview here and deciding whether return versus detention is warranted.

[01:05:35] Speaker 04:
And so I don't know, maybe there are a lot that end up not to have merit.

[01:05:41] Speaker 04:
Are there a lot that also do have merit?

[01:05:47] Speaker 01:
So it would not be possible for me to quantify the number of claims that would have merit and the number of claims that would not have merit.

[01:05:53] Speaker 01:
The government's view is simply that the agency acted reasonably in relying on that concern and its experiences administering credible fear interviews to fashion the procedures that it did.

[01:06:03] Speaker 01:
And again, Mr. Cruz did receive an honor family interview after he came back to the United States for his July 30th hearing.

[01:06:10] Speaker 01:
And during that hearing, he was afforded an interpreter.

[01:06:13] Speaker 01:
The interview occurred in a non adversarial setting.

[01:06:16] Speaker 01:
And the results of the interview were subject to supervisory asylum officer review.

[01:06:21] Speaker 01:
I'm sorry.

[01:06:23] Speaker 04:
Just I don't mean to cut you off.

[01:06:24] Speaker 04:
I just say that the document you referenced that you said isn't before us from DHS, I would like to, if it's okay with my colleagues, I would like to have that submitted.

[01:06:34] Speaker 01:
Understood, Your Honor.

[01:06:35] Speaker 01:
I will submit that.

[01:06:37] Speaker 06:
Sorry, Judge Walker.

[01:06:40] Speaker 06:
version of what you've just described, I'm going to describe.

[01:06:46] Speaker 06:
And then I want you to tell me, if you would, why that's not actually what happened.

[01:06:56] Speaker 06:
There are tons of border crossings and asylum claims.

[01:07:02] Speaker 06:
And as you said, they're up 2000%, or at least they were.

[01:07:06] Speaker 06:
And that's an administrative burden.

[01:07:10] Speaker 06:
One way to avoid that administrative burden for asylum seekers is to just not ask them if they're seeking asylum.

[01:07:27] Speaker 06:
The guidance from the secretary says, a third country national should not be involuntarily returned to Mexico if the alien would more likely than not be persecuted

[01:07:40] Speaker 06:
on certain reasons, or would more likely than not be tortured.

[01:07:46] Speaker 06:
If you ask everybody that you're going to return to Mexico while they're waiting on their asylum claims, if you ask everybody, are you more likely than not to be persecuted?

[01:08:00] Speaker 06:
And are you more likely than not to be tortured?

[01:08:04] Speaker 06:
You're going to get more yeses than you would if you just don't ask the question.

[01:08:10] Speaker 06:
Because there will be some number of people who just don't know that they're supposed to tell you they're afraid that returning to Mexico will lead to either their persecution or their torture.

[01:08:22] Speaker 06:
And that's a good thing, you say, from DHS's perspective, because it's less of a burden on DHS if we just bury our head in the sand here.

[01:08:34] Speaker 06:
Is that the reason?

[01:08:36] Speaker 06:
Is that really the reason that DHS has decided not to ask people that are returning to Mexico if they're more likely than not to be persecuted or tortured?

[01:08:46] Speaker 06:
Or is there a different reason?

[01:08:48] Speaker 01:
So the missing component of your question, Judge Walker, that I would just point to is that returning to the credible fear process for a second in third city in the Supreme Court, that not only was there a massive increase in the number of credible fear claims, but many of them turned out to be completely meritless and were abandoned.

[01:09:06] Speaker 01:
And so the governor would just point to that and state that based on that experience with a number of credible fear claims that turned out to ultimately be devoid of any merit, DHS fashioned different procedures in this context and was entitled to do so.

[01:09:20] Speaker 06:
And so DHS made a policy decision exercising their discretion that in order to avoid the burden of a lot of frivolous claims, they would adopt a policy that is guaranteed

[01:09:37] Speaker 06:
to not catch some number of meritorious claims.

[01:09:46] Speaker 01:
So the government would resist that characterization simply because a number of aliens have articulated a fear of returning to Mexico, like Mr. Cruz.

[01:09:55] Speaker 01:
And again, Section 1225B1A1, even in the credible fear context, provides that a credible fear interview doesn't occur until an alien first expresses an intention to apply for asylum or a fear of persecution.

[01:10:08] Speaker 01:
And so in the government's view, this situation is not meaningfully different from that statutory command.

[01:10:16] Speaker 04:
It's more likely than not different than credible fear.

[01:10:24] Speaker 01:
The more likely than not standard is what is ultimately used to determine whether an alien has credible fear.

[01:10:31] Speaker 01:
Yes, your honor.

[01:10:33] Speaker 04:
But did under and I'm sorry, I wasn't clear and expedited removal.

[01:10:38] Speaker 04:
to get to an asylum hearing, do they have to show more likely than not?

[01:10:45] Speaker 04:
Or just to get to the hearing, do they just have to assert a credible fear?

[01:10:50] Speaker 04:
That's a credible fear more likely than not, or is it plausible, substantial?

[01:10:56] Speaker 01:
It's a reasonable probability.

[01:10:58] Speaker 01:
That's my understanding.

[01:11:00] Speaker 01:
That's the burden at the credible fear stage.

[01:11:03] Speaker 04:
So for expedited removal,

[01:11:06] Speaker 04:
If your prosecutorial discretion had left him there, he would have to just show a reasonable probability.

[01:11:12] Speaker 04:
But because you processed him under 1229A and subject him to return to Mexico, he has to show more likely than not.

[01:11:22] Speaker 04:
Is that right?

[01:11:24] Speaker 01:
Yes, Your Honor.

[01:11:26] Speaker 01:
And again, another important difference between this case and credible fear claims I would point to is the fact that aliens do not receive more than one credible fear interview, whereas aliens can and do in fact receive more than one non-reformal interview because they can articulate a fear of returning to Mexico at any point while their removal proceedings are pending of the United States.

[01:11:50] Speaker 03:
And just to very briefly.

[01:11:53] Speaker 03:
It's too late to be very brief.

[01:11:54] Speaker 03:
I think we have your arguments, and to the extent we don't, we have them in the briefs.

[01:12:00] Speaker 03:
I'm going to let Mr. Sheldon have two minutes.

[01:12:03] Speaker 03:
And thank you very much for your argument.

[01:12:09] Speaker 02:
Thank you.

[01:12:10] Speaker 02:
Just briefly, I'd like to get to our last question.

[01:12:14] Speaker 02:
More likely than not, a completely different incredible fear.

[01:12:18] Speaker 03:
Mr. Sheldon, we're having trouble hearing you.

[01:12:20] Speaker 03:
Maybe you need to speak more directly into the microphone.

[01:12:23] Speaker 02:
Can you hear me now, Your Honor?

[01:12:24] Speaker 02:
Yeah.

[01:12:25] Speaker 02:
Okay.

[01:12:25] Speaker 02:
Thank you.

[01:12:26] Speaker 02:
So more likely than not, it's completely different than credible fear.

[01:12:30] Speaker 02:
Credible fear is set out in B1 in details, extremely low standard.

[01:12:34] Speaker 02:
More likely than not, you have to prove, you know, beyond whatever, you know, beyond more than 50% that you will be persecuted.

[01:12:41] Speaker 02:
It's extremely hard standard for someone to meet without evidence, without a lawyer, without any type of procedure.

[01:12:47] Speaker 02:
I mean, it's virtually designed, so there's no chance on earth that they're going to pass.

[01:12:51] Speaker 02:
The government claims they don't have money, that it's too much of a burden.

[01:12:54] Speaker 02:
I mean, CBP and ICE have a budget of $19 billion.

[01:12:59] Speaker 02:
The entire EOIR is $350 million.

[01:13:02] Speaker 02:
I mean, the cost of them doing hearings is negligible compared to their cost of, you know, detaining 60,000 people a year that could, you know, cost the same as sending them to college for a year.

[01:13:13] Speaker 02:
Again, back to Judge Millett, I mean, never before in history has there been a procedure where you have to ask

[01:13:20] Speaker 02:
You know, in the US, we have to ask the government and tell them you're afraid.

[01:13:24] Speaker 02:
I mean, this is a completely new standard.

[01:13:27] Speaker 02:
And, you know, we would analogize it to asking a detained person, a prisoner, to ask for water, you know, instead of being given water.

[01:13:35] Speaker 02:
You know, it's a completely new and a completely arbitrary and reasonable standard.

[01:13:43] Speaker 02:
Okay, so 1231, I mean, just read it quickly.

[01:13:46] Speaker 02:
I mean, it says the attorney general may not remove an alien to a country if the attorney general decides the alien's life or freedom would be threatened.

[01:13:52] Speaker 02:
I mean, it says may not, and it doesn't say any specific countries, it says any country.

[01:13:58] Speaker 03:
The Chevron deference, you know, I ask you, what do we do with this sort of no cause of action kind of language?

[01:14:07] Speaker 02:
Oh, your honor, I mean,

[01:14:08] Speaker 02:
OK, there's a presumption in favor of judicial review.

[01:14:12] Speaker 03:
This is not a question of review.

[01:14:13] Speaker 03:
It's not a jurisdiction.

[01:14:15] Speaker 03:
It's a question of the cause of action.

[01:14:17] Speaker 03:
What do I do with that language?

[01:14:20] Speaker 02:
Again, the government didn't bring it up previously.

[01:14:22] Speaker 02:
It's kind of a variation.

[01:14:23] Speaker 03:
The government does have a sentence, and I didn't think of it myself.

[01:14:26] Speaker 03:
I'm sure I would never have thought of it myself, because the statute's awfully complicated.

[01:14:30] Speaker 03:
But it is included in the government's argument.

[01:14:33] Speaker 03:
What, do you know anything about it?

[01:14:35] Speaker 02:
If you don't, I understand it's because you... Yeah, I don't know, but it just, I mean, clearly the constitution, the statutes, all that takes great precedence over one little line where they say, you know, that you don't have an individual right.

[01:14:48] Speaker 02:
I mean, I think what they're referring to would be a litigation or a lawsuit where you're asking for damages.

[01:14:53] Speaker 02:
I mean, I don't think they're talking about the constitutional rights or the statutory rights of 65,000.

[01:14:59] Speaker 02:
people, including 16,000 children that have been sent to another country.

[01:15:02] Speaker 02:
I don't think that's what Congress meant at all.

[01:15:05] Speaker 04:
You didn't sue under 1231H, you sued under the APA, correct?

[01:15:09] Speaker 02:
That's exactly correct, Your Honor.

[01:15:11] Speaker 02:
We're not even talking about immigration.

[01:15:13] Speaker 02:
This case really has nothing to do with the immigration statutes, with removal.

[01:15:17] Speaker 02:
I mean, our client has not been removed.

[01:15:20] Speaker 02:
We're not even discussing that.

[01:15:21] Speaker 02:
We're talking about whether the government can grab people with armed police and throw them into

[01:15:25] Speaker 02:
into Mexico while they're awaiting the hearing.

[01:15:27] Speaker 04:
This would be analogous to- Is there any question in your experience as an immigration lawyer that the cat protections that are in 1231 may be raised on at least review of a final order of removal?

[01:15:41] Speaker 02:
Okay, first of all, it's withholding of removal claims.

[01:15:44] Speaker 02:
A cat would be a separate provision, but no.

[01:15:48] Speaker 02:
I mean, absolutely, 100%.

[01:15:49] Speaker 02:
This case could never be reviewed on a

[01:15:52] Speaker 02:
on a question of removal in the Court of Appeals for the removal case has nothing to do with the removal case.

[01:15:59] Speaker 02:
I mean, if I even brought it up, it would be utterly irrelevant.

[01:16:01] Speaker 02:
I mean, the only question they're going to look at is his removal.

[01:16:05] Speaker 02:
Did he get a fair procedure in his removal case?

[01:16:07] Speaker 02:
This has nothing to do with it.

[01:16:08] Speaker 02:
I mean, except for the fact, of course, that maybe we could argue that only 22 cases have apparently been approved out of 11,000 cases that have been decided in the MPP context because people don't have lawyers.

[01:16:22] Speaker 02:
You know, they don't have any type of, you know, they don't even know they have hearings.

[01:16:27] Speaker 06:
Mr. Sheldon, who grabbed him?

[01:16:33] Speaker 02:
He turned himself in.

[01:16:33] Speaker 06:
That's what I thought.

[01:16:36] Speaker 06:
That's what I thought.

[01:16:37] Speaker 06:
But you said a moment ago he was grabbed by armed people.

[01:16:40] Speaker 02:
Well, I mean, grabbed and thrown out of the country.

[01:16:42] Speaker 02:
I mean, he was he was taken.

[01:16:43] Speaker 02:
He was woken up one morning.

[01:16:45] Speaker 02:
He thought he was going to be, you know, he thought he was going to be placed in proceedings in the States as everybody else has for the last

[01:16:51] Speaker 02:
you know, forever.

[01:16:52] Speaker 02:
And then he was, he was just grabbed and put handcuffs on and thrown into Mexico without, you know, literally without any, you know, he says in his statement, he says, he says, this wasn't a question, it was an order sent out of the country.

[01:17:06] Speaker 06:
What do we do with the case, Omar v. McHugh, the government briefed it pretty extensively, and I don't think you mentioned it in your reply.

[01:17:13] Speaker 06:
It says that it's a DC Circuit case that says when it comes to the question of whether or not

[01:17:19] Speaker 06:
a foreign country is going to torture somebody we're sending there, judges don't decide that.

[01:17:26] Speaker 06:
That's a decision completely in the executive.

[01:17:30] Speaker 02:
Right, Your Honor.

[01:17:31] Speaker 02:
That's completely, again, a lot of government smoke here, trying to distract the court.

[01:17:35] Speaker 06:
I'm not asking about the government's argument.

[01:17:37] Speaker 06:
I'm asking about the DC Circuit finding precedent, Omar being the cue.

[01:17:41] Speaker 02:
Those cases are about extradition.

[01:17:43] Speaker 02:
They have nothing to do with this case.

[01:17:45] Speaker 02:
I mean, when you have an extradition treaty with another country,

[01:17:48] Speaker 02:
You know, that supersedes anything else.

[01:17:49] Speaker 02:
I mean, if the United States signs a treaty with England and we're returning a criminal, okay, then they can't start bringing up what's gonna happen in England.

[01:17:56] Speaker 02:
That's not what we're talking about here, Your Honor.

[01:17:58] Speaker 02:
There's no treaty.

[01:17:58] Speaker 02:
I mean, this is asylum.

[01:18:00] Speaker 02:
It's a completely different law.

[01:18:02] Speaker 06:
It's smoking.

[01:18:03] Speaker 06:
You're seeking prospective relief.

[01:18:05] Speaker 06:
And when it comes to the refoundment question, let me rephrase.

[01:18:12] Speaker 06:
Assume that I think at this point,

[01:18:16] Speaker 06:
Mr. Cruz has received all of the refoulement process he's entitled to, and that his refoulement claim has been adjudicated by Homeland Security in an appropriate manner.

[01:18:30] Speaker 06:
I know you don't think that, but assume I think that.

[01:18:33] Speaker 06:
You're seeking prospective relief.

[01:18:36] Speaker 06:
Even if I were to agree with you that he should have gotten the interview earlier, what do I do with that?

[01:18:41] Speaker 06:
What can the court do with that?

[01:18:46] Speaker 02:
OK, I mean, there's four different ways or something we can win in this case.

[01:18:50] Speaker 02:
I mean, the statutory argument on the MPP, the statutory argument on the alien, you know, whether he's in the United States.

[01:18:56] Speaker 02:
I mean, that's just one of our arguments is the international withholding of removal, Your Honor.

[01:19:02] Speaker 06:
OK, I'm good.

[01:19:03] Speaker 06:
I'm good.

[01:19:04] Speaker 03:
I mean, obviously, we think that he's... Mr. Sheldon, if you could just wrap it up in a sentence or two, that would be helpful.

[01:19:09] Speaker 02:
Oh my gosh, I'd like to just talk quickly about the Chevron difference.

[01:19:12] Speaker 02:
I mean, I just want to mention there is an agency regulation

[01:19:15] Speaker 02:
And if the court's going to give Chevron a difference to anything, it should be this regulation that's existed since the statute was put in.

[01:19:24] Speaker 02:
And it interprets the contiguous territory provision.

[01:19:27] Speaker 02:
It limits it to arrivals with supportive entry.

[01:19:30] Speaker 02:
So that should actually take precedence over a matter of MDC.

[01:19:34] Speaker 03:
Just cite that regulation for us.

[01:19:38] Speaker 02:
It's ACFR.

[01:19:47] Speaker 02:
It's the, you know, it's deregulation interpreting the... Is this... I'm sorry.

[01:19:59] Speaker 02:
Yeah, it's 8 CFR 12 35.3 D. Thank you.

[01:20:08] Speaker 02:
And, you know, it clearly says that it's only supposed to be applied to

[01:20:12] Speaker 02:
aliens arriving at our land border port of entry.

[01:20:14] Speaker 02:
In other words, even if the government, when writing the regulations, didn't think it applied to people of the United States.

[01:20:20] Speaker 02:
Irreparable harm.

[01:20:21] Speaker 02:
I mean, oh, I do want to mention one thing.

[01:20:23] Speaker 02:
Gordon B. Holder from this court and also Mills v. District of Clement say, if your perspective violation of a constitutional right constitutes irreparable injury, we think this is a constitutional violation.

[01:20:33] Speaker 02:
So that would take care of the injury, the irreparable harm.

[01:20:37] Speaker 02:
But, you know, in addition, Mr. Cruz was sent to one of the most violent places on earth, an area controlled by the Juarez drug cartel, not the Mexican police.

[01:20:44] Speaker 02:
He's living in daily terror.

[01:20:45] Speaker 02:
He's afraid he could be sent back to Guatemala by the Mexican government.

[01:20:49] Speaker 02:
He's afraid that he could be killed by the same people that are after him from Guatemala.

[01:20:53] Speaker 02:
They could find him in Mexico.

[01:20:55] Speaker 02:
I mean, you know, to say that there's no irreparable harm, I mean, I would analogize this whatever to the 1939, the boat St.

[01:21:01] Speaker 02:
Louis arrived off the Florida coast and, you know, they sent it back.

[01:21:05] Speaker 02:
I mean, you know,

[01:21:06] Speaker 02:
He's also subject to an obviously badly malfunctioning asylum hearing system where 22 cases have been approved out of 11,208 that were ordered removed.

[01:21:15] Speaker 02:
I mean, clearly he has irreparable harm.

[01:21:18] Speaker 02:
The jurisdiction, I mean, you know, this case is because it's not about removal.

[01:21:22] Speaker 02:
It's not about immigration.

[01:21:23] Speaker 02:
It has nothing to do with discretion because, you know, there's that vitus and other cases, of course, that the authority is not discretionary.

[01:21:31] Speaker 02:
You know, the agency's authority is not discretionary.

[01:21:35] Speaker 02:
Just to wrap up, Your Honor, I just want to... A few blocks from the courthouse there's a monument to the Japanese Americans who are in World War II held... To the Japanese Americans who were detained in World War II held to be legal by the Supreme Court in Korematsu.

[01:21:48] Speaker 02:
The quotes from President Reagan, Senators, others apologizing saying this must never happen again.

[01:21:52] Speaker 02:
Yet today the government is violating the law and the Constitution to send women and children seeking asylum in our country into extreme danger.

[01:21:59] Speaker 02:
It may not be popular with this court, sure the government to follow the law.

[01:22:04] Speaker 02:
I have a few other questions.

[01:22:07] Speaker 02:
I have a few other things I'm going to just say, but I realize I'm out of time.

[01:22:10] Speaker 03:
All right.

[01:22:10] Speaker 03:
Thank you, Mr. Sheldon.

[01:22:12] Speaker 03:
Thank you very much.

[01:22:13] Speaker 03:
Thanks to both council.

[01:22:14] Speaker 03:
We'll take the matter under submission.

[01:22:16] Speaker 02:
Thank you very much.