[00:00:01] Speaker 00: Case number 19-5272, O.A. [00:00:03] Speaker 00: et al. [00:00:05] Speaker 00: versus Donald J. Trump as President of the United States et al. [00:00:09] Speaker 00: Mr. Rivani for the balance, Mr. Heria for the O.A. [00:00:13] Speaker 00: appellees, Mr. Wright for the SMSR appellees. [00:00:18] Speaker 02: Morning, Council. [00:00:19] Speaker 02: Mr. Rivani, please proceed when you're ready. [00:00:22] Speaker 04: Thank you. [00:00:23] Speaker 04: Good morning, Your Honors, and may it please the Court, and I'd like to reserve three minutes for rebuttal. [00:00:29] Speaker 04: Your honors plaintiffs organizations and individual aliens challenge a rule concerning asylum eligibility, a core and fundamental issue that is adjudicated in administrative proceedings and then reviewed in the Court of Appeals on a petition for review thousands of times a year. [00:00:46] Speaker 04: The district court, however, ignored the comprehensive Carefully reticulated [00:00:52] Speaker 04: claimed channeling and judicial scheme that Congress put together in 1996 and revised in 2005 and found that because this case involves organizations, as well as individuals challenging an APA under the APA a decision on the record. [00:01:07] Speaker 04: that that cannot be channeled through section 1252 into the courts of appeals. [00:01:11] Speaker 04: The district court was wrong at many of the cases from this court, not addressing 1252, but claimed channeling specifically, go into detail why, but the government's view of the court fundamentally misapplied the thunder basin framework. [00:01:25] Speaker 04: And even if there is jurisdiction, we think the organizations lack a cause of action, not within the zone of interest, and in any event, the government wins on the merits. [00:01:34] Speaker 04: So starting with jurisdiction. [00:01:36] Speaker 04: As we lay out in our briefing 8 USC 1252 is a very is a carefully circumscribed specific claim channeling and in some instances claim barring. [00:01:47] Speaker 04: provision of the INA and in our view, it does two things that relevant to this case first it channels all the individual aliens in this case to channel their claims into the petition for review process. [00:01:58] Speaker 04: At the time this case was filed all but one of the individual plaintiffs was issued a notice to appear and so that had that triggered the administrative review process. [00:02:08] Speaker 04: At the time, the court issued its decision that last individual had also been placed in the removal proceedings and so that that individuals claim was no longer right to proceed in the district court. [00:02:19] Speaker 04: And as to the organizations, 1252 specifically provides for a cause of action only to individual aliens. [00:02:25] Speaker 04: It does not provide a cause of action to organizations seeking to allege claims or raise claims on behalf of third-party aliens. [00:02:34] Speaker 04: So whether or not the organizations may have organizational standing, the claim channeling scheme itself provides a cause of action for the aliens only. [00:02:41] Speaker 04: And I think starting with two of the fundamental Supreme Court cases on this that we cite in our briefs, [00:02:47] Speaker 04: specifically block in Thunder Basin. [00:02:48] Speaker 04: I think just a quote from blocks that the district court didn't address, although that we cited to the district court. [00:02:54] Speaker 04: This is at pages 352 to 53, 467 US. [00:02:59] Speaker 04: A statute that provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons. [00:03:08] Speaker 04: If the statute does that, I should say, quote, judicial review of those issues at the behest of other persons may be found to be impliedly precluded. [00:03:15] Speaker 04: And I think the district court and plaintiffs on appeal rely on the canon that there is a presumption of judicial review of agency action. [00:03:22] Speaker 04: And unless the statute uses magic words that say this claim by this plaintiff is barred, then the claim may proceed. [00:03:29] Speaker 04: But I think the lesson of this court's cases and the Supreme Court cases, here I'm referring to Jarkesi and American Federation, both one from 2013 and 2019, on which I think [00:03:42] Speaker 04: Each of your honors was part of at least one of the cases in the decision. [00:03:45] Speaker 04: I'll point out that the opposite is true, that unless there's no magic words that need to be used in a situation like this, and that's because there is a vehicle for individuals to raise claims and vindicate the interests the statute in Congress has provided for. [00:04:03] Speaker 04: So the inference here is that the organizations have no claim unless and until [00:04:08] Speaker 02: there's something in the statute that suggests Congress intended them to have a claim so can I just ask about the individuals if we start just put the organizations aside for a second with the individuals. [00:04:20] Speaker 02: Given the Supreme Court's recent decision and the reasons of the University of California case. [00:04:25] Speaker 02: What's the argument that 1252B9, which is the main provision you rely on, I know you have some other ones too, but 1252B9 appears to be the main focal point of the submission. [00:04:36] Speaker 02: What's the argument in light of the Supreme Court's decision and the Regents case, which also involves some individuals at least, that even though that provision didn't preclude review in that case, it does preclude review here? [00:04:48] Speaker 04: Yes, Your Honor. [00:04:49] Speaker 04: Actually, I think Regents is [00:04:50] Speaker 04: easily distinguishable. [00:04:51] Speaker 04: And Regents doesn't really advance the ball on this any more than Justice Toledo's plurality in Jennings v. Rodriguez did, which is what the parties argued about in district court and in their first submission before this court, before Regents was issued. [00:05:03] Speaker 04: But Regents involved a facial challenge to the secretary's decision to rescind DACA. [00:05:10] Speaker 04: And DACA is a separate benefit that provides work authorization and it's basically non-enforcement against a class of individuals. [00:05:17] Speaker 04: that is issued before any removal proceeding ever occurs. [00:05:20] Speaker 04: And it's not something that is provided for by statute or regulation that can be litigated in the removal proceeding. [00:05:25] Speaker 04: So once your DACA is rescinded, that's not something you litigate in the removal proceeding. [00:05:30] Speaker 04: And I think the key language in regents, which didn't purport to be a all-encompassing analysis of 1252, because it wasn't the focus of the decision, but it says, quote, the process by which removability will be determined, quote, that's one of the at least three categories of things [00:05:46] Speaker 04: that are channeled into removal proceedings. [00:05:49] Speaker 04: And here, while plaintiffs say both individuals and organizations are not challenging final orders of removal, and in a technical sense, that's true, they are challenging the rule of asylum eligibility that asylum is relief from removal. [00:06:02] Speaker 04: So they are challenging the rule. [00:06:04] Speaker 02: But what the Supreme Court said in that case is, and it's certainly not the last paragraph, the last sentence of the paragraph that discusses B9, and it's certainly not a bar where as here the parties are not challenging any removal proceedings. [00:06:16] Speaker 02: And here, I don't understand the plaintiffs to be challenging removal proceedings. [00:06:20] Speaker 02: It's true. [00:06:21] Speaker 02: I take your point that the challenge can be raised in the context of a removal proceeding. [00:06:26] Speaker 02: That, I think, is true. [00:06:27] Speaker 02: If somebody is subject to removal, and then they seek asylum, and then they face the ineligibility bar that emanates from the rule, they could raise the challenge there. [00:06:37] Speaker 02: But they're not challenging removal proceedings as such. [00:06:40] Speaker 02: they're challenging the ineligibility that comes from the rule combined with the president's action. [00:06:46] Speaker 02: And so it seems like it fits within that sentence, the argument would be, that B9 doesn't pose a bar because there's not a challenge to removal proceedings, as evidenced by, for example, somebody who would seek affirmative asylum and wouldn't be part of a removal proceeding, but would still be subject to the ineligibility bar. [00:07:04] Speaker 04: So, responses to that. [00:07:06] Speaker 04: Your honor, first on the asylum point, there's affirmative asylum point there's nobody in this case who has standing to litigate that, but it wouldn't be a different case, I mean it would still be the same challenge. [00:07:16] Speaker 04: Well, here I think I refer the court to this is in our papers the seven circuits decision into call from 2018. [00:07:23] Speaker 04: It's true that an individual who has an affirmative claim for asylum initially doesn't go before the immigration courts. [00:07:29] Speaker 04: But if that claim is denied, they then go before the immigration courts because the regulation provides that they are then subject to removal and their issue to notice to appear. [00:07:37] Speaker 04: And in the call, the court said, well, look, because that option remains available, that's where the claim has to be litigated. [00:07:43] Speaker 04: And it may be that the government doesn't ever place the individual in removal proceedings. [00:07:47] Speaker 04: That's a separate issue. [00:07:48] Speaker 04: That's not this case. [00:07:49] Speaker 04: And the court did address that there. [00:07:51] Speaker 04: It's not jurisdictional at that point. [00:07:53] Speaker 04: It's a non-final agency decision, interlocutory in nature, that then can be adjudicated finally in the removal proceeding. [00:08:01] Speaker 02: So if we had a case that involved somebody who sought affirmative asylum and who wasn't subject to removal of proceedings, and we don't know whether [00:08:09] Speaker 02: there would be a removal proceeding at the end of the day because, as you say, it's up to the government to decide whether to initiate one. [00:08:15] Speaker 02: Maybe they're even subject to DACA, and it hasn't been validly rescinded at the time. [00:08:19] Speaker 02: But let's just suppose you have one. [00:08:20] Speaker 02: Would you still say that B9 poses a bar? [00:08:23] Speaker 04: So a couple of responses to that, too, although this wasn't [00:08:27] Speaker 04: We didn't brief this in our briefs, but to answer your question. [00:08:30] Speaker 04: So first, we're not arguing benign in that context. [00:08:32] Speaker 04: In the affirmative asylum case, we would be arguing finality and rightness sort of issues. [00:08:37] Speaker 04: We would be arguing, and that's what the Seventh Circuit relied on, that the individual can still litigate this affirmative asylum claim or challenge the denial of it, I should say, including challenges to the rule on which that denial was based in the removal proceeding. [00:08:50] Speaker 04: But I do think there's a line of cases, it's not briefed here, that provides that if there's no way to get into a removal proceeding, then you do have final agency action. [00:08:59] Speaker 04: And in that potential situation, you might have a claim in district court, but none of the individual plaintiffs fit that situation here. [00:09:07] Speaker 04: And so there's a disconnect between the district court's reliance on the possibility that an individual may have an affirmative asylum claim. [00:09:15] Speaker 04: and its conclusion that then that means these individuals who are all indisputably in removal proceedings at the time the court issues its decision, they also don't have to raise their claims. [00:09:25] Speaker 06: Where are the removal proceedings now? [00:09:28] Speaker 06: Is everything on hold because of the nice circuit? [00:09:33] Speaker 04: No, Your Honor. [00:09:34] Speaker 04: My understanding [00:09:36] Speaker 04: So the rule just was enjoined and that was affirmed in the Ninth Circuit. [00:09:39] Speaker 04: So that means this particular rule cannot be applied so long as that injunction is in place to these particular individuals or anyone for that matter in removal proceedings. [00:09:48] Speaker 04: But the proceedings are ongoing. [00:09:50] Speaker 04: So a number of individuals have been granted asylum. [00:09:52] Speaker 04: Their claims are moved at this point. [00:09:53] Speaker 04: They have no real reason to challenge the rule anymore. [00:09:56] Speaker 04: And then the majority of the plaintiffs are still in removal proceedings and they remain ongoing. [00:10:01] Speaker 06: They've all, I'm not really clear about this, but in these removal proceedings, has the issue whether these particular individuals are eligible for asylum, has that come up? [00:10:17] Speaker 04: It has. [00:10:18] Speaker 04: They've all raised, many of them have raised defensive asylum claims as a defense to removal. [00:10:22] Speaker 04: But since the rule has been enjoined by the Ninth Circuit or that injunction has been affirmed by the Ninth Circuit nationwide, this rule cannot be applied to them. [00:10:31] Speaker 04: However, yeah. [00:10:32] Speaker 06: In other words, they're, they're eligible. [00:10:35] Speaker 06: They're not ineligible because the rule has been enjoined. [00:10:39] Speaker 06: So my, what I'm getting at is have, have the immigrant, it's the immigration judges who make these decisions. [00:10:46] Speaker 04: Is that right? [00:10:46] Speaker 04: Initially the immigration judge. [00:10:48] Speaker 04: And then depending on what happens, it's appealed to the board. [00:10:51] Speaker 06: With respect to all of the, the, the plaintiffs, other than the ones who've already gotten asylum. [00:10:56] Speaker 06: Has there been any judgment by the immigration judges about whether they are entitled, whether they qualify for asylum? [00:11:07] Speaker 04: Yes, Your Honor. [00:11:08] Speaker 04: So not based on the rule, but three of our reply brief, three individuals had been found to warrant the grant of asylum and had received asylum. [00:11:16] Speaker 04: What about the others? [00:11:21] Speaker 04: So far as I'm aware, they have not yet been [00:11:23] Speaker 04: granted asylum, it may have been denied on other grounds and the proceedings are still ongoing on that basis. [00:11:28] Speaker 04: So they would take an appeal up to the board of immigration appeals. [00:11:30] Speaker 04: And then if they're unsatisfied with the result there, they would go up to the relevant court of appeals. [00:11:35] Speaker 04: But I think on that point, even though they're not able or not necessarily directly challenging the rule right now in their proceedings, I think the teachings of the cases that we cite in our brief and the lesson here is they can raise that in the court of appeals because they have [00:11:50] Speaker 04: litigating their asylum claims, this would be relevant to their asylum claims. [00:11:53] Speaker 04: So if ever the rule is operative, again, they can raise in the first instance to the Court of Appeals a challenge on the merits on the legality of the rule, even if the immigration judge or the board cannot set it aside on their own. [00:12:06] Speaker 06: So is this actually an exhaustion case? [00:12:12] Speaker 04: Yes, Your Honor, that's the government's position. [00:12:14] Speaker 04: Because they are in removal proceedings now, they have to raise all their claims relevant to their removal in those proceedings. [00:12:20] Speaker 04: And there's a statute, Section 1252D. [00:12:21] Speaker 06: Are you familiar with our decision in a case called Avocados Plus? [00:12:28] Speaker 04: I apologize, I don't believe I am. [00:12:30] Speaker 06: Where we analyzed, judge made, and the other is jurisdictional. [00:12:39] Speaker 06: And is 12, what is it, 1252 or 92, is that jurisdictional or is exhaustion judge made or jurisdictional? [00:12:52] Speaker 04: So that's jurisdictional by statute. [00:12:54] Speaker 04: It's a mandatory exhaustion provision. [00:12:56] Speaker 04: We cite a number of cases from other circuits addressing that. [00:12:59] Speaker 04: I don't think this court has had the opportunity to specifically address 1252D. [00:13:02] Speaker 04: These cases are rare in this jurisdiction. [00:13:05] Speaker 04: but it's mandatory, it's a mandatory exhaustion requirement. [00:13:08] Speaker 04: And so 1252B9 plus D channel everything up on appeal. [00:13:13] Speaker 04: And if you don't raise the claim in that proceeding, you cannot raise it in the petition for review. [00:13:17] Speaker 04: We do cite a case. [00:13:19] Speaker 06: Isn't there a provision in 1252 that actually talks about exhaustion? [00:13:26] Speaker 04: Yes, Your Honor, that's 1252B. [00:13:27] Speaker 04: 1252B says you must raise your claims first in the proceeding and then [00:13:33] Speaker 04: following that on the court of appeals. [00:13:35] Speaker 04: So there's no, any way you look at it, you don't get into district court, particularly as an individual challenging your asylum determination. [00:13:43] Speaker 04: I am running short on time. [00:13:45] Speaker 04: I do want to touch briefly on a couple of other issues, unless there are other questions on this particular- I have one quick one and we'll let you touch on the other issues too. [00:13:54] Speaker 02: Thank you, your honor. [00:13:56] Speaker 02: For the individuals who've been granted asylum, if you win ultimately at the end of the day on the merits, [00:14:04] Speaker 02: then are they at risk? [00:14:08] Speaker 04: I think that depends at what stage their proceedings are in. [00:14:12] Speaker 04: If their proceedings are over and done, I think they're fine. [00:14:15] Speaker 04: If their proceedings are ongoing, so if no decision has been rendered yet on their case, then I think under general retroactivity rules, this rule can be applied to them in their proceedings because the proceedings are not final. [00:14:29] Speaker 04: But if the proceedings are final, I think they're fine. [00:14:32] Speaker 04: That's my understanding of how those cases work at least. [00:14:35] Speaker 06: Yeah, I was thinking of 12. [00:14:36] Speaker 06: I was thinking of 1252 D, which says a court may review a final order of removal only if the alien has exhausted all administrative remedies. [00:14:50] Speaker 04: Right. [00:14:51] Speaker 04: Yes, Judge Randolph, that's the provision I was referring to. [00:14:54] Speaker 04: Oh, I thought you said B. OK, well, B9 B9 zips up in the words of the Supreme Court in Reno, all the [00:15:02] Speaker 04: issues related to that proceeding into that one petition for review. [00:15:06] Speaker 04: And unless and until you go through that process, you don't have any forum in federal courts. [00:15:11] Speaker 06: So if in these removal proceedings, there's final orders of removal and the aliens did not raise the defense of asylum, then they wouldn't be entitled to raise it in court. [00:15:27] Speaker 06: Is that right? [00:15:29] Speaker 04: I think that's right, Your Honor, but I think every single one of these individuals, the name plaintiffs in the case are raising asylum claims. [00:15:35] Speaker 04: So this is not a situation where they're going to be blindsided by a ruling saying you should have done that. [00:15:40] Speaker 04: They've all raised asylum claims. [00:15:42] Speaker 06: What I'm getting at is it wasn't optional. [00:15:45] Speaker 06: They had to raise it in the removal proceedings so they would lose it in response to judicial review of an order removing them, right? [00:15:56] Speaker 04: Yes, Your Honor, that's correct. [00:15:57] Speaker 04: So any removal related issue, including relief from removal, which asylum is, would have to be raised first in those proceedings for these individuals. [00:16:05] Speaker 04: And even without the jurisdictional exhaustion requirement, I mean, it's just odd to be in this posture where a district court is litigating, parties are litigating in district court while the individuals are also in removal proceedings at the same time. [00:16:18] Speaker 04: That's precisely what the Congress sought to eliminate in 1996 and 2005 with the section 1252 revisions on claim channel. [00:16:26] Speaker 04: I am over time. [00:16:28] Speaker 04: I do. [00:16:28] Speaker 06: I have another question. [00:16:30] Speaker 06: I have another question. [00:16:32] Speaker 06: If if an individual, let's suppose that the rule is upheld and the proclamation, whatever it is at the moment, is in force and an individual crosses the border and is therefore and not at a point of entry, but is therefore declared ineligible for asylum. [00:16:52] Speaker 06: Does the attorney general or the secretary [00:16:55] Speaker 06: nevertheless have discretion to allow that individual to remain in the United States? [00:17:02] Speaker 04: Not based on asylum, not on a finding of asylum, but the rule does not eliminate other forms of protection inconsistent with international treaty obligations that the Congress has legislated in 1231 and 1252 and other provisions. [00:17:16] Speaker 06: What I'm getting at is I'm wondering if there's any function that is served by number one, [00:17:25] Speaker 06: having giving an alien the right to apply for asylum and then number two, because of the operation of the rule and the proclamation making the alien ineligible. [00:17:37] Speaker 06: Is the application for asylum does that serve any function then. [00:17:44] Speaker 04: Yes, I think it does. [00:17:46] Speaker 04: So a couple things here. [00:17:47] Speaker 04: First, this isn't just anyone who crosses the border. [00:17:51] Speaker 04: This is if there's a proclamation in place. [00:17:53] Speaker 04: And the proclamation, as we lay out in the brief in more detail, spoke to a specific point in time when there was just a mass of individuals crossing the southern border. [00:18:01] Speaker 04: The president and the administration thought there was an immigration crisis. [00:18:05] Speaker 04: And that's what this was responding to. [00:18:06] Speaker 04: Of course, those are facts from 2018 at this point, so two years ago. [00:18:09] Speaker 04: But the application itself, an individual doesn't just apply for asylum. [00:18:13] Speaker 04: When they seek protection from removal, they apply for asylum, withholding, relief under the convention against torture. [00:18:20] Speaker 04: So those three types of relief. [00:18:21] Speaker 04: And so even if they're ineligible for asylum, they're still applying for withholding of removal and for cap protection. [00:18:26] Speaker 04: And it's my understanding that most, if not all, of the individuals in this case are seeking such relief as well. [00:18:34] Speaker 04: If your honor is asking what's the point of applying for asylum if you're categorically barred from being eligible for it, I think that's sort of the dispute within the panel in the Ninth Circuit in the East Bay case. [00:18:46] Speaker 04: You apply just because you are ineligible for asylum does not mean you're ineligible for those other forms of relief, but also the statute itself is structured that way. [00:18:54] Speaker 04: Many people are entitled to apply for asylum, including [00:18:58] Speaker 04: the six categories of individuals under 1158B2, for example, felons, terrorists, political crimes, a number of other categories. [00:19:10] Speaker 04: They all can apply, but they know with a certainty that they're not going to be granted asylum because the Congress has taken away the discretion of the attorney general to grant asylum in those circumstances. [00:19:21] Speaker 04: And this is what the rule does here as well, in a much more narrow and cabin specific point in time. [00:19:26] Speaker 04: in 2018, November, where there's a record showing a uptick, a large uptick of illegal crossings at the southern border. [00:19:34] Speaker 02: But what seems different about this is it's of course true that there can be people who are ineligible even if they're allowed to apply. [00:19:41] Speaker 02: That is true of any dynamic that works this way. [00:19:43] Speaker 02: But what seems different about this is that the statute that spells out who applies specifically designates one consideration as not diminishing the ability to apply. [00:19:54] Speaker 02: And that's if you [00:19:56] Speaker 02: enter at a designated port of arrival, or if you've been interdicted in international United States waters, it specifically says that those individuals can apply regardless of that fact. [00:20:07] Speaker 02: And then when the categorical rule of exclusion relates only to that fact, that's what makes this dynamic different than the other examples that you're identifying. [00:20:16] Speaker 04: So I take the point. [00:20:19] Speaker 04: And I understand the question, but I think we respectfully disagree with that. [00:20:23] Speaker 04: I think it's instructive to look back at what preceded this statute in 1996. [00:20:27] Speaker 04: The asylum statute in the Refugee Act in 1980 was similar. [00:20:31] Speaker 04: It provided that individuals may apply for asylum irrespective of their status. [00:20:35] Speaker 04: And then the board in 1987 in a case, a matter of Pula, addresses what that really means. [00:20:41] Speaker 04: And what that means is [00:20:42] Speaker 04: you can apply for asylum regardless of whether you cross at a court of entry or illegally between ports of entry, or if the United States brings you here against your will or interdicts you on the high seas. [00:20:52] Speaker 04: But none of that means you're eligible. [00:20:54] Speaker 04: And so, yes, all that means is you can apply. [00:20:58] Speaker 04: And I think the other thing is, if you look at what Pula was doing, Pula responded or pulled back, I should say, a decision matter of Salim from 1982, which did provide for at least five years until Pula, that manner of entry can be an outcome-determinative [00:21:12] Speaker 04: a dispositive factor in an asylum determination. [00:21:15] Speaker 04: And that was five years and that statute allowed for it then. [00:21:19] Speaker 04: So the statute has the board reading it two different ways. [00:21:22] Speaker 04: And I don't think the 1996 amendments changed that in any fundamental way. [00:21:25] Speaker 04: What did 1996 act says is okay, port of entry, not port of entry, either way you can apply, but that doesn't promise you anything other than potentially ultimate denial. [00:21:35] Speaker 04: And so the district court acknowledged that the government could do this case by case. [00:21:39] Speaker 04: It went so far as to acknowledge Pula allowing for that. [00:21:42] Speaker 04: But then it just says you can't make that a categorical denial. [00:21:46] Speaker 04: And I think the trouble with that from the government's perspective is the regulation 1158B2C does speak of in terms of regulations and it doesn't say anything about it has to be case by case or not. [00:21:57] Speaker 04: There's nothing in the statute explicitly that says [00:21:59] Speaker 04: Every asylum case must be adjudicated case by case in the specific facts of that case. [00:22:03] Speaker 02: Suppose there's a rule that says, nobody who applies for asylum is eligible for asylum for five years. [00:22:14] Speaker 02: Would you say, well, yes, you got to apply. [00:22:18] Speaker 02: And yes, the statute allows people to apply for asylum. [00:22:21] Speaker 02: And the fact that nobody gets it, that's whether you're going to get it ultimately. [00:22:27] Speaker 02: It doesn't have to do with whether you can apply for it. [00:22:30] Speaker 04: So let me quibble with the premise of the question just a little bit, Judge Srinivasan, because we do have a provision 1158A2B in the application section of the statute that says you have to apply within one year. [00:22:44] Speaker 04: And we have another provision, A2C, which says if you've previously applied and it was denied, you cannot apply for asylum again. [00:22:51] Speaker 04: And then there's an exception for changed circumstances. [00:22:54] Speaker 04: But the statute does allow for that. [00:22:56] Speaker 04: So I think the question in your hypothetical would be is a rule like that that says, okay, you can't apply for another five years. [00:23:03] Speaker 04: Is that consistent with the statute? [00:23:05] Speaker 04: And arguably it would be because 1158 HUC says if you've already applied and been denied once, you've lost your shot and you don't get to apply again. [00:23:13] Speaker 02: Well, I'm talking about first time applicants too. [00:23:16] Speaker 02: I'm not talking about somebody who already applied. [00:23:17] Speaker 02: I'm just saying if we just cut off [00:23:21] Speaker 02: eligibility at all and just say across the board, nobody's eligible for asylum. [00:23:25] Speaker 02: I mean, in theory, one could say, well, you still get to apply. [00:23:28] Speaker 02: It's just that, and the statute does allow people to apply for asylum, but if the statute doesn't say that anybody who applies actually can get asylum, so we're just gonna cut off eligibility for asylum, the argument would be, and there would be some metaphysical distinction between whether you were eligible to apply and whether you were eligible to receive. [00:23:45] Speaker 02: But the statute presupposes that people can apply for asylum. [00:23:49] Speaker 02: And one category that specifically can apply is people who arrive outside of a port of entry. [00:23:58] Speaker 04: That's right, Your Honor. [00:23:59] Speaker 04: They can't apply. [00:24:00] Speaker 04: But again, I go back to the statute and the discussion I just had with Judge Randolph. [00:24:03] Speaker 04: There are six categories that are all individuals who can apply. [00:24:08] Speaker 04: All those terrorists, particularly serious crimes, those bars, they can all apply. [00:24:13] Speaker 04: But they're categorically barred. [00:24:16] Speaker 04: at the outset, but they can still apply. [00:24:18] Speaker 04: And there's a reason for them to do that. [00:24:19] Speaker 04: They can seek other forms of release, like withholding or cat release. [00:24:23] Speaker 04: And also, I don't know that the statute is as crystal clear as the district court thought on this matter of entry application versus eligibility. [00:24:31] Speaker 04: There's another provision, AUSC 1231A5, which provides that if you cross the border between ports of entry, so illegal reentry after having been removed, you are categorically barred from asylum. [00:24:44] Speaker 04: clear to me that Congress specifically said anyone, regardless of how they cross the border illegally, shall be eligible for asylum. [00:24:51] Speaker 04: And we're conflating eligibility and application here for purposes of your question, Your Honor. [00:24:56] Speaker 04: But Congress, in fact, said the opposite in that provision. [00:24:59] Speaker 04: It said, cross the border illegally, you are excluded from asylum. [00:25:03] Speaker 04: So the statute doesn't seem to be unambiguous on that point. [00:25:07] Speaker 04: And if there's a provision that provides the government authority to [00:25:12] Speaker 04: render classes of aliens categorically ineligible for asylum, 1158B2C. [00:25:17] Speaker 04: Unless there's something explicit in the statute that says matter of entry cannot be a basis for ineligibility, then I don't see the inconsistency. [00:25:23] Speaker 04: And we know matter of entry cannot be a basis for ineligibility because Congress is legislating against the backdrop of 30 years of administrative law in these cases. [00:25:34] Speaker 04: And we have a matter of Pula which says, [00:25:36] Speaker 04: weigh it this way, and we have Matt or Selim saying, no, weigh it as an outcome-determinative point, but in both cases, it's a relevant criteria. [00:25:43] Speaker 02: Can I just ask one question based on one thing you said? [00:25:46] Speaker 02: You said the statue's not unambiguous, and I noticed that the government didn't ask for Chevron deference, which if you thought the statue was unambiguous or was not unambiguous, then Chevron could potentially get you somewhere. [00:26:00] Speaker 02: The Ninth Circuit did extend Chevron deference. [00:26:03] Speaker 02: And I'm just wondering, does the government think that the Ninth Circuit was wrong to do that? [00:26:07] Speaker 02: Or does the government have a view on that? [00:26:09] Speaker 04: So you're right. [00:26:11] Speaker 04: We didn't explicitly ask for Chevron deference in our briefing. [00:26:14] Speaker 04: So I can't stand here before you or sit here before you today and say, actually, we want Chevron deference. [00:26:20] Speaker 04: I don't think we can waive it under this court's precedence. [00:26:23] Speaker 04: I think that's not something that the government, the DOJ, the Department of Justice can do. [00:26:28] Speaker 04: If Congress, if it's unambiguous, it's unambiguous. [00:26:30] Speaker 04: If it is ambiguous, it is ambiguous. [00:26:32] Speaker 04: All I meant to say is the statute, I think our point, our lead point is the statute doesn't explicitly say a matter of entry can never be a bar to eligibility for asylum. [00:26:43] Speaker 04: And I think we don't need deference to win on that point, but I don't think we can waive the deference argument if Chevron does apply. [00:26:51] Speaker 06: I have a couple more questions. [00:26:55] Speaker 06: First of all, is eligibility for asylum a defense to a criminal prosecution for illegal entry? [00:27:06] Speaker 04: It is not. [00:27:07] Speaker 06: It's not. [00:27:09] Speaker 06: Is it accurate that the initial entry by an alien from other than a port of entry is a misdemeanor? [00:27:21] Speaker 06: punishable by six months in prison. [00:27:25] Speaker 04: You can be charged for that, for your first entry. [00:27:27] Speaker 06: And if the same alien tries to enter again after being removed, it becomes a felony. [00:27:35] Speaker 04: Is that true? [00:27:36] Speaker 04: That's correct, Your Honor. [00:27:37] Speaker 06: OK. [00:27:39] Speaker 06: If you take this scheme, the rule plus the proclamation and apply it to the second category of illegal entry, [00:27:50] Speaker 06: the felony category, because it's two years imprisonment, then there's, I don't think there's any argument that that would be invalid. [00:28:02] Speaker 04: I would agree. [00:28:04] Speaker 06: Okay. [00:28:04] Speaker 06: Are you familiar with the Supreme court's opinion in Reno versus Flores? [00:28:11] Speaker 04: The 1993 case, your honor. [00:28:13] Speaker 06: It was an immigration case by a justice Scalia. [00:28:17] Speaker 06: and he held for the court unanimously the following, that when a statute is, or when a regulation is claimed to be in violation of a statute, that the Salerno rule applies. [00:28:34] Speaker 06: You know what the Salerno rule is? [00:28:36] Speaker 06: Yes, Your Honor. [00:28:37] Speaker 06: I think I know where you're going. [00:28:38] Speaker 06: Okay. [00:28:40] Speaker 06: Which means that with respect to the [00:28:47] Speaker 06: for two-time offenders, that if that is a valid application of this regulation to those people, then the regulation, because it's only a facial attack, not as applied, and the petitioners and plaintiffs say that over and over again, that means that the regulation, we have to uphold that regulation. [00:29:10] Speaker 04: I would agree with that, Judge Randolph. [00:29:13] Speaker 04: I would admit we did not advance that argument in our briefing, but let me take it in a slightly different direction, an argument we did advance in our briefing. [00:29:19] Speaker 04: That is exactly why these claims are channeled into petitions for review raised by individual aliens in those proceedings. [00:29:27] Speaker 04: It could be that the rule is not facially invalid, but as applied to an individual in a particular context in this particular place and time, may be invalid on the facts of those cases. [00:29:36] Speaker 04: But here, I think it's instructive. [00:29:38] Speaker 04: Plaintiffs don't advance a due process argument. [00:29:40] Speaker 04: They don't advance an equal protection argument. [00:29:42] Speaker 04: It's a straight up statutory argument. [00:29:44] Speaker 04: And I take the point, and I think we certainly agree with it, because they raise that as a facial challenge here. [00:29:51] Speaker 04: Because it can be applied lawfully to a large number of individuals, it can't be facially invalid. [00:29:55] Speaker 04: And so that, again, just proves the reason why this has to be channeled through the petition for a due process. [00:30:00] Speaker 04: Because there could be an individual who does have a viable or colorable due process or other constitutional claim. [00:30:06] Speaker 04: And that claim is preserved and can be raised in the petition for review process. [00:30:12] Speaker 04: I see I'm way over, so I'm happy to stop whenever. [00:30:17] Speaker 04: But I do have one other point I did want to make on the statute, and it goes to the zone of interest point, I think. [00:30:23] Speaker 02: Go ahead and make that point, and then we'll hit it from the other side. [00:30:27] Speaker 04: Because even recognizing that even if the individuals claims are channeled, they're still the organizations. [00:30:33] Speaker 04: We lay out in our briefing why we don't think they have standing but putting aside the standing point just the zone of interest point I think is an important one. [00:30:40] Speaker 04: It's a low test but it's not a toothless test and I think what the district court did here, it relied on 1158 D4. [00:30:48] Speaker 04: And plaintiffs repeat this argument on appeal and before provides that organizations are the Attorney General has an obligation to inform individuals in proceeding seeking asylum that they may be represented by counsel and to refer them to organizations whose job it is to or mission is to represent these individuals in proceedings and that provision cannot I think show that the [00:31:09] Speaker 04: that Congress intended to protect the interests of organizations to represent third party aliens, because there is a provision G7 later in the statute that specifically says that nothing in this subsection shall be construed to create any substantive or procedural right or benefit legally enforceable by any party against the United States. [00:31:28] Speaker 04: So even if we get past the jurisdictional and standing points, I think the statute pretty clearly shows Congress did not have an intent to provide a protectable interest under this statute to organizations. [00:31:41] Speaker 02: So one final question on that. [00:31:43] Speaker 02: If the individuals get past the, and you'll resist the premise, but just bear with me. [00:31:49] Speaker 02: If the individuals get past the jurisdictional bars that you've asserted and they have standing and you don't contest the individual standing, [00:31:56] Speaker 02: and they fall within the zone of interest. [00:31:58] Speaker 02: Does it matter if the organizations don't? [00:32:03] Speaker 04: No. [00:32:03] Speaker 04: No, I don't think it does. [00:32:05] Speaker 04: I think this court's case is that. [00:32:06] Speaker 04: I'm just relying on this court's cases. [00:32:08] Speaker 04: If you have one party with statutory jurisdiction and standing, then I think this court's case is enough. [00:32:14] Speaker 02: OK. [00:32:16] Speaker 02: Thank you, Mr. Rivani. [00:32:17] Speaker 02: If my colleagues don't have further questions for you at this time, we'll give you some time for rebuttal. [00:32:20] Speaker 02: We'll hear from Apple East Council, Ms. [00:32:23] Speaker 02: Saharia. [00:32:25] Speaker 01: Good morning, and may it please the court, Amy Saharia of Liamson Connolly for the OA plaintiffs. [00:32:31] Speaker 01: With the court's leave, plaintiffs have divided argument time today. [00:32:34] Speaker 01: I'll address the issues related to statutory jurisdiction with respect to the individuals. [00:32:39] Speaker 01: Mr. Reich on behalf of the SMSR plaintiffs will address the organization's specific issues and then the merits. [00:32:47] Speaker 01: Plaintiffs' claims here are quintessential APA claims arising from agency rulemaking that are within the court's federal question jurisdiction. [00:32:55] Speaker 01: The government's argument that section 1252B9 strips the court of jurisdiction over these claims is wrong for the simple reason that the claims do not arise from removal proceedings. [00:33:06] Speaker 01: In the alternative, if the court were to conclude that the claims do arise from removal proceedings, at least some of the plaintiffs, they arose from expedited removal proceedings and the court would have jurisdiction under subsection E3. [00:33:19] Speaker 01: Now, let me start, if I may, with section 1252B9. [00:33:26] Speaker 01: I heard the government describe section 1252 as a comprehensive review scheme. [00:33:31] Speaker 01: In fact, that's not the way the Supreme Court has described section 1252B9. [00:33:36] Speaker 01: In the most recent DACA decision, the court described this as a targeted narrow provision. [00:33:42] Speaker 01: And it is part of a provision, section 1252, that both the Supreme Court and this court consistently have read against the backdrop of the presumption in favor of judicial review. [00:33:54] Speaker 01: We know from the Jennings plurality opinion, which I think the court and DACA largely adopted, that the relevant question under section 1252B9 is whether the legal question presented by the case arises from an action taken to remove an individual or from a removal proceeding. [00:34:15] Speaker 01: And the focus is on the legal question. [00:34:17] Speaker 01: Justice Alito emphasized that in footnote three of his opinion. [00:34:21] Speaker 01: The legal questions here [00:34:23] Speaker 01: arise from agency rulemaking that renders a class of individuals categorically ineligible for asylum, no matter how they apply, whether they apply affirmatively outside removal proceedings or whether they apply defensively within removal proceedings. [00:34:40] Speaker 01: And plaintiff's claims here existed before and independent of their removal proceedings. [00:34:47] Speaker 01: Their claims existed once they crossed the border with the intent to apply for asylum [00:34:52] Speaker 01: and were subject to a rule that rendered them categorically ineligible to obtain asylum. [00:34:59] Speaker 01: The government focuses on the fact that none of the plaintiffs in this case applied affirmatively, and that is for the simple reason that they were apprehended before they had the opportunity to do so. [00:35:14] Speaker 01: But the fact that that apprehension forced them to raise their claims defensively [00:35:20] Speaker 01: changes nothing about the legal nature of those claims. [00:35:24] Speaker 01: The legal claims are the same for our plaintiffs and for individuals who would have applied affirmatively for asylum after crossing the border. [00:35:33] Speaker 01: And that is something that happens with some frequency. [00:35:38] Speaker 01: If someone is not apprehended and enters the country outside a port of entry, their mechanism to obtain asylum is to apply affirmatively. [00:35:48] Speaker 02: So can you address the argument that was made that if you have an affirmative application for asylum, where the person is not yet in removal proceedings, that there's either an exhaustion or ripeness problem with that? [00:36:00] Speaker 01: Sure. [00:36:01] Speaker 01: So if someone is not in removal proceedings and applies affirmatively for asylum, what happens when asylum is denied depends on their status. [00:36:11] Speaker 01: So if they are here unlawfully, then they would then [00:36:16] Speaker 01: likely be referred to immigration court where they could then re-raise the asylum claim. [00:36:23] Speaker 01: If they are here lawfully, then I agree with Mr. Uvani that there is not normally a mechanism for them to seek review of their individual determination because there's no final agency action. [00:36:36] Speaker 01: But I think that just illustrates why the government's position here cannot be correct because a plaintiff in that situation would have no mechanism [00:36:45] Speaker 01: to bring an APA claim challenging the validity of agency rulemaking. [00:36:51] Speaker 01: Again, a quintessential APA claim that would render that person categorically ineligible for asylum. [00:36:58] Speaker 01: And there would be no mechanism for them to bring that claim, which is exactly the kind of circumstance that courts have looked to, for instance, in Jennings and McNary to conclude that this is not the kind of claim that Congress intended to channel through Section 1252 [00:37:15] Speaker 01: benign. [00:37:16] Speaker 06: On the other hand, your your claim is a facial challenge. [00:37:20] Speaker 06: So it includes that's a subset of the individuals who are affected by the rule. [00:37:28] Speaker 06: But what about all the others? [00:37:30] Speaker 06: And what about the felons? [00:37:31] Speaker 06: What about all of the the other various people who are excludable? [00:37:39] Speaker 01: Well, I guess I'm not understanding the question as it [00:37:43] Speaker 01: relates as it relates to felons. [00:37:45] Speaker 01: Those people were already ineligible for asylum. [00:37:49] Speaker 01: Um, but the claim here, it is a facial claim. [00:37:51] Speaker 06: They can apply, they can apply for asylum, correct? [00:37:56] Speaker 01: Uh, they can apply for asylum. [00:37:57] Speaker 01: I think that the, as judge by the explain in the ninth circuit proceedings, the distinction between applying for asylum and eligibility for asylum is really a hollow distinction. [00:38:07] Speaker 01: Um, and if I may, I'd like to refer to refer [00:38:10] Speaker 01: the merits questions to Mr. Rice, who is prepared to address the merits questions. [00:38:15] Speaker 01: But with respect to statutory jurisdiction, these people, all of these plaintiffs were categorically ineligible for asylum and otherwise would have been eligible. [00:38:26] Speaker 01: None of the plaintiffs are felons, for instance. [00:38:29] Speaker 01: And so this is a facial challenge to the rule brought under the APA. [00:38:35] Speaker 01: And again, it's a rule that would affect them whether or not they were ever in removal proceedings. [00:38:39] Speaker 01: That's why this case is very much like the DACA decision that Judge Srinivasan mentioned. [00:38:45] Speaker 01: Just like asylum, DACA status could be a defense to removal. [00:38:50] Speaker 01: In that case, the government argued that its rescission of DACA was the first step taken to remove these individuals. [00:38:58] Speaker 01: And so even though that issue perhaps might be adjudicated in some future removal proceeding, whether the rescission of DACA was lawful, the court nonetheless had no trouble [00:39:09] Speaker 01: holding that it did not fall within section 1252B9. [00:39:11] Speaker 02: I mean, I think you don't dispute the proposition that the claim that's being asserted here by your clients could be asserted in a removal proceeding. [00:39:22] Speaker 02: Your point is that even if it could be, it doesn't have to be. [00:39:25] Speaker 01: Exactly. [00:39:26] Speaker 01: I do think it would be quite difficult to assert this claim in a removal proceeding for two reasons. [00:39:32] Speaker 01: First of all, individual immigration judges don't themselves have authority to rule [00:39:38] Speaker 01: that agency rulemaking is invalid and contravention of the INA or not promulgated pursuant to notice and comment rulemaking. [00:39:46] Speaker 01: So I do think there's a question about whether these claims could even be adjudicated within the agency. [00:39:52] Speaker 06: That is not an argument against jurisdictional exhaustion. [00:39:57] Speaker 06: And that's the case I mentioned to counsel for the government. [00:40:00] Speaker 06: It's avocados plus that held that when there's jurisdictional exhaustion, even if the agency [00:40:07] Speaker 06: or whatever body within the agency has no authority to declare something unconstitutional or illegal, whatever, you still have to raise it. [00:40:16] Speaker 01: Well, it is one of the factors that courts look to under the Thunder Basin test. [00:40:21] Speaker 01: Now, it's not, which we don't think applies here, but it's not a dispositive factor, of course. [00:40:27] Speaker 01: I think the other relevant issue is Section 1252B4, which is part of the same statute, and Section 1252B4 [00:40:35] Speaker 01: limits a court of appeals on a petition for review to the record of the individual removal proceeding, which in an ordinary case would not include the record of agency rulemaking. [00:40:49] Speaker 01: Now, of course, there are procedures that require the government to come forward with that record in APA claims in the federal court, but the government has cited no requirement that would require the government to come forward with that record [00:41:04] Speaker 01: in individual immigration proceedings. [00:41:07] Speaker 01: The most it has offered is that these individual asylum applicants, the thousands of them, many of whom are pro se, could somehow agree with the government in the course of these immigration proceedings to get that record, to put it before the IJ as a formality since the IJ can't him or herself decide these APA claims so that it would be preserved for a court of appeals on a petition for review. [00:41:33] Speaker 01: The fact that Congress included that in Section 1252B4 is a very good indication that Congress did not intend for these kinds of classic APA claims to be adjudicated on a petition for review. [00:41:48] Speaker 01: I see I'm out of time. [00:41:49] Speaker 01: If the court has further questions, I'm happy to take them. [00:41:52] Speaker 01: Otherwise, I will pass the virtual podium on to Mr. Reich. [00:41:57] Speaker 02: Unless my colleagues have other questions, it doesn't sound like they do. [00:42:01] Speaker 02: Thank you, counsel. [00:42:02] Speaker 02: We'll hear from Mr. Reich. [00:42:04] Speaker 05: Good morning, Your Honor, and may it please the court. [00:42:05] Speaker 05: Mitchell Reich for the SMSR plaintiffs. [00:42:09] Speaker 05: Ms. [00:42:09] Speaker 05: Sahari was just discussing the reasons why we believe that the individual plaintiffs have properly invoked this court's jurisdiction. [00:42:15] Speaker 05: And before turning to the merits, I want to briefly discuss a separate and independent avenue for this court to review the plaintiff's claims. [00:42:22] Speaker 05: There are two organizational plaintiffs before this court, Raices and Care Coalition. [00:42:27] Speaker 05: that have submitted detailed and uncontested declarations explaining that the challenge rule will frustrate their ability to carry out their mission and require them to divert substantial resources in order to counteract that. [00:42:38] Speaker 02: Can I just ask you the threshold, the same question I asked Mr. Ravini, which is if the individuals do have standing and are within the zone of interest and the jurisdictional bars don't preclude them from going forward. [00:42:50] Speaker 02: And I know that the government disputes that, but I just want to just engage on the premise. [00:42:54] Speaker 02: If that's true, then does any of the points you're making about the organizations matter? [00:42:58] Speaker 05: No, these are two separate and completely independent avenues for this court's exercise jurisdiction as Judge Moss recognized if you found that we were correct on either one, you could reach the merits of the claim and the relief that the court would award would be exactly the same. [00:43:11] Speaker 05: And I want to discuss the organizations briefly because I think that the government's [00:43:15] Speaker 05: even if the court thought that the government's jurisdictional arguments had some merit with respect to the individuals, which for all the reasons Ms. [00:43:21] Speaker 05: Saharia laid out, we don't think they do. [00:43:23] Speaker 05: We don't think they have any merit with respect to the organizations. [00:43:26] Speaker 05: Judge Moss concluded that below. [00:43:28] Speaker 05: Judge Kelly concluded that in the closely related care coalition case. [00:43:31] Speaker 05: And indeed, in the district court, as noted in footnote six of the district court's opinion, [00:43:35] Speaker 05: The government didn't even argue the organizations were subject to the jurisdiction channeling scheme. [00:43:40] Speaker 05: And I think it's pretty obvious why that scheme, as the Supreme Court said in INS v. St. [00:43:44] Speaker 05: Cyr, is designed to consolidate and channel claims that arise in removal proceedings for review on an appeal from a final removal order. [00:43:54] Speaker 05: It's not a scheme to strip jurisdiction over any claims that arise outside removal. [00:43:59] Speaker 05: And I think Mr. Rouveni, in a sense, gave the game away when he acknowledged that this scheme [00:44:03] Speaker 05: would not preclude an individual alien from asserting a challenge to this rule if they pressed an affirmative asylum claim. [00:44:10] Speaker 05: He suggested there might be other finality and rightness problems, but he acknowledged that this jurisdiction channeling scheme wouldn't apply to that claim. [00:44:18] Speaker 05: And I think that's an acknowledgement. [00:44:19] Speaker 05: This is not a comprehensive scheme for reviewing certain legal questions. [00:44:23] Speaker 05: It's just a scheme for reviewing questions that arise in removal. [00:44:26] Speaker 05: So organizations whose claims don't even plausibly arise within the removal process, after all these organizations aren't themselves subject to removal, and their claims would exist even if no removal proceedings were ever brought. [00:44:38] Speaker 05: I think that demonstrates that their claims can't be precluded. [00:44:42] Speaker 05: And also note that Mr. Rivani said that there was no one before the court who could possibly assert the interests of persons filing affirmative asylum applications. [00:44:51] Speaker 05: That's not correct. [00:44:52] Speaker 05: RAICES in paragraph 29 of its declaration explains that it represents at least 100 applicants a year filing affirmative asylum applications. [00:45:00] Speaker 05: And all the harms identified in RAICES's and CARE Coalition's declarations that give them standing and place them within the zone of interest apply as to those individuals. [00:45:11] Speaker 05: This rule makes it substantially more difficult to counsel those individuals, to represent them in asylum proceedings. [00:45:17] Speaker 05: It would be more time consuming to represent them. [00:45:19] Speaker 05: They'd have to represent the children separately because they couldn't be derivative beneficiaries of their parents. [00:45:23] Speaker 05: And so even if no removal proceedings were ever brought against these organizations clients, they would still have these claims because they would still be harmed by the rule. [00:45:31] Speaker 05: And that is sufficient to conclude they're outside the jurisdiction channeling scheme. [00:45:35] Speaker 05: I'd also like to note as to zone of interest, Mr. Vaney suggested that these organizations don't have what he referred to as a cause of action under 1252. [00:45:44] Speaker 05: I think that's just a conceptual error. [00:45:46] Speaker 05: These organizations have a cause of action under the APA. [00:45:49] Speaker 05: They don't need to find a separate one under 1252. [00:45:52] Speaker 05: The only thing they need, or under 1158, all they need to show is that they're within the statutory zone of interest. [00:45:58] Speaker 05: And that permissive test, as Judge Moss explained, is easily satisfied here. [00:46:02] Speaker 05: The interests the organizations are asserting [00:46:04] Speaker 05: is the very interest the asylum laws protect. [00:46:07] Speaker 05: That is helping people file meritorious claims for asylum. [00:46:11] Speaker 05: They don't need to show that they themselves are the intended beneficiaries of the statute. [00:46:15] Speaker 05: That's the teaching of the Supreme Court's cases in Patchak and NCUA and many of this court's cases. [00:46:21] Speaker 05: And they don't need to show that Congress contemplated suits by these particular organizations. [00:46:26] Speaker 05: I think the fact, though, that Congress in 1158D4 specifically pointed to the organizations like these and made sure that asylum applicants could be represented by them just shows that the interests of the organizations are aligned with those of the asylum seekers, and that vaults them far beyond the threshold to fall within the zone of interest. [00:46:48] Speaker 05: Turning to the merits, this whole jurisdictional discussion, as the district court said, is a very long backstroke for a very short putt. [00:46:56] Speaker 06: The text of Section 1158A1 provides that any alien who enters the United States, whether or not- If that's the case, if that's the case, if the backstroke is too long for the short putt, the putt will be missed. [00:47:14] Speaker 06: I think, Judge Moss's point- Did the district court miss the putt? [00:47:17] Speaker 06: Of course, yeah. [00:47:21] Speaker 05: I think it's a clear shot from the statutory text to the result, which is that section 1158A1 says that any alien who enters the United States, whether or not a designated port of arrival and irrespective of their status, may apply for asylum. [00:47:35] Speaker 05: This rule says that an alien who enters the United States outside a designated port of arrival is ineligible for asylum. [00:47:41] Speaker 05: And I think Judge Randolph, your question hit on the central flaw in this rule is that it would deprive the rights to apply for asylum irrespective of status in 1158A functionally meaningless. [00:47:53] Speaker 05: It would have essentially write it out of the statute and under 1158B to C. Why? [00:47:59] Speaker 06: Why is it write it out of the statute? [00:48:01] Speaker 06: All the people that are coming through ports of entry are still eligible and they can apply. [00:48:08] Speaker 06: there are all kinds of barriers there's you know where people are declared ineligible aliens declared ineligible for a whole variety of reasons and have been for a couple hundred years see the Supreme Court's opinion in Kleine's versus Mandel and those people you can say well it's read out of the statute they all can apply but huge subsets of them are ineligible [00:48:34] Speaker 05: Yes, Your Honor. [00:48:35] Speaker 05: And our argument is not that the rights to apply guarantees eligibility. [00:48:38] Speaker 05: It's that the right to apply irrespective of status and whether or not you entered at a point of entry guarantees that you won't have an application denied on that exact characteristic. [00:48:48] Speaker 05: Terrorists, criminals, as Judge Bybee observed, there's no rights to apply irrespective of whether you're a terrorist or a criminal. [00:48:55] Speaker 05: So there's no conflict between the statutory rights and the eligibility bars for them. [00:48:59] Speaker 05: But there is a right to apply whether or not you entered [00:49:02] Speaker 06: Let me put the direct question to you. [00:49:07] Speaker 06: Take my hypothetical where an individual is swimming the Rio Grande for the second time and gets caught. [00:49:14] Speaker 06: And that person has committed under the statute, what is it, 1385, I forgot, has committed a felony. [00:49:23] Speaker 06: And what's the argument why that person is entitled to eligibility for asylum? [00:49:31] Speaker 05: That person might not be entitled to eligibility, but this rule, this rule of decision, as Judge Bybee put it, would still be unlawful as to them, because the characteristic that would be rendering them ineligible under this rule is their unlawful entry, entry outside of port of entry. [00:49:46] Speaker 05: The government might be able to deny them asylum on a separate basis, and that might be totally lawful. [00:49:52] Speaker 06: I'd also note that- But the felony is the entry beyond [00:49:58] Speaker 06: in a place other than a port of entry. [00:50:02] Speaker 06: That's the felony. [00:50:03] Speaker 06: Person's totally clean otherwise. [00:50:07] Speaker 05: Two points here. [00:50:08] Speaker 05: First of all, I don't think it's true that any alien who commits a felony is automatically ineligible for asylum. [00:50:13] Speaker 05: I think the provision you're pointing to is the one saying that someone who commits a serious crime is ineligible for asylum. [00:50:19] Speaker 05: And that's often a case by case determination. [00:50:21] Speaker 05: It wouldn't necessarily be the case. [00:50:23] Speaker 05: The unlawful entry even second time would [00:50:25] Speaker 05: render someone ineligible for asylum on that basis. [00:50:28] Speaker 05: But even if it did, the government could remove them because they committed a crime. [00:50:33] Speaker 05: They cannot remove, excuse me, could deny them eligibility because they committed a crime. [00:50:37] Speaker 06: Every person that enters the country in a place other than a port of entry is committing a crime, every single one. [00:50:48] Speaker 05: Yes, Your Honor, but that may be the case, but still the protection in section 1150A1 [00:50:53] Speaker 05: is that that alone that unlawful entry alone cannot be the basis for categorically rendering someone unable to seek asylum that's the protection Congress put in. [00:51:03] Speaker 05: And indeed, much of the asylum system is built around the premise that people who are here illegally can still seek relief from removal that's what asylum is there for that's what the expedited removal scheme. [00:51:13] Speaker 05: the entire credible fear screening process is for the persons who recently entered unlawfully can still assert protection from removal on the basis of asylum. [00:51:22] Speaker 06: So they can get asylum, but they have to serve six months in prison before they can get out. [00:51:27] Speaker 05: Is that right? [00:51:29] Speaker 05: That may be true. [00:51:30] Speaker 05: And I think that just shows that there's a lot of tools in the government's toolkit here. [00:51:33] Speaker 05: If it wants to deter unlawful entry, if it wants to penalize these persons, it can also try to enter a third country agreement with the countries these aliens came from. [00:51:42] Speaker 05: There's a lot of powers in the Asylum Laws. [00:51:45] Speaker 05: But one power that there is not is that 1158B2C says that any bar on eligibility must be consistent with this section. [00:51:53] Speaker 05: That is consistent with 1158 as a whole. [00:51:55] Speaker 05: And that includes the very first protection of the statute, the rights to apply irrespective of manner of entry. [00:52:02] Speaker 06: Yeah. [00:52:03] Speaker 06: What is the status of the proclamation now? [00:52:07] Speaker 05: The proclamation, the most recent proclamation provided that it would remain in force until 90 days after the Ninth Circuit's injunction was lifted. [00:52:15] Speaker 05: So it still remains in effect. [00:52:17] Speaker 05: And I actually think that highlights a separate legal flaw with this scheme that the government has come up with. [00:52:23] Speaker 05: What determines whether aliens are subject to this eligibility bar is whether the president decides they will be. [00:52:30] Speaker 05: He determines whether there is a proclamation that triggers this rule [00:52:35] Speaker 05: how long that proclamation lasts. [00:52:37] Speaker 05: The rule says he can make exceptions to it for persons who are not eligible for asylum. [00:52:42] Speaker 06: Well, that leads me to my next question, and this is a pure hypothetical. [00:52:47] Speaker 06: Let's suppose that the Biden administration, if it becomes an administration, the first day, January 20th, repeals or whatever the proclamations. [00:52:58] Speaker 06: Does that moot this case? [00:52:59] Speaker 06: If not, why not? [00:53:01] Speaker 05: Your honor, we think it would be entirely appropriate for the courts to hold this case in abeyance pending the inauguration to see what happens. [00:53:07] Speaker 05: I think we would need to see the content of the proclamation to determine whether it truly moots the case, whether there's no chance of any legal relief to run on exactly what he said. [00:53:18] Speaker 05: The rule itself might be hanging out there. [00:53:20] Speaker 05: I think we would want to see what it says and submit filings to that effect. [00:53:25] Speaker 05: and discuss what the result was. [00:53:27] Speaker 06: But we think that would be- That's fair enough, yeah. [00:53:31] Speaker 02: It's possible that a new incoming administration could move the case. [00:53:36] Speaker 05: It's entirely possible. [00:53:38] Speaker 05: And I think the Biden administration, to my knowledge, has indicated that they are planning to withdraw many of the current administration's asylum policies. [00:53:47] Speaker 05: So I think there's a good chance that will happen. [00:53:50] Speaker 05: And in the interest of judicial efficiency, it might be appropriate to wait. [00:53:55] Speaker 02: Can I ask a question about the merits? [00:53:56] Speaker 02: So unless Judge Randolph has a follow-up question on that, along those lines. [00:54:01] Speaker 02: On the merits, if the statute said, 1158A1, that instead of irrespective of such alien status, it said irrespective of such alien status, including whether they have been convicted of, I'm looking for the exact word, a particularly serious crime, and then the statute still had [00:54:24] Speaker 02: B to a Roman at two about a particularly serious crime. [00:54:30] Speaker 02: Would you just say, well, that statutes just completely internally inconsistent. [00:54:34] Speaker 02: It makes no sense. [00:54:36] Speaker 02: Or would it still make sense because the first provision deals with application and the second provision deals with eligibility. [00:54:45] Speaker 05: It would make no sense. [00:54:46] Speaker 05: There's no Delta after two years of litigation that the government can identify. [00:54:50] Speaker 05: between a bar on applying and a bar on eligibility. [00:54:54] Speaker 05: There's no separate benefit conferred by the rights to apply other than the possibility of being eligible. [00:54:59] Speaker 05: And both bars, bars on applying and eligibility are applied at the same point in the process by the same officers and have the same result. [00:55:07] Speaker 05: And I would just note that this rule, the government sort of floated the possibility, bars on application are a screening tool. [00:55:14] Speaker 05: and bars and eligibility somehow come in at the back end. [00:55:17] Speaker 05: As I just noted in practice, that's not true. [00:55:19] Speaker 05: They are applied simultaneously. [00:55:21] Speaker 05: But this rule actually provides that unlike every other bar and eligibility, asylum officers should apply this rule at the quote threshold in the words of this rule. [00:55:30] Speaker 05: That is, when an alien asserts a fear of removal in their credible fear screening interview, the very first question the government must ask, the asylum officer must ask, is whether they're subject to this rule. [00:55:41] Speaker 05: And if they are, they have to have asylum denied. [00:55:44] Speaker 05: So even by the government's definition, this rule functions as a screening tool. [00:55:49] Speaker 05: It walks and cracks like a bar on applying for asylum. [00:55:52] Speaker 05: So even if there was some non-existent functional distinction, I think this falls on the wrong side of that line. [00:56:02] Speaker 02: Okay. [00:56:02] Speaker 02: Thank you. [00:56:04] Speaker 02: Let me see if my colleagues have further questions for you, Mr. Reich. [00:56:07] Speaker 03: No. [00:56:09] Speaker 02: Thank you, Mr. Reich. [00:56:11] Speaker 02: Mr. Rivani, we'll give you three minutes for your rebuttal that you asked for. [00:56:15] Speaker 04: Thank you, Your Honor. [00:56:16] Speaker 04: I'll be brief. [00:56:18] Speaker 04: So just a couple points in rebuttal. [00:56:20] Speaker 04: First, Ms. [00:56:21] Speaker 04: Saharia refers to the DACA case regents, and I think we've discussed this a little bit, but just to close the loop on it. [00:56:28] Speaker 04: The court there has one paragraph. [00:56:31] Speaker 04: I'm looking at the decision now. [00:56:32] Speaker 04: And it essentially adopts the standard from Jennings in the plurality there. [00:56:35] Speaker 04: And that case is just different than this case. [00:56:37] Speaker 04: DACA has nothing to do with whether someone is eligible for relief from removal. [00:56:42] Speaker 04: It's a policy that applies entirely prior to an antecedent, any sort of removal proceeding. [00:56:49] Speaker 02: But she made the point that DACA could be asserted in a removal proceeding. [00:56:54] Speaker 02: Is that not true? [00:56:56] Speaker 04: Once you're in removal, you're not getting your DACA back. [00:56:59] Speaker 04: No, that's not correct. [00:57:00] Speaker 04: You could get relief from removal and then many months or years later, you could apply for DACA again if DACA still exists at that time. [00:57:06] Speaker 04: But once DACA is rescinded, you're not going into the immigration court and arguing you should give me DACA back. [00:57:12] Speaker 04: And I think that dovetails with the point that Mr. Rice just made. [00:57:15] Speaker 04: What is the point of making someone apply for asylum if they're just gonna be denied? [00:57:19] Speaker 04: It's not correct that it's a null set. [00:57:21] Speaker 04: When you apply for asylum, you're eligible for work authorization. [00:57:24] Speaker 04: And then as you go through your removal proceedings, which take weeks or months or years, you have work authorization. [00:57:29] Speaker 04: So that's a specific benefit that connects to an application, is that even if you're ultimately ineligible for, you can get while your application is pending. [00:57:38] Speaker 04: Just real quickly on the record-making point that Ms. [00:57:41] Speaker 04: Sahara raised, and this is something I think Judge Moss relied on as well, and I think it's wrong. [00:57:47] Speaker 04: The fact that the immigration judge can or cannot [00:57:50] Speaker 04: make a record is not really the dispositive point under these claim channeling cases. [00:57:54] Speaker 04: The dispositive point is can the Court of Appeals get the record and the Court of Appeals absolutely can. [00:57:58] Speaker 04: 1252A says that these proceedings are governed by the Hobbs Act and then it specifically carves out 2328 USC 2347C. [00:58:07] Speaker 04: As something the Court of Appeals can't do that is take new evidence but then that leaves in place 2347 B, which allows the Court of Appeals to send the case to the district court to get a record. [00:58:17] Speaker 04: Also, I mean part of this is just self inflicted plaintiffs don't want to go through the removal proceedings but nothing stops them from asking the IJ to take to produce the record or require the government to produce. [00:58:28] Speaker 04: the record in those proceedings. [00:58:29] Speaker 04: So the issue on the record is, I think, a red herring. [00:58:32] Speaker 06: The statute, the statute itself may provide because I don't have in front of you, but I thought the language was the administrative record on which the order of removal was based. [00:58:47] Speaker 06: And if the alien has raised a an asylum claim [00:58:54] Speaker 06: including that the regulation is invalid, then one could say that the administrative record for the regulation is part of the administrative record on which the order of removal is based. [00:59:10] Speaker 04: That's right, Judge Randolph. [00:59:11] Speaker 04: And just because plaintiffs choose not to ask to submit that record or require the government to submit it for the proceeding doesn't mean it can't be submitted. [00:59:19] Speaker 04: And last, this wasn't cited in our briefs, but it was cited in the Supreme Court, Stinkle Justice, Justice O'Connor's decision that we do cite in our briefs. [00:59:26] Speaker 04: It's this court's decision in Iuda, 7 of 3, 246 at 250. [00:59:31] Speaker 04: And that is sort of like, that that case is after years of litigation involving Irka and saw the issues in McNary. [00:59:39] Speaker 04: and Catholic services, which we cite in our briefs. [00:59:43] Speaker 04: And it essentially has two key holdings. [00:59:45] Speaker 04: On a scheme that was even less restrictive than this one, it said that individual aliens must raise their claims exclusively in the court of appeals. [00:59:52] Speaker 04: And then it separately said, it follows then that an organizational plaintiff could not undermine the statutory scheme by suing to challenge INS policies or statutory interpretations that bear on an alien's right to legalization, end quote. [01:00:04] Speaker 04: So I think that case is directly on point to a number of the issues here. [01:00:08] Speaker 04: And if there are no further questions, thank you. [01:00:11] Speaker 02: Thank you, counsel. [01:00:12] Speaker 02: Thank you to all counsel this morning. [01:00:13] Speaker 02: We'll take this case under submission.