[00:00:00] Speaker 02: Case number 19 of 5298, Baker Road, New York at L, v. Cadd, F-4, Acting Secretary of the Department of Homeland Security and his official capacity at L Appellates. [00:00:13] Speaker 02: Mr. Stewart for the Appellates. [00:00:15] Speaker 02: Mr. Balakrishna for the Appellees. [00:01:17] Speaker 01: May it please the Court, I'm Scott Stewart on behalf of the United States. [00:01:20] Speaker 01: If I may, Judge Millett, I'd like to try to save three minutes for rebuttal. [00:01:24] Speaker 01: In this case, the District Court universally enjoined the acting Secretary of Homeland Security's discretionary designation of certain unlawfully present aliens for expedited removal. [00:01:35] Speaker 01: The District Court did so for lack of notice and comment procedures and on the grounds that the designation was arbitrary and capricious in violation of the APA. [00:01:44] Speaker 01: This Court should reverse the District Court's preliminary injunction. [00:01:47] Speaker 01: The district court, most importantly, lacked jurisdiction over the case or to review the designation. [00:01:54] Speaker 01: The district court erred in holding that the acting secretary was required to use notice and comment procedures, and the district court also erred in holding that the designation was arbitrary and capricious. [00:02:04] Speaker 04: Let me, if I can, I just want to get a handle on one piece of your case. [00:02:09] Speaker 04: I appreciate if you'd focus on what I'm asking you and not what you think I might. [00:02:13] Speaker 04: I understand all of your arguments with respect to the discretion in the hands of the government and reviewability. [00:02:28] Speaker 04: I understand all what you're trying to say. [00:02:31] Speaker 04: What I'd like for you to explain to me is what kinds of cases do you imagine [00:02:42] Speaker 04: can be pursued under E. You know what I mean by E. Yes, Your Honor. [00:02:49] Speaker 04: Because there clearly are causes of action that can be pursued. [00:02:53] Speaker 04: I'd rather not go off into a prior case law with respect to whether or not [00:02:59] Speaker 04: That was a third-party standing case. [00:03:01] Speaker 04: I don't want to be sidetracked there right now in understanding the theory. [00:03:04] Speaker 04: I want to know, assuming in your view someone's properly there, what kind of cases, because there are two kinds of actions, [00:03:12] Speaker 04: a claim that of unconstitutionality and a claim that the regulation policy, written policy done online, written procedure, et cetera, violates, is otherwise a violation of law. [00:03:28] Speaker 04: Tell me the kinds of actions you have in mind. [00:03:31] Speaker 01: Sure, Your Honor. [00:03:32] Speaker 01: An example would be [00:03:35] Speaker 01: say that under the expedited removal statute, there's a right to consult. [00:03:41] Speaker 01: And if the agency adopts a procedure, a written procedure that says here's how much time there is to consult, we're changing that from... I'm sorry, I don't mean to interrupt your answer. [00:03:52] Speaker 05: I'm just not sure what you mean by right to consult for the individual, for the consultant attorney or for you. [00:03:59] Speaker 05: I'm sorry, could you just clarify just so I can understand your answer? [00:04:03] Speaker 01: I'm sorry. [00:04:03] Speaker 01: Sure, Your Honor. [00:04:06] Speaker 01: The, in section 1225B, this is several sub-provisions down, I believe it's section 1225B1B. [00:04:31] Speaker 05: I just didn't understand. [00:04:33] Speaker 05: You don't have a quick layperson explanation. [00:04:36] Speaker 01: B1 what? [00:04:37] Speaker 01: B1 Romanet 4, captioned information about interviews. [00:04:47] Speaker 05: Little in Romanet 4, okay. [00:04:49] Speaker 01: Got it. [00:04:49] Speaker 01: And so, for example, the Attorney General shall provide information and an alien [00:04:58] Speaker 01: may consult with a person or person of the alien's choosing. [00:05:02] Speaker 01: Say that the agency has guidance on how that's implemented, the procedures used to implement that consultation right or potentially that information right and the agency issues a new written guidance that says here's how we're going to implement it going forward. [00:05:20] Speaker 01: That would be an example of something that could potentially be, that could be challengeable with an appropriate plaintiff [00:05:29] Speaker 05: Your Honor, another example, this came up in a... While they're in the actual, first of all, once you're asserting asylum, you're at least getting a little more process than the ordinary expedited removal process. [00:05:48] Speaker 05: So during, you're saying the individual who's in the asylum process can bring it or anybody could bring it? [00:05:55] Speaker 01: I think somebody who, [00:05:58] Speaker 01: gets an expedited removal order and is deemed not to have a credible fear and says, hey, this implementation, this procedure implementing the consultation right is not consistent with the statute. [00:06:17] Speaker 01: And somebody were to bring that claim. [00:06:19] Speaker 01: That could be an example. [00:06:22] Speaker 01: Any others? [00:06:24] Speaker 01: I believe in another example that has arisen. [00:06:30] Speaker 01: is say there's a regulation, a written regulation that implements, adds a bar to asylum eligibility that operates in the credible fear process. [00:06:49] Speaker 01: So somebody [00:06:50] Speaker 01: is in the credible fear process and says, and is barred from pursuing, from making, succeeding on a credible fear claim because of a new asylum eligibility bar, that could be the kind of thing that with an appropriate plaintiff could be challengeable, Your Honor. [00:07:12] Speaker 01: So those are two examples. [00:07:14] Speaker 01: I'm trying to be careful and precise, Judge Edwards, because one of our points is, as you know from our briefing and the points we've made, is that [00:07:26] Speaker 01: From the ALA case, from this statute, it's very important under this provision to Congress that the right kind of plaintiff be before the court, somebody who actually had these removal procedures applied to them, somebody who has an order. [00:07:44] Speaker 07: The ALA decision... So can I ask, why does the government not press their standing claims on appeal? [00:07:53] Speaker 01: I think we did raise a number of issues on appeal, Your Honor. [00:08:07] Speaker 06: There are a lot. [00:08:08] Speaker 01: As you know, there are more than you might, with the sub-issues, more than perhaps the average appeal. [00:08:13] Speaker 01: So we did do some narrowing. [00:08:15] Speaker 07: Let me ask you, I mean, we of course have an obligation to ensure that we have standing, whether you press it or not. [00:08:20] Speaker 07: And so I have a question about redressability. [00:08:24] Speaker 07: So assume that the plaintiffs have been injured, that their injury is imminent, even if we assume that. [00:08:29] Speaker 07: I mean, if the statute here prevents us from giving injunctive relief, isn't there a problem with redressability? [00:08:37] Speaker 07: on standing for these plaintiffs who haven't actually been subject to the expedited removal procedures. [00:08:43] Speaker 07: Can we actually give them the relief that they are seeking? [00:08:47] Speaker 07: And if we can't, then don't they lack standing [00:08:51] Speaker 01: I think that is one problem with the member plaintiffs here, Your Honor. [00:08:56] Speaker 01: I mean, I think it's a number. [00:08:57] Speaker 01: You have a redressability problem because, in part because there's no injury yet, that you don't have a plaintiff. [00:09:02] Speaker 07: Well, I'm just saying, even if we assumed injury and imminence, I'm not saying we would assume that based under Article III, but I'm just asking you to address the redressability point. [00:09:14] Speaker 01: I do think, I think I agree with you, Judge Rao, that I can't see, [00:09:24] Speaker 01: Given the nature of the statute, what it really, the limited relief that's available is a determination as to a particular alien and given that limited relief, it really makes sense and it provides a redressable situation only in the context of an individual who's affected. [00:09:40] Speaker 04: So I... It depends on how you frame the cause of action. [00:09:43] Speaker 04: If you take it their way, that the injuries under E that they're challenging, [00:09:48] Speaker 04: is a failure to use. [00:09:50] Speaker 04: They're saying otherwise in violation of the law, in their view, is a failure to use, and it's incumbent rulemaking. [00:09:56] Speaker 04: You can certainly have representational standing with a group. [00:10:00] Speaker 04: It's like reinforcements. [00:10:02] Speaker 04: I mean, it's just old news. [00:10:04] Speaker 04: And so the argument, the ALI case [00:10:07] Speaker 04: double take account of Lexmark and what Lexmark added to the landscape and the elimination of all these prudential standing and statutory standards. [00:10:18] Speaker 04: It really changed it. [00:10:19] Speaker 04: And so it's there, and I understand it, but it certainly couldn't vitiate the notion of representational standing, assuming that you meet the usual rules. [00:10:28] Speaker 04: You're a member, the members line up with the group, and there's no need for the member to pursue. [00:10:34] Speaker 04: On their theory, their theory is [00:10:37] Speaker 04: The violation of E is a fail, and that's all I understand, and they can say whatever they want and make it up here. [00:10:44] Speaker 04: That's all they're claiming is there's a violation of the APA's requirement of notice and comment rulemaking. [00:10:52] Speaker 04: And so standing's easily satisfied if that's your theory. [00:10:56] Speaker 04: Some of these other things that you have in mind, there would be a question. [00:10:59] Speaker 01: Well, here's what I take your point about, certainly the change in certain terminology in the standing context since the ALA case, Your Honor. [00:11:08] Speaker 01: But what I would emphasize is that the court's decision in that case really turned on an interpretation of this statute. [00:11:15] Speaker 01: And what the opinion said around 1359, 1360, it basically said, look, [00:11:21] Speaker 01: This seems to be, this is going after something more than sort of bare organizational harm. [00:11:26] Speaker 01: What Congress wanted here was not just an organization claiming injury on behalf of them. [00:11:32] Speaker 04: Give me your case and all the other language that you have and are trying to rely on. [00:11:38] Speaker 04: I don't know why you'd be pursuing this claim and relying on a case that was clearly focused on third party standing, which even Lexmark [00:11:50] Speaker 04: If that's all you have is third party standing, the plaintiff is relying on the rights of others, and that's it. [00:11:57] Speaker 04: There's no doubt you can't pursue that. [00:11:59] Speaker 04: That's not this case. [00:12:01] Speaker 04: This case is about a membership group with members, and they're pressing a claim that affects all the members. [00:12:08] Speaker 04: Our prior case does not change that and could not change that. [00:12:13] Speaker 01: I respectfully disagree with that, Your Honor. [00:12:15] Speaker 04: I hear you, but I don't know how you could possibly change it. [00:12:18] Speaker 01: Sure, Your Honor. [00:12:19] Speaker 01: Hopefully, can I hit a few points of the statute and hopefully I can bring the point across. [00:12:25] Speaker 01: What the court's decision there was it looked at the context of the statute and says, look, this statute bars Rule 23 class actions. [00:12:32] Speaker 01: It bars sweeping class-wide injunctive relief. [00:12:34] Speaker 01: It's really focused on application to a particular alien. [00:12:38] Speaker 01: And we have to reject, given what this statute signals, the proposition that Congress allowed organizations to bring suits on behalf of potentially aliens anywhere in the world. [00:12:48] Speaker 01: That's at 1359, and what the court honed in on there was that, look, says under an organizational standing approach, or organizational plaintiff approach in this context, you have a situation where the particular situation of a plaintiff doesn't matter. [00:13:03] Speaker 01: There's no confining influence of a plaintiff who's actually affected. [00:13:07] Speaker 01: So the court was saying, look, Congress in this very carefully drawn limiting statute really [00:13:15] Speaker 04: required more than just the ordinary organizational or Article 3 standing principles. [00:13:28] Speaker 04: It doesn't limit it to individuals. [00:13:30] Speaker 04: It's challenges to the system where they can come in, apart from all of the other places where they can come in, where the actions are not reviewable. [00:13:40] Speaker 04: There are a couple of places where they can come in, and whether it's an individual who comes in with one of the claims that you mentioned, [00:13:47] Speaker 04: consultation rights or a group of individuals who are all affected by a denial of consultation rights. [00:13:54] Speaker 04: I wouldn't buy for a second that if there are 20 aliens who are being denied consultation that they can't come in with an organization that they belong to and challenge under E. I thought your argument was that's not this case. [00:14:09] Speaker 04: They're arguing APA rights, and your argument was they can't raise the notice in common. [00:14:15] Speaker 04: I don't know why you're arguing this, making this other point and trying to make that first case much more than it can possibly be, because it could not possibly eliminate the possibility of representational standing. [00:14:28] Speaker 04: Or, say you have a rule on consultation, or with respect to asylum. [00:14:35] Speaker 04: And it affects known aliens, and they're the ones who are coming in with the association. [00:14:41] Speaker 04: They surely can come in under E. [00:14:44] Speaker 01: With respect, Your Honor, I think Congress did map out in this statute that it wanted more than the organizational standing requirement. [00:14:51] Speaker 01: It could be a case, look, somebody could satisfy, say, a Haven's Realty organization type injury, something else, but Congress wanted more than that. [00:14:59] Speaker 01: There is the heading that says challenge the stability of the system. [00:15:02] Speaker 01: E itself is captioned judicial review of orders under section 1225B1. [00:15:09] Speaker 01: I don't want to overstate the use of headings, Your Honor, but I would get to the approach, and this is something emphasized at page 1359 of ALA, where the court said, look, [00:15:20] Speaker 01: Congress envisioned that suits would be brought by and only by aliens who were agreed by the statute's implementation within the statutory time period. [00:15:30] Speaker 05: It's important language in doing that, but we're talking not about organizational standard, but associational standard here. [00:15:39] Speaker 05: And association is just a mechanism by which individuals. [00:15:44] Speaker 05: And the general understanding of aggrieved [00:15:48] Speaker 05: is that you can, you don't have to wait until you're actually arrested to bring something if your rights have been changed. [00:15:56] Speaker 05: The ordinary understanding of a grieve doesn't wait, require, if the government has said, right, you know, process these and put these where you thought you had, they're gone. [00:16:06] Speaker 05: You're now subject to this new regime, and by the way, it's super fast. [00:16:11] Speaker 05: That, in the ordinary course, would satisfy, [00:16:16] Speaker 05: Article 3 standing principles and would fit, I think, AILA's focus on whether someone who is agreed to subject to this regulation is the one that brings the suit. [00:16:29] Speaker 05: They just, you know, if it was a, there's a lot of other people, I guess, in these associations, but if you have an association of 10 people in Nebraska who are now subject to expedited removal, [00:16:45] Speaker 05: But they want to go through the association because they'd prefer not to list their own names and addresses for obvious reasons. [00:16:51] Speaker 05: That would surely fit both your reading and the ILA, wouldn't it? [00:16:57] Speaker 05: Because it's associational and it just happens to be we've grouped together. [00:17:00] Speaker 01: I don't think so, Your Honor. [00:17:02] Speaker 01: I think it wouldn't bother the individual members if they were, again, if they had a determination to bring a statute. [00:17:10] Speaker 05: But I think it really... Well, they do have, sorry, by determination you mean, [00:17:15] Speaker 05: They're already arrested them? [00:17:18] Speaker 01: An expedited removal order would be a determination. [00:17:21] Speaker 05: I think part of my confusion here might be, maybe it would help if you could just explain a little bit about how this works on the ground. [00:17:30] Speaker 05: I get you having it implemented, but surely the agency has an understanding. [00:17:33] Speaker 05: So you're now going to apply this expedited removal to individuals who are [00:17:44] Speaker 05: I'm assuming Nebraska's a hundred miles from the border of my geography. [00:17:47] Speaker 05: But pick wherever it is, somebody who's in the middle of the country. [00:17:51] Speaker 01: But somebody say in the 14 to two year window. [00:17:55] Speaker 05: So I'll give you under two years for now for this hypothetical. [00:17:59] Speaker 05: It's actually not a hypothetical. [00:18:00] Speaker 05: I just want to understand how it works. [00:18:02] Speaker 05: The government gets information that so-and-so is working somewhere and they did not come here lawfully. [00:18:12] Speaker 05: and they've only been here eight months. [00:18:19] Speaker 05: Do you issue an order in the mail or would agents sort of go and show up at this site and assuming they've got a sufficient description, I assume they'd be able to just detain them on the spot? [00:18:31] Speaker 01: I believe it would be, and I'm not certain of all this because we didn't quite [00:18:38] Speaker 01: delve into a particular plaintiff who experienced it. [00:18:41] Speaker 05: Well, but you've already, I mean, so you're already been doing this, the, oh, I'm gonna forget, is it 14 miles? [00:18:47] Speaker 01: Yeah, 14 days, 100 air miles is the main one. [00:18:50] Speaker 05: Okay, so you're already doing it there, so how's it working there? [00:18:52] Speaker 05: I assume you're not mailing an expedited order of removal to folks and then waiting for them to turn themselves in and that you're in fact arresting people, asking them for this evidence, and then if they don't meet the immigration officers, [00:19:08] Speaker 05: standards, if they're removed. [00:19:10] Speaker 05: Is that wrong? [00:19:11] Speaker 01: I think that's about right after the appropriate procedures, Your Honor. [00:19:14] Speaker 05: I mean, I think... There are a whole lot of procedures for... Let's assume they're not asserting credible fear, because that gets you into another process. [00:19:20] Speaker 05: So they're not asserting credible fear. [00:19:23] Speaker 01: Right, Your Honor. [00:19:24] Speaker 01: I mean, most of those... most of the affected individuals don't have suits aside from the limited habeas relief, because there's no... [00:19:36] Speaker 05: Do they even have time to, because the thing about E3 is it's a little unusual, to fit this regime of expedited removal which I think the whole point of it is that we're not mailing you something and then three months later you come into the office and it's good to, we find somebody, we detain them, we require the show and if they don't mean it, we get to move them right on out. [00:20:01] Speaker 05: But you're supposed to institute an action in the district court for the District of Columbia. [00:20:06] Speaker 05: And I'm not sure feasibly how that could happen once somebody is already in this proceeding. [00:20:17] Speaker 05: Has that ever happened even before this expansion? [00:20:21] Speaker 05: Has anyone who's actually been detained, grabbed off the street and didn't get to credible fear stage, has anyone ever been able to institute an action? [00:20:35] Speaker 01: There have been a few recent lawsuits under E3. [00:20:39] Speaker 01: I don't think there was really much for quite a while after ALA, Your Honor. [00:20:44] Speaker 01: In the last couple of years, there have been a few more. [00:20:48] Speaker 05: By an individual who has just been grabbed up, interviewed by the immigration officer, and put on the bus? [00:20:55] Speaker 05: But I could, maybe I'm misunderstanding the process. [00:20:57] Speaker 01: I think somebody who's, I guess I'll put it this way Your Honor, it's hard for me to know sitting here where they were apprehended. [00:21:04] Speaker 01: I think a number of them were just recently crossed the border and apprehended fairly promptly thereafter. [00:21:11] Speaker 05: And they had time before being removed to institute an action in this court? [00:21:17] Speaker 01: I believe a number of them in some recent D.C. [00:21:21] Speaker 01: District Court cases were able to file suit, Your Honor. [00:21:24] Speaker 01: I think a lot of them may have gone to the credible fear process and that sort of thing. [00:21:29] Speaker 05: Right, and that's a little bit longer, maybe not a whole lot longer, but that's, I guess, could be up to a week, up to seven days. [00:21:35] Speaker 05: I think that is the... One more time, but I'm not talking about those individuals. [00:21:39] Speaker 05: Imagine, so the reason I'm asking this is there's clearly a, Congress wanted to make sure there was [00:21:46] Speaker 05: You have enormous discretion. [00:21:49] Speaker 05: Secretary right now was AG, now secretary. [00:21:52] Speaker 05: Secretary, you have enormous discretion under this statute. [00:21:55] Speaker 05: But discretion is bounded by what we give you under this statute. [00:22:00] Speaker 05: Of course, it's bounded by the Constitution, because Congress can't give you rein to run outside the Constitution. [00:22:06] Speaker 05: And you're bounded by what the statute's limits are, to the extent there are any, and other limits of law. [00:22:13] Speaker 05: That's what E3 is trying to get at. [00:22:16] Speaker 05: I think we agree on that, that you can't violate other laws. [00:22:20] Speaker 05: There may not be that many, but you can't violate the Constitution. [00:22:26] Speaker 05: Someone can challenge an action of the Secretary implementing this expedited removal system on the grounds that it's unconstitutional. [00:22:36] Speaker 01: I think so, Your Honor. [00:22:37] Speaker 01: I do want to just emphasize that I think we would argue that there are a lot of limits on that. [00:22:43] Speaker 01: Where? [00:22:44] Speaker 01: In the section? [00:22:45] Speaker 05: On constitutional claims? [00:22:47] Speaker 01: Well, I'm referring, for example, to the time limit bar, Your Honor. [00:22:50] Speaker 05: Oh, yeah, no, I'm sorry. [00:22:51] Speaker 05: They're complying with everything, sure. [00:22:53] Speaker 05: Yeah. [00:22:53] Speaker 05: I mean, there are notice of appeal and that kind of stuff, so I've got that. [00:22:57] Speaker 01: I just want to be careful about it going back and forth. [00:22:59] Speaker 05: Yeah, I'm not assuming that there's no statutory limitation period on their constitutional claims. [00:23:07] Speaker 04: I mean, you're reading stuff into that section. [00:23:16] Speaker 04: It's a very limited offering to potential plaintiffs. [00:23:19] Speaker 04: It certainly doesn't limit it to individual claims. [00:23:22] Speaker 04: I understand what you're trying to do in the line on the precedent, but as Judge Moretta said, [00:23:30] Speaker 04: it dealt with an entirely different situation. [00:23:33] Speaker 04: And it says regulation, written policy directive, policy guidelines, written procedure, and you've already said, for example, change in consultation rights. [00:23:43] Speaker 04: That clearly can contemplate the possibility of a lawsuit that involves representational standing, where there are several people who are directly affected by this new regulation, written policy, written policy guideline, or written procedure. [00:23:58] Speaker 04: and they could show them the normal rules of representational standing. [00:24:02] Speaker 04: We are affected and we want to challenge that. [00:24:05] Speaker 04: There's nothing in the prior cases and there's nothing in our standing rules [00:24:11] Speaker 04: And there's nothing in this statutory provision that says, no, you can't sue because only one of you can come in at a time and only when a certain kind of determination has been made with respect to you. [00:24:23] Speaker 04: That's not what it says. [00:24:24] Speaker 01: With respect, Your Honor, two points. [00:24:26] Speaker 01: I think, first of all, the statute does refer to determinations and implementations. [00:24:33] Speaker 01: It doesn't say or implementations and I think a contextual reading is very critical here because it does again the bar on class actions the bar on classified injunctive relief are really getting to the point. [00:24:45] Speaker 01: that Congress wanted individual affected aliens to be the ones bringing suit. [00:24:52] Speaker 01: I'm not disputing the normal operation of... That's not what he said. [00:24:56] Speaker 07: Can you focus on that language? [00:24:58] Speaker 07: I mean, you were just paraphrasing, but if you look at E3A, it says judicial review of determinations under Section 1225B of this title and its implementation, right? [00:25:11] Speaker 07: Your argument is that you need both a determination in order to challenge the implementation. [00:25:17] Speaker 07: But what about the fact that determinations is in the plural and implementations is in the singular? [00:25:22] Speaker 07: Do you think that's a Scrivener's error by Congress? [00:25:26] Speaker 07: Because it's a singular, right? [00:25:27] Speaker 07: It suggests perhaps the antecedent is section 1225. [00:25:30] Speaker 07: I think it would be a little, I don't think I... How do you read, you know, those pronouns, I guess, to be consistent? [00:25:39] Speaker 01: Sure, Your Honor. [00:25:40] Speaker 01: I think it would be a little weird to use the word implementations. [00:25:46] Speaker 01: It's not as natural as determinations. [00:25:49] Speaker 01: I think what implementation is saying is that somebody with a determination can [00:25:56] Speaker 01: in the way specified in this provision also bring, get judicial review of the implementation of one of these written policy guidelines or directives. [00:26:06] Speaker 01: And I, so I think it's basically you get review of the implementation in the context of your own case and there's also relief available to your particular determination. [00:26:16] Speaker 07: And what else in the statute supports that reading? [00:26:19] Speaker 01: The, that it refers to both. [00:26:22] Speaker 07: That you need both. [00:26:23] Speaker 01: I think it's a few, I mean, I've noted, I don't want to overstate the heading, but the heading in E does refer to orders. [00:26:35] Speaker 01: There are the other provisions in E1. [00:26:41] Speaker 01: A, barring injunctive relief overall, unless there's something specified, E1B, no class actions, 1252F1, no class-wide injunctive relief. [00:26:52] Speaker 01: And there are all these very strong signals. [00:26:54] Speaker 05: What about 1252A2A4, which seems to be the exact parallel to 3A? [00:27:06] Speaker 05: Boy, I wish they would do these things better. [00:27:08] Speaker 05: 3A, rome at two. [00:27:10] Speaker 05: and that is except as it provided Subsection E, so this channels everything to Subsection E, procedures and policies adopted by the Attorney General or Secretary to implement this section, the provisions of this section. [00:27:24] Speaker 05: Implementation there really seems to be not orders, but procedures and policies adopted. [00:27:32] Speaker 05: And I assume that parallel is implement there that there's really and this actually is I think traditionally when Congress uses implement in this way right next to a statutory section, it's about when that is being, when they've adopted something you're challenging the procedure or policy itself. [00:27:53] Speaker 05: And so implement here, right, doesn't that parallel what's going on there and that's why it was singular it? [00:27:59] Speaker 01: I read that one a little bit differently, Your Honor. [00:28:01] Speaker 01: I mean, I think what A2A overall is signaling is that there's really very limited review of expedited removal, except as explicitly pointed out. [00:28:10] Speaker 01: As to ROMAT 4 in particular, one, I think, important distinction between what that provision mentions and what E3 mentions, Your Honor, is [00:28:20] Speaker 01: Romanet 4 refers to just procedures and policies unmodified. [00:28:24] Speaker 01: E3 emphasizes that what we're talking about is a written policy directive, written policy guideline, written procedure. [00:28:36] Speaker 01: As shown in the district court piece there, I think noted that it's not for a kind of like non-announced, non-written policy procedure. [00:28:46] Speaker 05: I get there's a difference between the categories. [00:28:48] Speaker 05: I hear you saying that. [00:28:50] Speaker 05: I'm just focusing on implement. [00:28:53] Speaker 05: And it's just, it's a little odd to think of you can institute a cause of action in the District of Columbia and you can challenge both the determination and [00:29:06] Speaker 05: under 1225 and its implementation and else everywhere we talk about implementation, it's used in these terms. [00:29:14] Speaker 05: I mean, two, one minute two gives us a sense of what we're talking about when we mean implementation of 1225, doesn't it? [00:29:21] Speaker 05: When it talks about not the order of removal but written policies, written directives, all the language that's there that it seems to me that, [00:29:33] Speaker 05: The understanding of its implementation of Section 1225 is actually reinforced very much by what we're talking about, how it's implemented. [00:29:43] Speaker 01: I think what I'd again come back to, Your Honor, is I do think Ayla properly addressed this when the court said, when the court emphasized [00:29:54] Speaker 01: Look, implementation involves application to an affected person. [00:30:00] Speaker 01: That's what this statute is aimed at, is actually aliens who actually have the procedures applied to them. [00:30:07] Speaker 01: That exerts a limiting confining influence on the lawsuit. [00:30:10] Speaker 05: The difficulty with that too is your reliance on ALA is you seem not to be relying on when ALA said that the 60-day clock starts running from publication, not from, [00:30:23] Speaker 05: determination or application to an individual. [00:30:26] Speaker 05: So that part of AILA you don't want us to follow? [00:30:28] Speaker 01: I don't know from AILA, Your Honor, that the court was really presented with the square of what is first implementation. [00:30:36] Speaker 05: Well, it wasn't presented with associational standing either, but that doesn't seem to... I think it was, Your Honor. [00:30:43] Speaker 05: So you think that was error in AILA to say that the clock started running on when it was [00:30:51] Speaker 05: I don't mean necessarily formally promulgated by the government in whatever form they release it. [00:30:58] Speaker 01: I'm not sure on that, Your Honor. [00:31:00] Speaker 01: I mean, I think it just wasn't... Either you agree with it or you don't. [00:31:05] Speaker 05: Did the government argue that that was what started the clock there in AILA? [00:31:10] Speaker 01: I'm not sure, Your Honor. [00:31:11] Speaker 01: Again, I think it was a new system. [00:31:14] Speaker 01: I don't know. [00:31:16] Speaker 01: The court did have some individual plaintiffs who timely filed there under [00:31:21] Speaker 05: under that definition. [00:31:22] Speaker 05: I mean, that's a problem. [00:31:23] Speaker 05: The court there adopted the definition of timeliness applied by the district court, which means that we adopted some other aspects of the district court decision without further elaboration as our own opinion, which included this timeliness, which makes it quite a holding, in my view. [00:31:38] Speaker 01: But I think, Your Honor, I mean, I think, and this gets to one of Your Honor's earlier points, I believe that the two plaintiffs whose claims made it up to the court, I believe that they were both removed. [00:31:48] Speaker 01: So I think it was [00:31:51] Speaker 01: pretty fair to say that they had the procedures applied to them. [00:31:56] Speaker 05: My only point is there are whole issues of timeliness which makes it a little bit hard to brush this into dicta because timeliness very much cannot be determined without knowing when the clock starts running. [00:32:07] Speaker 05: And the notion there was that the clock started running when the rule came out which would mean we would then have to have a theory of the statutory provision that would allow the government [00:32:21] Speaker 05: that would never allow challenges as long as they don't take individualized actions for 60 days after they announce it. [00:32:29] Speaker 01: Again, I'm not sure. [00:32:30] Speaker 01: I don't think we have that situation here, Your Honor. [00:32:33] Speaker 05: I mean, I think... We may not here. [00:32:33] Speaker 05: I'm asking you about your reliance on AI, LI, and timing. [00:32:36] Speaker 05: Well, I think... How this statutory scheme is meant to work. [00:32:39] Speaker 01: Again, it's hard to... I'm not exactly sure how it came in Iowa, Your Honor, but imagine this case where... Don't we need to know? [00:32:46] Speaker 05: I'm sorry. [00:32:47] Speaker 05: Don't we need to know that? [00:32:51] Speaker 01: As I read ALA, Your Honor, it seems to me to be saying that people had the statute implemented. [00:32:58] Speaker 01: There were individuals who brought suit who had the statute implemented against them within 60 days of the effective date of whenever the actions were. [00:33:07] Speaker 01: So it seems that whether you count implementation from that day or from somewhere a little later within the following 60 days, [00:33:15] Speaker 01: I'm just not sure that the issue would have been presented, Your Honor. [00:33:18] Speaker 05: So you think that was wrong then when they said it starts running. [00:33:22] Speaker 05: This is again the ordinary rule of implementation would not be of a rule or directive. [00:33:31] Speaker 05: I would think the time ordinarily starts when it's put out there and people's rights are altered even if they haven't yet individually prosecuted somebody. [00:33:45] Speaker 04: Can we move on? [00:33:47] Speaker 04: This is in your own theory, I assume. [00:33:50] Speaker 04: Does your case rise and fall on whether or not we buy your theory about ALA and that third party standing? [00:33:56] Speaker 04: I thought you were relying heavily on, I'm utterly perplexed by this argument, 1252. [00:34:04] Speaker 04: A to A, and B, and the claim that otherwise in violation of the law does not include a failure to use notice and comment rulemaking in this context. [00:34:20] Speaker 04: And we've spent all this time on E, but I thought those were your principal arguments, but I don't want to re-characterize your case. [00:34:28] Speaker 01: I think that's the next group of arguments, Your Honor, after the E3 no-jurisdiction argument. [00:34:32] Speaker 01: It is fair. [00:34:34] Speaker 04: We have a number of arguments on that point, but... Well, the A to A is a no-jurisdiction argument, too, no? [00:34:41] Speaker 04: Were you making a no-jurisdiction argument there? [00:34:45] Speaker 01: We are making a no-jurisdiction argument, Your Honor, but there's... We started with the... There's no jurisdiction... Yeah, I'd like to move away from that now. [00:34:52] Speaker 04: Okay, Your Honor. [00:34:53] Speaker 04: We've killed it. [00:34:55] Speaker 04: I'd like to hear what your arguments are on these other two points. [00:35:01] Speaker 04: Your opposition, which I'll ask them, doesn't even refer, at least in the summary of the argument, A to A. We've got a lot of ways that this is allegedly not reviewable on A to B. And then your claim in some case law to back it that there's no legal requirement to use notice and comment rulemaking in a case like this. [00:35:26] Speaker 01: Sure, Your Honor. [00:35:27] Speaker 01: I'll try to hit those points. [00:35:30] Speaker 01: as concisely as I can. [00:35:31] Speaker 01: So our next jurisdictional argument is under Section 1252A2B2, and that's the provision that authorizes the Secretary to make, to designate folks within a, within a two-year, two-year in the country group for expedited removal [00:35:54] Speaker 01: The key point is the textual point that it gives the Secretary the authority to make that designation in the Secretary's sole and unreviewable discretion, and that designation may be modified at any time. [00:36:08] Speaker 01: And our point here on our fundamental point, and this is something emphasized in a number of these cases we've cited and then I think you alluded to, is that it's a mistake to [00:36:19] Speaker 01: look at this provision as protecting only the bare ultimate designation itself, just the number that the agency, the agency head comes to. [00:36:29] Speaker 01: It's, as Borden recognizes out of the 11th Circuit, if a court can dictate which arguments the court [00:36:35] Speaker 01: needs to entertain, how the court weighs the evidence, how the court goes about reaching the designation, basically the process, then there's a risk that it creates a situation where the designation, the decision is not in the agency head's discretion, but it's subject to really extensive review and really eliminates the ability, the conferral of sole and unreviewable discretion. [00:36:59] Speaker 01: That's the key point, Your Honor, on [00:37:01] Speaker 01: 1252A2B. [00:37:02] Speaker 04: How do A and B work together? [00:37:06] Speaker 04: I mean, they both are presenting problems for the plaintiff because the terms are so strong. [00:37:13] Speaker 04: How do they work together in your mind? [00:37:16] Speaker 01: A meaning the review relating to Section 1225B1. [00:37:20] Speaker 04: And then B, denials of discretionary review. [00:37:25] Speaker 04: Sure, Your Honor. [00:37:26] Speaker 04: What is B adding to A? [00:37:28] Speaker 04: Because A takes big bites out of everything. [00:37:31] Speaker 01: Right, it does. [00:37:32] Speaker 01: I think A is really focused on expedited removal in particular, Your Honor. [00:37:37] Speaker 01: It's really saying, look, there's almost no review of expedited removal orders, period, except for turn the page and see E3, essentially. [00:37:49] Speaker 01: So it's focused on expedited removal. [00:37:51] Speaker 01: B is really focused on protecting the Attorney General or Secretary's discretion across a realm of areas, Your Honor. [00:38:01] Speaker 01: There are a good variety of immigration relief, decisions, things that the agency heads can demand of folks that's left to the Secretary or Attorney General's judgment, discretion, and that's what B is protecting, is those matters of judgment and discretion. [00:38:20] Speaker 01: So there's some overlap as there is at times as there is in this case, but the focus is a little bit different. [00:38:29] Speaker 01: The first one is expedited. [00:38:30] Speaker 04: The change in the policy would be under B is what you're saying? [00:38:34] Speaker 01: I think the designation and the process for making that designation is captured under B. [00:38:43] Speaker 01: And again, that makes sense for the reasons I've said before, Your Honor, about how the term sole and unreviewable discretion and a designation that can be modified at any time really hits home that this is something that Congress really sought to protect from review outside of the political branches. [00:39:03] Speaker 01: It does arise in the immigration enforcement context, so it is one of those areas where the executive has significant leeway and judgment and discretion. [00:39:12] Speaker 01: So that'll make sense there. [00:39:18] Speaker 01: And I know that I'm a ways past my time to address some of the more specific noticing comment points that I think you were also highlighting, Judge Edwards, is [00:39:30] Speaker 01: This sole and unrevealed discretion, and may it be modified at any time, that language together in this context really shows that the APA's notice and comment requirements are displaced. [00:39:43] Speaker 01: I mean, the thrust and the point of those plain terms. [00:39:47] Speaker 01: Now, you're talking about 1225 now. [00:39:52] Speaker 01: Yes, Your Honor. [00:39:53] Speaker 01: Yes, the 1225B1. [00:39:56] Speaker 07: Can I ask you a practical question? [00:39:57] Speaker 07: I mean, does the Secretary in this context of designating certain categories of people for expedited removal, is the Secretary required to post something in the Federal Register? [00:40:07] Speaker 07: Or could they exercise that discretion without any type of written notice? [00:40:19] Speaker 07: I mean, could the Secretary make this decision without having [00:40:23] Speaker 07: published a notice in the Federal Register or elsewhere. [00:40:29] Speaker 01: We haven't really made a... I'm not aware of making a claim one way or another. [00:40:32] Speaker 07: I'm just curious whether that is required under either the statute or the 1997 regulations. [00:40:38] Speaker 01: Right. [00:40:40] Speaker 01: As I'm standing here, I can't think of something in the statute or regulations that requires it, Your Honor. [00:40:46] Speaker 01: I don't want to over speak if I'm wrong. [00:40:48] Speaker 01: I believe that at some point in the regulations that [00:40:51] Speaker 01: the Attorney General, I believe, may have established a mechanism for how these would be done, and I think that's now done by notice. [00:40:59] Speaker 01: So it's possible to have that. [00:41:01] Speaker 01: Going back to the original statute itself, whether it requires publication, I don't know that we've taken a position on that. [00:41:08] Speaker 01: I'm not sure. [00:41:08] Speaker 04: The more important point is whether you posted in the Code of Federal Regulation, because that would be a kind of concession that it's a rule, and then the requirement of notice and comment [00:41:19] Speaker 04: should click in under normal APA rule. [00:41:22] Speaker 04: I mean, what is interesting here is you have never through, or as I can tell, Clinton, Bush, Obama administration through a lot of administrations, you have consistently said notice and comment is not required. [00:41:38] Speaker 04: You have never posted in the Code of Federal Regulation. [00:41:42] Speaker 04: And in every one of those administrations, we went back and looked at them. [00:41:45] Speaker 04: Well, you posted a notice in the Federal Register, but that does not make something a rule because it's posted in the Federal Register. [00:41:53] Speaker 04: That's why it was perplexed you weren't raising that argument. [00:41:55] Speaker 04: You have a very firm, the government has a very consistent 20-year history of [00:42:00] Speaker 04: We, from the beginning, after the very first regulation, you have consistently said, these are not regulations, and you have never posted them in the Code of Federal Regulations. [00:42:12] Speaker 01: I think you make a very good point, Your Honor. [00:42:15] Speaker 01: It's right that we've done it by notice, not by saying, look, this is a perspective. [00:42:22] Speaker 01: It fits in a little bit to the general statement of policy point that we're making, Your Honor, that, look, we're advising the public on how we're going to exercise this discretion that Congress gave us. [00:42:34] Speaker 01: Line officers retain their discretion to put somebody not in expedited removal proceedings at all. [00:42:39] Speaker 01: They can go into full removal proceedings. [00:42:41] Speaker 01: It's just it's not a binding rule subject to notice and comment. [00:42:45] Speaker 04: I think the only curiosity here is if you take the normal picture of what goes on in that law, there are lots of places where agencies can have notices, policies, or whatever they are. [00:42:59] Speaker 04: that are not subject to notice and comment rulemaking and cannot be challenged because they're not rules and we can't make them rules, but when they are then later enforced, [00:43:11] Speaker 04: they're subject to review upon enforcement. [00:43:13] Speaker 04: And I think your argument here, if I'm understanding you correctly, save whatever someone can get out of the, they don't have that possibility. [00:43:21] Speaker 04: So you don't have, your argument is they don't have to post, we don't have to post this. [00:43:25] Speaker 04: It's not a rule, we've never said it's a rule, and we don't have to make it a rule for what Judge Colton said in the 11th Circuit. [00:43:31] Speaker 04: And when we implement this thing, it can't be challenged. [00:43:36] Speaker 04: That's your argument? [00:43:39] Speaker 01: I think it's the designation, Your Honor, is, I think it's not, that's what sole and unreviewable discussion means, not subject to review. [00:43:47] Speaker 01: It could be different for the suits authorized in E3. [00:43:52] Speaker 04: No, no, I understand a couple of categories. [00:43:54] Speaker 01: Right, yeah, I'm just drawing that distinction, Your Honor, but I think the designation. [00:43:56] Speaker 04: No, let's take this case. [00:43:57] Speaker 04: You've expanded the net, so now it includes X number more potential immigrants. [00:44:02] Speaker 04: That's what this fight is about. [00:44:04] Speaker 04: The way the government has been playing that out is we can do that any time we want, like the Obama administration added a Cuban group, as I remember correctly. [00:44:13] Speaker 04: Before that, additional groups were added. [00:44:15] Speaker 04: The group was never done by rule, and we can't find any cases suggesting that the failure to use notice and comment rulemaking was a legal failure. [00:44:25] Speaker 04: So all I'm asking you now to make sure I understand this case is when a person who's now in that expanded group, [00:44:35] Speaker 04: gets removed, he or she has no lawsuit, no claim. [00:44:40] Speaker 04: They certainly can't go back and say, wait, you made a mistake in expanding the group. [00:44:45] Speaker 04: They can't challenge that, right? [00:44:47] Speaker 04: And so do they have any claim that they can raise, other than the little category that you're willing to concede and eat? [00:44:56] Speaker 01: I think it really is limited to eat, Your Honor. [00:44:59] Speaker 05: But to be crystal clear, as I read your brief and tell me if I'm wrong, [00:45:05] Speaker 05: The only individuals who can even bring that claim, let's say they've got a claim that it's, that you did was unconstitutional. [00:45:13] Speaker 05: You expanded within the statutory limits, but you said this extra expansion only applies to non-white people. [00:45:20] Speaker 05: And someone says, I think that's unconstitutional. [00:45:24] Speaker 05: But as I read your brief, unless they happen to be so fortuitous as to have this rule applied to them within the first 60 days it's first applied to somebody, [00:45:35] Speaker 04: They can't even bring a constitutional challenge? [00:45:52] Speaker 01: I think, Your Honor, it is a hard issue, and I take the point. [00:45:56] Speaker 05: No, that's your argument, right? [00:45:58] Speaker 05: I think that unless somebody meets the criteria of E3, they cannot bring a suit, and that applies to... And that's your 60 days, so it doesn't run from when you first adopt the rule as AILA held. [00:46:14] Speaker 05: And it doesn't rule from 60 days when you apply the rule to me. [00:46:18] Speaker 05: It only applies, if I understand it, please tell me if I'm wrong. [00:46:21] Speaker 05: Your theory is that the clock starts running when you first apply it to the first subject individual. [00:46:29] Speaker 05: And if I'm not, if they don't, if the government doesn't apply it to me until day 61, 2, 3, [00:46:36] Speaker 05: I cannot bring that constitutional challenge. [00:46:38] Speaker 05: Is that right? [00:46:39] Speaker 05: Is my understanding right or wrong? [00:46:41] Speaker 01: I think that's right. [00:46:41] Speaker 05: Isn't that unconstitutional reading of the statute? [00:46:44] Speaker 01: Your Honor, I think I would not concede that it is, but I would say that I assume that if that were ever to happen, the issue would be litigated. [00:46:52] Speaker 01: I don't think the court needs to reach that here given that we don't have that situation. [00:46:56] Speaker 05: No, that's your reading. [00:46:57] Speaker 05: I mean, I don't know how we cannot adopt your reading of the statute. [00:47:00] Speaker 05: Yours is that it's implementation. [00:47:04] Speaker 05: You know, there's points in AILA that you can refer to here but that it's, it's a little hard for me to know how to interpret this if I can't take or leave your reading of it. [00:47:12] Speaker 05: I take your same, the same position would be if the secretary said, we're applying this and you better show that you have been here two years in one day. [00:47:22] Speaker 05: I take it the statute is up to two days here. [00:47:28] Speaker 05: If you're at two years, you win. [00:47:29] Speaker 05: They say two years. [00:47:30] Speaker 05: We think it's ambiguous. [00:47:33] Speaker 05: We think the statute says unless you've been here two years in one day. [00:47:36] Speaker 05: So if you've been here two years, we still get to remove you. [00:47:40] Speaker 05: So let's fight about whether it's up to two years or on the two years date. [00:47:43] Speaker 05: So there's this important statutory question. [00:47:47] Speaker 05: And again, no one could bring that unless you apply it to them within the first 60 days. [00:47:54] Speaker 01: There may be another provision under E that would present an issue there, Your Honor. [00:47:59] Speaker 05: Another provision under E that would allow them to sue or bring legal and constitutional challenges? [00:48:04] Speaker 01: Your Honor, it's hard, this is a hard statute to describe in the abstract. [00:48:09] Speaker 01: What I've tried to emphasize is... I guess I don't think that's abstract. [00:48:13] Speaker 01: I mean, this again calls for a situation where, we haven't had a, AILA did reject a situation where [00:48:21] Speaker 01: It was basically like, oh, hypotheticals if people couldn't bring suit and that kind of a thing. [00:48:25] Speaker 01: They said, look, we have people who are able to sue timely here. [00:48:28] Speaker 01: We don't think that that's a problem. [00:48:31] Speaker 01: And I think it's something that a court should address, if at all, when that issue is squarely presented. [00:48:37] Speaker 01: I understand your own point. [00:48:38] Speaker 05: But the concern is that it just can't get presented for people who are subject to expedited removal because it goes so fast. [00:48:44] Speaker 05: So they'd like to bring it now, and they needless to say don't want to reveal their names and addresses, and you're saying they can't. [00:48:51] Speaker 01: I still don't, I'm not sure that that bars them from bringing suit, Your Honor. [00:49:01] Speaker 01: I mean, that could be a separate issue. [00:49:05] Speaker 01: I'm not sure how that would. [00:49:06] Speaker 05: Well, it could be a statutory bar. [00:49:07] Speaker 05: I'm just talking about reality. [00:49:10] Speaker 05: Congress had a reality here for expedited removal that was, [00:49:13] Speaker 05: very fast. [00:49:14] Speaker 05: They called it expedited removal for reading. [00:49:16] Speaker 05: They had a concern they were addressing, and that's what the political branches get to decide to do in our system. [00:49:22] Speaker 05: But it just doesn't seem to fit with the reading we're getting here. [00:49:27] Speaker 01: What I'd emphasize, Your Honor, is that this does, I think, emphasize the point that that sort of issue should be considered at the time when there are actual plaintiffs. [00:49:35] Speaker 01: Expedited removal is something that... There are actual plaintiffs here. [00:49:39] Speaker 01: You haven't disputed that these are actual... I'm sorry, individual plaintiffs, Your Honor. [00:49:42] Speaker 05: Thank you, Your Honor. [00:49:49] Speaker 03: Mr. Balakrishnan, do I say that correctly? [00:50:04] Speaker 03: I want to roughly track the sequence that the court proceeded with appellants on the arguments, touch very, very briefly, hopefully, on a couple of questions that Judge Malet you asked about the E3 issue, and then move on to the question of the other statutory issues involved, which were A2, B2, which purportedly strips judicial review over the Notice of Common Claim and the merits of the Notice of Common Claim. [00:50:31] Speaker 03: But of course, if there are questions, I will answer them. [00:50:34] Speaker 03: So just to begin, Judge Mullen, you had asked whether there were any cases where individuals had filed E3 cases before they're deported. [00:50:41] Speaker 03: The only ones we're aware of and that we've been involved in very recently are ones where the plaintiffs were put through scramble. [00:50:48] Speaker 03: Oh, I'm sorry. [00:50:53] Speaker 03: That's as high as it goes. [00:50:54] Speaker 03: I'll speak up. [00:50:56] Speaker 03: Yeah, so the only cases that we're aware of are ones where people have, in fact, gone through the credible fear process and been denied. [00:51:02] Speaker 03: And of course, that's a longer process where you're detained. [00:51:06] Speaker 03: And you also have a period of time to consult with counsel. [00:51:08] Speaker 03: In those cases, they're oftentimes detained in facilities which have legal programs pro bono that are serving the population. [00:51:15] Speaker 03: So they oftentimes will touch or communicate with a lawyer at that time and therefore be able to potentially bring an E3 suit in DC. [00:51:24] Speaker 05: Well, I guess they're hypothetical that if they didn't allow the consultation, you could sue. [00:51:27] Speaker 05: It doesn't really work so well then if you can't talk to a lawyer to bring the suit to challenge the lack of consultation. [00:51:33] Speaker 03: Of course. [00:51:33] Speaker 03: If there was a situation where you were denied your consultation right during the credible fear process, because that's where the consultation right applies, you would have a claim then. [00:51:42] Speaker 03: It may be harder to bring a lawsuit. [00:51:44] Speaker 03: But I think the problem here, of course, with the expansion is you're not talking about people who are necessarily going to go through the credible fear process. [00:51:51] Speaker 03: You're talking about people who will be just simply walking down the street, and this happens that it's in the declarations that we submitted to the district court and earned the record, where someone will be picked up, say, by a state or local police officer. [00:52:03] Speaker 03: They will then report them to immigration. [00:52:05] Speaker 03: They will then be issued an expedited removal order. [00:52:07] Speaker 03: They will not claim a credible fear, and they will be [00:52:09] Speaker 03: removed within days and potentially even hours if they may be from Mexico and it would be easier to deport them. [00:52:16] Speaker 03: And that's the reality of the way that the expedited movement is going. [00:52:19] Speaker 05: So there are issues, again, I don't know how this works in practice. [00:52:21] Speaker 05: So local police pick them up for whatever, their phone call to, let's see, INS, I don't know which office it is that they're calling, and ICE or something like that, and they come [00:52:36] Speaker 05: I guess an officer comes or they take the person and there's someone there that does the, is it the people who come who actually do the, are they the immigration officer? [00:52:43] Speaker 03: I mean it would be, I mean it can be done by either an officer of the Immigration and Customs Enforcement or Customs and Border Patrol. [00:52:50] Speaker 03: So two different sub-agencies within the Department of Homeland Security. [00:52:53] Speaker 05: Well I'm assuming from the middle of the country it's not going to be Border Patrol, right? [00:52:56] Speaker 03: In the new expended area? [00:52:58] Speaker 03: Yes, that's, it's possible. [00:53:00] Speaker 03: I mean, though, even within the 14 days, 100 miles. [00:53:04] Speaker 03: That doesn't matter so much. [00:53:05] Speaker 05: So the ICE or ICE officers come and they bring with them an officer, or does each ICE officer count as an immigration officer for purposes of the statute? [00:53:15] Speaker 03: For the purpose of the statute, yes. [00:53:17] Speaker 03: It's an individual line ICE officer is authorized to issue an order, an expedited order of removal on the spot. [00:53:24] Speaker 03: So they would simply determine whether continuous presence had been met, alienage had been met, and the other two sort of statutory requirements of whether they've entered without inspection or not, and then they would issue them an order of removal. [00:53:36] Speaker 03: And at that point, that order of removal is final but for a paper review by a supervisor, which doesn't involve, of course, is not contested in any way. [00:53:46] Speaker 03: It's not a live hearing. [00:53:47] Speaker 03: It's just a supervising officer can just look at it and check off and say, yes, this looks fine. [00:53:52] Speaker 06: And that's the entirety of the process. [00:53:54] Speaker 03: I mean, within what we've seen, which, of course, has been only at this point limited to the border, because I think it's important to understand that even though that extends to the 100 miles, predominantly it's used very close to the border in Mexico. [00:54:08] Speaker 03: And it can take, I mean, it's minutes. [00:54:10] Speaker 03: A CBP officer will just intercept someone as they see them crossing the border or see them near it and deliver the paper right there. [00:54:16] Speaker 03: So it's very speedy. [00:54:18] Speaker 06: Can I? [00:54:20] Speaker 04: Oh, I'm sorry. [00:54:22] Speaker 04: Go ahead. [00:54:23] Speaker 04: The concern I have is, [00:54:26] Speaker 04: it's very limited in focus to me because you're trying to proceed on the E and as I understand it, you are principally arguing that the failure to use noise and comment rulemaking is otherwise in violation of law, otherwise you don't have anything, assuming that they're wrong on their standing creation. [00:54:48] Speaker 04: Otherwise in violation of law. [00:54:50] Speaker 04: And there are cases that compellingly say [00:54:54] Speaker 04: when an agency has this much nonreviewable discretion, it makes no sense to think there's a notice of comment requirement on the APA. [00:55:06] Speaker 04: Under Section 701 and 2 of the APA, I don't know how you have a cause of action with respect to a nonreviewable matter to say that you have to have notice and comment. [00:55:17] Speaker 04: And in addition, [00:55:19] Speaker 04: You have this long history through several administrations, making it clear to the public we are not going to use notice and comment rulemaking. [00:55:28] Speaker 04: So there's a set of cases where had they called it a rule, you're in the swing. [00:55:32] Speaker 04: They don't. [00:55:33] Speaker 04: They've never called it a rule. [00:55:34] Speaker 04: They've just put it in the Federal Register. [00:55:36] Speaker 04: That's it. [00:55:36] Speaker 04: They've always made it clear it's not a rule. [00:55:39] Speaker 04: And if it's not a rule, you presumptively do not have to use notice and comment rulemaking. [00:55:44] Speaker 04: So I don't know how you can ride this horse. [00:55:47] Speaker 04: That's my biggest problem on your side. [00:55:49] Speaker 04: I just don't understand it. [00:55:51] Speaker 03: I understand, Your Honor. [00:55:52] Speaker 03: I'd like to take those in reverse order, because I think the answer to the second is a bit quicker, which is, you know, I don't think that the fact that the government has previously bypassed notice and comment is dispositive of that question at all. [00:56:02] Speaker 03: There have been no lawsuits under E3 since the initial ALA lawsuit in 1997. [00:56:08] Speaker 03: In that first, when they first implemented the 1996 act, they did go through notice and comment. [00:56:14] Speaker 04: Yes, they developed the basic rule, yeah. [00:56:17] Speaker 03: Yeah, of course. [00:56:17] Speaker 03: And then since then there have been two expansions, you know, to the 14 days and for people arriving by seat. [00:56:22] Speaker 03: Those were never challenged in court. [00:56:24] Speaker 04: And so the lack of any cases... Well, they have been subject to litigation, but that was not... [00:56:30] Speaker 04: I understand. [00:56:39] Speaker 03: So then moving to the first part of your question. [00:56:44] Speaker 03: I just want to be very clear that there's two different questions on the table here, which is the first is a threshold jurisdictional question as to whether there's judicial review to hear our notice of common claim, and the second question is whether the notice and common procedures apply. [00:57:01] Speaker 03: The cases that the government cites in their brief, and I believe that [00:57:06] Speaker 03: that Your Honor is referring to are cases that deal specifically with that first question and they do so within the context of the judicial provision that you mentioned in your colloquy previously which is 1252A2B2, right? [00:57:22] Speaker 03: And so that section is basically, it's targeted, it strips judicial review over challenges to denials of discretionary relief. [00:57:31] Speaker 03: That's what it does. [00:57:33] Speaker 03: That's what its title says. [00:57:34] Speaker 03: And as the district court correctly recognized, that section does not apply to our challenge here, because we are not challenging a denial of discretionary relief. [00:57:44] Speaker 03: And the reading that we're offering on 1252A2B2 is directly compelled by the Supreme Court's holding it kind of beholder. [00:57:54] Speaker 03: where the Supreme Court's what? [00:57:56] Speaker 03: Holding in Kukano v. Holder. [00:57:58] Speaker 03: Because there the Supreme Court specifically read that statute to apply to denials of discretionary relief and read the catch-all exception upon which the government relies as having to be read as a like kind as the other parts of the statute. [00:58:14] Speaker 03: So I think it's abundantly clear that that as a threshold matter, 1252A2B2 does not apply to our notice and comment challenge. [00:58:22] Speaker 05: That's just a jurisdictional argument. [00:58:23] Speaker 03: That's a jurisdictional provision, but that is also the provision that's involved in each of the cases that the government is citing in their brief. [00:58:41] Speaker 03: awfully committed to agency discretion by law. [00:58:55] Speaker 03: There is a question, there's a background question. [00:58:57] Speaker 03: I think Lincoln v. Vigil in the Supreme Court considers a challenge to a new policy and it considers first whether it's committed to agency discretion by law and therefore there is no judicial review over an arbitrary and capricious claim. [00:59:12] Speaker 03: And then separately, and it specifically states as an entirely separate matter, it determines whether the agency should have nonetheless gone through notice and comment rulemaking. [00:59:21] Speaker 05: What is your vision of notice and comment rulemaking? [00:59:25] Speaker 05: Because normally the point of, we don't just say put the notice out there and get comments. [00:59:34] Speaker 05: We then require the agency to sort of wrestle and reason with the comments. [00:59:40] Speaker 05: Is your theory that, no, they don't have to do that because it's sole and unreviewable discretion, but they have to put the notice out there and get the comments in? [00:59:50] Speaker 05: and then they can ignore them? [00:59:53] Speaker 05: In fact, they did that here. [00:59:54] Speaker 07: I mean, the agency put this out, notice out, said it was effective, but also sought comments. [00:59:59] Speaker 03: It did go, that's correct. [01:00:01] Speaker 03: But here's the thing. [01:00:02] Speaker 05: And I took your position to be, oh, no, you didn't write them with those comments. [01:00:06] Speaker 03: The question was pre-promulgation, notice and comment wasn't followed under 553. [01:00:10] Speaker 03: But 553 requires as a mandatory matter that the agency accept, like issue notice, accept comments and then issue is, you know, a concise statement of its reasons thereafter. [01:00:23] Speaker 03: And that's entirely, the reasons for that are entirely separate from sort of ensuring judicial review over the substantive rule that is developed. [01:00:31] Speaker 04: I don't see how you're disconnecting the substantive rule. [01:00:34] Speaker 04: I mean, the way you're arguing in your brief, and even as you're stating it now, you're sliding into the substantive result. [01:00:41] Speaker 04: You're saying that a judgment can be, I don't know how you get past 701.72 in the APA. [01:00:47] Speaker 04: I don't know how you can call, even have a cause of action to get the jurisdiction, how you can have a cause of action under the APA, including a claim that you failed to use [01:00:56] Speaker 04: notice and comment rulemaking when it says that the designation shall be in the sole and unreviewable discretion of the attorney general and may be modified at any time. [01:01:06] Speaker 04: I don't know how that works with notice and comment other than you have to do it and then we're done. [01:01:13] Speaker 03: But there's reasons to do it. [01:01:14] Speaker 03: I mean, this Court and the Supreme Court have been clear that the purposes of notice and comment from the very origins of the APA are not solely about providing for judicial review. [01:01:23] Speaker 03: It's to ensure public participation in the rulemaking process and also importantly... But that's what Judge Carlton and others have said. [01:01:29] Speaker 04: That makes no sense with the statute that says... [01:01:32] Speaker 04: We're not looking for public. [01:01:34] Speaker 07: I mean, maybe another way of focusing on that is what is the meaningful standards that are here? [01:01:38] Speaker 07: I mean, if something is in the sole and unreviewable discretion of the secretary, what are the meaningful standards? [01:01:44] Speaker 07: Here the district court kind of imported, suggested the INA doesn't provide standards and then said, well, the APA itself provides standards. [01:01:51] Speaker 07: I mean, is there any other case that has? [01:01:55] Speaker 07: held in a similar way using the APA as the meaningful standards for review under a different statute? [01:02:01] Speaker 03: I mean, I think there's two different questions there, and I just want to try to be clear. [01:02:06] Speaker 03: So the first is whether, I mean, the applicability of notice and comment does not turn on whether there's any meaningful standards. [01:02:12] Speaker 03: Otherwise, the Supreme Court and Lincoln wouldn't have gone on to the second part of its holding or reasoning at all. [01:02:17] Speaker 03: So I think those are two separate questions. [01:02:21] Speaker 03: And as to what the reasonable sort of the, you know, the standards are applicable here, it's not necessarily the APA itself. [01:02:28] Speaker 03: The district court also looked at the INA because the INA, I mean, the expedited removal statute itself sets out specific classes who can be included, who must be included. [01:02:38] Speaker 03: And the question there is whether the existing procedures that they have in place and the way they've administered them [01:02:46] Speaker 03: can be extended to this new class of people in a fair and accurate manner. [01:02:52] Speaker 03: That's a different claim. [01:02:53] Speaker 03: That is a different claim. [01:02:54] Speaker 03: That's the arbitrary and capricious claim. [01:02:55] Speaker 04: No, no, no. [01:02:56] Speaker 04: That would be under E3. [01:02:57] Speaker 04: You've got to stay with the statute. [01:02:59] Speaker 04: That would be E3 otherwise unlawful. [01:03:01] Speaker 04: You're not making that claim. [01:03:03] Speaker 04: You're still trying to hook it on your notice and comment. [01:03:06] Speaker 04: And I don't know what's the notice of proposed rulemaking. [01:03:10] Speaker 04: We want to see how everyone likes this. [01:03:11] Speaker 04: And then are we supposed to look at it when it's reviewable? [01:03:15] Speaker 04: or can you challenge it because it doesn't satisfy a reasoned decision-making standard? [01:03:20] Speaker 03: I mean, I think it's possible to have a notice and comment requirement without providing for judicial review at the end because the government... That's what we're trying to figure out. [01:03:28] Speaker 04: So you're saying they just have to go through it. [01:03:30] Speaker 03: I think that could be one answer to the question. [01:03:33] Speaker 03: Well, I'm curious to know what you think the answer is. [01:03:35] Speaker 03: Can you cite the case? [01:03:35] Speaker 03: It makes no sense to me. [01:03:39] Speaker 04: Again, I can't get past 701 and 702, because I'm just looking as far as the cause of action. [01:03:44] Speaker 04: I don't know how you have any cause of action under the APA when you have a statute like this that says, sole and unreviewable discretion, enemy be modified at any time. [01:03:55] Speaker 04: But nonetheless, you have to have notice and comment about that? [01:03:59] Speaker 03: Yes, Your Honor. [01:03:59] Speaker 03: I mean, I think that it's, I mean, yes, that is our position. [01:04:02] Speaker 03: And I think it's... No, I'm trying to figure out how you justify it and know it's your position. [01:04:07] Speaker 04: Right, of course. [01:04:08] Speaker 03: I'm sorry about that. [01:04:09] Speaker 03: Yeah. [01:04:10] Speaker 03: And to be clear, I mean, there's, I think that there's two separate questions. [01:04:14] Speaker 03: And I think as to the first is to whether we've, whether we're barred under 701A or not. [01:04:21] Speaker 03: I think that is answered by the clear mandatory duty of the notice and comment requirements [01:04:33] Speaker 03: that provides the law to apply. [01:04:34] Speaker 03: I think that this, to the second question, which is specifically what sort of review we think, or how we read the statute, which is 1225, the, you know, sole and unreviewable discretion statute, I think it has to be read against Congress's intent in creating it, which is the following. [01:04:51] Speaker 03: When Congress created expedited removal in 1996, it was a massive change from 100 years of settled practice, where everyone, no matter where they were in the country, no matter how long they had been here, [01:05:02] Speaker 03: had a full hearing on whether they were to be deported or not. [01:05:06] Speaker 03: They eliminated that, but they eliminated it only for people at the port of entry. [01:05:12] Speaker 03: They then authorized the agency to expand that further, but they required that the agency first go through the designation process. [01:05:21] Speaker 03: Congress could have written the statute differently. [01:05:24] Speaker 03: Congress could have just said, we are authorizing the use of expedited removal for anyone who can't show two years [01:05:31] Speaker 03: of continuous presence and then allowed the agency to just modify that as they will given their prosecutorial discretion which the agency is allowed to do under other provisions of the INA. [01:05:42] Speaker 05: But Congress didn't want to do it through individual case by case prosecutorial discretion but instead wanted to start this and then said and then here's as far as you can go with this rule, you know, under two years. [01:05:59] Speaker 05: We're not starting there, but you can go there when in your sole judgment that is appropriate. [01:06:14] Speaker 07: How else would Congress write that statute? [01:06:17] Speaker 07: How could you write something stronger than sole and irrefutable discretion? [01:06:21] Speaker 04: I was trying to think if I've ever seen a statute in 40 years here that has so many places that make it clear [01:06:28] Speaker 04: you and other respectful claims can't get to? [01:06:32] Speaker 03: Well, I think two answers to that. [01:06:34] Speaker 03: I mean, first, this court already has doctored on when a statute is clear enough to supersede the notice and comment requirements, which are, you know, that's the standard that's set out in 5 U.S.C. [01:06:44] Speaker 03: 559 of the APA, which requires an express statement that notice and comment requirements don't apply, or the creation of an alternate procedure that it cannot be harmonized with the notice and comment requirements. [01:06:54] Speaker 03: And I think in this case, the statute can be easily harmonized with the notice-in-common requirements. [01:07:00] Speaker 03: There's nothing in the statement of modified at any time that prevents the government from proceeding through notice-in-common so long as it whatever it chooses to modify the scope of expanded... To what end? [01:07:11] Speaker 04: That's what we keep asking you, to what end? [01:07:13] Speaker 04: And you've edged on that because you're not sure either. [01:07:16] Speaker 03: No, but it's to the end of insuring. [01:07:18] Speaker 03: I mean... Insuring what? [01:07:19] Speaker 03: Ensuring that the agency acts with full and accurate information while it does so. [01:07:25] Speaker 03: And the reason for that is because otherwise you would have this, you could allow for decision making to be made without consultation of any relevant data. [01:07:34] Speaker 04: Could the agency say, the reason we're doing issue making is, this reason is, pursuant to my sole and unrevealable discretion, which I can change tomorrow if I want to, [01:07:45] Speaker 04: is it looks like the numbers are slightly up, and that bothers me, and so I think the net should be broader. [01:07:51] Speaker 04: That's it. [01:07:52] Speaker 04: Case closed. [01:07:53] Speaker 03: Well, so long as they considered sort of that, whether the procedures could be administered fairly. [01:07:57] Speaker 04: No, no, I'm telling you, that's all, that's all. [01:08:00] Speaker 04: It's really two sentences. [01:08:02] Speaker 04: The numbers are up, and so I'm concerned, and I think it will make sense to broaden the net. [01:08:09] Speaker 04: That's it. [01:08:10] Speaker 04: Now, can you somehow get at that? [01:08:12] Speaker 03: Yes, because I think it would go to the question of whether the notice and common proceedings had been followed in the first place. [01:08:23] Speaker 04: They were followed, they gave notice, and they said... Lots of comments came in. [01:08:28] Speaker 04: Yeah, lots of comments, we proposed to do it, and then the answer is the numbers are up, we're concerned about it, and so the net's going to be broken. [01:08:35] Speaker 03: Yes, I think at that point the government could do that. [01:08:39] Speaker 03: Could you challenge it? [01:08:41] Speaker 03: Could you challenge that? [01:08:42] Speaker 03: We could attempt to do so but... Does your theory of the statute mean that that... I don't want to hear attempt. [01:08:48] Speaker 05: I want to know. [01:08:49] Speaker 05: I assume you would only attempt it if you had a good faith view of the statute. [01:08:52] Speaker 05: So is your good faith view of the statute that it would still allow you at that point to say that's not sufficient explanation, that's not reason and you didn't consider ABC comments? [01:09:06] Speaker 03: We could raise a challenge that said that they didn't consider certain relevant factors. [01:09:12] Speaker 03: But so long as the material was in the record and the face of the regulations showed that they had considered the materials, we would likely lose on that. [01:09:23] Speaker 03: I think that that would be the end result of notice of common rulemaking. [01:09:26] Speaker 03: But to be clear, there is a presumption of regularity and a presumption that the government will act in good faith in response to information that's provided to it. [01:09:34] Speaker 03: And in this case, you know, [01:09:36] Speaker 03: It's clear from the administrative record. [01:09:38] Speaker 05: If you're a congressman, you wanted to say, we don't want that, for this. [01:09:43] Speaker 05: We want to let them make the judgment, make the judgment on the spot. [01:09:48] Speaker 05: We don't want public input, that takes too long. [01:09:53] Speaker 05: We don't want courts, that takes too long, absent, substantive illegality or constitutionality. [01:10:01] Speaker 05: How else would you write this? [01:10:03] Speaker 03: you would state that notice that the procedures of 553 weren't applicable. [01:10:08] Speaker 03: It would be very simple. [01:10:09] Speaker 05: That assumes the APA is applicable. [01:10:10] Speaker 03: Well, assumes the APA is applicable. [01:10:13] Speaker 05: That only applies if you're within the APA. [01:10:16] Speaker 03: No, I understand that, but that would make it absolutely clear. [01:10:19] Speaker 05: I mean, the other thing that they would do... If you had written this thing called things that are committed to agency discretion by law will not be... [01:10:26] Speaker 05: under the APA but not within your cause of action. [01:10:29] Speaker 03: No, I understand that. [01:10:30] Speaker 05: And I think that here's, and I think that... How would you say, so you think they need to have said, and you are not subject to the APA? [01:10:37] Speaker 03: I think the other thing that they could have done to go to the other point would have also to have been clearer that the discretion attaches not to the ultimate designation itself, but rather to the process of designating. [01:10:49] Speaker 03: And this goes back to the line of cases that goes back to McNary and CSS. [01:10:53] Speaker 05: Well, there are the process issues where [01:10:55] Speaker 05: collateral in the Supreme Court's word to the decision itself. [01:10:59] Speaker 05: Here you are wrapping up the process and the decision itself. [01:11:03] Speaker 05: This process is not collateral to the decision making. [01:11:06] Speaker 05: It is the decision process. [01:11:09] Speaker 03: But the notice and comment requirement is entirely collateral. [01:11:12] Speaker 03: It doesn't as [01:11:13] Speaker 03: McNary made clear was the problem. [01:11:14] Speaker 05: It's not entirely collateral because we require, as you said, it makes it not just your decision but a public input. [01:11:22] Speaker 05: They have a role in the decision making too. [01:11:24] Speaker 05: At a bare minimum, that's what it would have to say. [01:11:27] Speaker 03: But that's the question as to like what sort of process that the decision maker has to go through but it doesn't dictate what the final decision is. [01:11:35] Speaker 03: The final decision as was the case in McNary and CSS and its progeny is still within the discretion of the agency. [01:11:42] Speaker 03: They can always say, [01:11:43] Speaker 03: We've looked at it, we've decided that our concerns outweigh these and so we are disregarding the comments or find that they're outweighed and we're done. [01:11:51] Speaker 07: So your rule would just make notice and comment rule making some kind of formality. [01:11:56] Speaker 07: It's in my sole and unrevealable discretion, you know, the example that Judge Edwards gave. [01:12:00] Speaker 07: We went through a process. [01:12:01] Speaker 07: We're going to do what we wanted to do anyway. [01:12:03] Speaker 07: But, I mean, that's, I mean, that suggests there's almost nothing to notice and comment at all. [01:12:08] Speaker 03: No, it doesn't because that, again, the underlying purposes of notice and comment aren't to preserve judicial review alone. [01:12:15] Speaker 07: No, but there's no effect agency decision making to make it more reasonable to have greater inputs, all of those things. [01:12:21] Speaker 07: But if you're saying at the end of the day, the agency can just do whatever it wants, [01:12:24] Speaker 03: Right, but this is a check on the agency from doing whatever it wants. [01:12:27] Speaker 03: It may not be the best check that would be possible, but it is a check that ensures at least some modicum of reason decision making. [01:12:34] Speaker 07: Can you point to any statute or case that suggests that there can, like, where there's notice and comment rulemaking, there's also not judicial review? [01:12:43] Speaker 07: I mean, can you point to any example? [01:12:45] Speaker 03: No, we haven't found any, Your Honor, but I do think that... I mean, that... Right, but I do think... The AP has been around a long time. [01:12:53] Speaker 03: Yes, but I also think that the way this statute is written is unique and the way that it cabins the discretion to the ultimate designation doesn't apply to the process. [01:13:02] Speaker 03: Unique is a very kind characterization. [01:13:05] Speaker 03: It's a very strange statute. [01:13:07] Speaker 03: Right, but I do think that those are the reasons why, you know, that the notice and comment procedures not only apply but also serve a valuable purpose even if there is no judicial review of the ensuing. [01:13:18] Speaker 05: I think we could perhaps just all say around and think it serves a wonderful [01:13:23] Speaker 05: purpose and agency decisions are better made that way, but that's not our call. [01:13:28] Speaker 05: If Congress says, I'm outside that realm, then they've decided what the best process or decision-making is, and we take that as given after the Constitutional legal challenge. [01:13:39] Speaker 03: No, and I understand this, and I think the Court understands my position and our position, which is that the statute is not clear enough. [01:13:46] Speaker 03: that first, that the statute does not cabin discretion over the entire process, but only the ultimate designation. [01:13:52] Speaker 03: Are you aware of it? [01:13:53] Speaker 05: Is today your case? [01:13:55] Speaker 05: I'm sorry. [01:13:55] Speaker 05: Please, you're second. [01:13:56] Speaker 03: No, go ahead. [01:13:56] Speaker 03: I was, yeah, and just second that there is no clear statement overriding notice and comment. [01:14:03] Speaker 05: McNary, Bowen, the other cases, I haven't seen any of them where they've made this process substantive decision separation where Congress used language in the statute like so unreviewable. [01:14:19] Speaker 05: Are you aware of a case where they've done the process decision separation where they've used language like that? [01:14:29] Speaker 03: For example, in the cases that the government cites in the 11th Circuit case Borden, that's precisely the distinction that the court drew to find that the procedural attacks brought by the plaintiff were cabined from judicial review. [01:14:45] Speaker 03: They specifically focused on the fact that the statute there... I'm sorry, maybe I should be clearer. [01:14:51] Speaker 05: Where a court has held... I'm most interested, obviously, in the Supreme Court and this court, but I'll take another. [01:14:57] Speaker 05: court of appeals if you have it, where the court has held that there a procedural challenge can be brought even though the decision itself was in the sole and unreviewable discretion of the agency. [01:15:16] Speaker 03: Other than McNary itself. [01:15:19] Speaker 05: McNary did not have sole and unrevealable discretion language, as I recall. [01:15:23] Speaker 03: No case on the specific sole and unrevealable. [01:15:27] Speaker 05: You have language that's analogous to sole and unrevealable or that phrase itself and the separation was made. [01:15:33] Speaker 03: No, but no, we do not have a case for that. [01:15:36] Speaker 03: We don't have a case that affirmative lease holds that does not prohibit, that still allows for procedural attacks. [01:15:44] Speaker 03: What we do have is the Congress, which is courts being very careful when the sole and unreviewable language is used to determine whether that is modifying the ultimate decision or the process slash verb that indicates the process of decision making. [01:16:03] Speaker 03: And that's the 11th circuit case Borden, which includes that in footnote two. [01:16:10] Speaker 03: Yeah, if the court has no further questions, thank you. [01:16:12] Speaker 05: Thank you very much. [01:16:15] Speaker 05: Mr. Stewart, I know you wanted to save three minutes, but we gave you about 30 minutes extra. [01:16:21] Speaker 05: Can we do two minutes for now? [01:16:22] Speaker 01: Very clear, Your Honor. [01:16:23] Speaker 01: I'll try to keep it under two minutes. [01:16:25] Speaker 01: Just to emphasize, I think the Court's focus on sole and unrevealable discretion and maybe modified at any time are critical and very important to show just unreviewability, the cause of action problems, the inapplicability of notice and comment. [01:16:41] Speaker 01: I think Judge Edwards, you mentioned Judge Colleton's opinion in Bremer. [01:16:45] Speaker 01: I think the point made here was a good one that when you have [01:16:48] Speaker 01: language like sole and unusual discretion and things like you have here, that means that the decision maker gets to make the decision without anyone's advice and consent. [01:16:56] Speaker 01: Otherwise, it just doesn't mean a lot. [01:16:58] Speaker 01: I'd also just emphasize [01:17:01] Speaker 01: Finally, in terms of jurisdiction under 1252A2B, what's barred, the language of that provision is extremely broad in describing judgment regarding the granting of relief, any other decision or action when it's specified in discretion. [01:17:18] Speaker 01: Here, we have a very, very potent specification of discretion. [01:17:22] Speaker 05: Well, no, but the discretion is, gotta be discretion. [01:17:26] Speaker 05: under the statute, right? [01:17:27] Speaker 05: So that means it can't be unconstitutional and it can't be in violation of this statute. [01:17:32] Speaker 05: And that's why you say it down in B when they talk about specified under this sub-chapter. [01:17:38] Speaker 05: And so if it's, you have to read the withholding of discretionary, of review here sort of consistent with, you have to harmonize it, I think is Supreme Court's words, with the grant of jurisdiction under E3. [01:17:54] Speaker 05: And so it cannot be, [01:17:56] Speaker 05: that the withdrawal of jurisdiction here takes away what E3A wanted to preserve, and that is arguments that it's unconstitutional, that you've exceeded the authority of the statute itself. [01:18:08] Speaker 05: That's just not the discretion that was conferred. [01:18:10] Speaker 05: The discretion that was conferred was to operate within [01:18:15] Speaker 05: the scope of Congress's assignment, which was very broad, sole and unreviewable to go as far as the statute will let you go. [01:18:23] Speaker 01: And the point I'd emphasize there, Your Honor, is that it's just the distinction I drew earlier between the designation and the written policies and guidelines implementing expedited removal. [01:18:33] Speaker 01: E3 speaks to and authorizes [01:18:35] Speaker 01: judicial review of the latter, but designation given sole and unreviewable, maybe modified at any time, the 1252A to B, that's where the bar is now. [01:18:46] Speaker 05: But your position isn't that what was granted in, sorry I'm getting these numbers wrong, in 1225, the sole and unreviewable discretion provision, what was granted there does not include unconstitutional decisions, does it? [01:19:05] Speaker 05: Unless I'm wrong, I didn't read you to be saying that the grant of sole and unreviewable discretion in 1225B1, B1, whatever it is. [01:19:18] Speaker 05: You know where I am. [01:19:19] Speaker 01: Right, right. [01:19:20] Speaker 01: The 1225B1A Romanette 3. [01:19:22] Speaker 05: They just come right off your tongue faster than mine. [01:19:25] Speaker 05: Yes. [01:19:26] Speaker 01: We probably do this all the time. [01:19:27] Speaker 01: Live with these a fair amount, Your Honor. [01:19:29] Speaker 05: That sole and unreviewable discretion there is not, does not include [01:19:35] Speaker 05: act unconstitutionally. [01:19:38] Speaker 01: We're not claiming the authority to act unconstitutionally. [01:19:42] Speaker 01: What we're saying is, like, this is a context where constitutional protections are extremely diminished. [01:19:49] Speaker 01: So it's just, that's why it's properly trusted. [01:19:51] Speaker 05: It's going to be hard to have a constitutional one. [01:19:53] Speaker 05: But if there is a constitutional one, we'll only apply to, we're expanding it to the full statutory limit, but only for non-white people. [01:20:04] Speaker 01: Again, Your Honor. [01:20:05] Speaker 05: Is that unconstitutional? [01:20:06] Speaker 01: Or are you saying that's within... I think it would raise a separate question about what the ability... Wouldn't it at least raise a constitutional question? [01:20:15] Speaker 01: Your Honor, I think what I would emphasize is what we have here is we don't have that situation. [01:20:20] Speaker 01: I take Your Honor's point. [01:20:21] Speaker 01: I take Your Honor's point. [01:20:22] Speaker 05: I know, because I'm not asking about the situation. [01:20:24] Speaker 05: I'm just asking how the statute works together, and I'm responding to your argument about committed discretion. [01:20:28] Speaker 05: I'm just saying, I thought the Supreme Court told us to read these decisions to harmonize. [01:20:33] Speaker 05: And so if Congress has said, for obvious reasons, you can still bring a constitutional challenge, but it'll have to pass Rule 11 as a constitutional claim, and it's harder here than in many other areas to do it. [01:20:47] Speaker 04: Every time you overreach, we rear up. [01:20:51] Speaker 01: I think it would just, it would need to meet the requirements of 1252 EE3 is how I would respond to that. [01:20:56] Speaker 05: But they should be read together. [01:20:58] Speaker 01: I mean, I think they – I'm certainly not divorced. [01:21:02] Speaker 01: I mean, of course, read the entire context of the statute. [01:21:05] Speaker 01: Thank you, Your Honor. [01:21:06] Speaker 05: Thank you very much.