[00:00:00] Speaker 01:
Case number 21-5263, Ed Al.

[00:00:04] Speaker 01:
Maxwell Goodluck, Ed Al, versus Joseph R. Biden Jr.

[00:00:07] Speaker 01:
in his official capacity as President of the United States of America, Ed Al, at balance.

[00:00:13] Speaker 01:
And case number 21-5256, Andy Giochi, Ed Al, at balance, versus United States Department of State and Anthony J. Blinken, the Secretary of State.

[00:00:23] Speaker 01:
And case number 21-5231, Antonina Serakova, at balance,

[00:00:29] Speaker 01:
versus Joseph R. Biden Jr.

[00:00:31] Speaker 01:
in his official capacity as president of the United States of America at L. Good morning, counsel.

[00:00:40] Speaker 11:
I hope I can be seen and heard in the courtroom.

[00:00:44] Speaker 11:
Welcome.

[00:00:45] Speaker 11:
And Ms.

[00:00:46] Speaker 04:
Alsterberg, we'll hear from you when you're ready.

[00:01:12] Speaker 04:
Good morning, Your Honors.

[00:01:13] Speaker 08:
Good morning.

[00:01:13] Speaker 08:
May it please the court, Tara Ulsterberg, on behalf of the United States, I've reserved five minutes for rebuttal.

[00:01:21] Speaker 08:
In March 2020, the COVID-19 pandemic changed the world.

[00:01:26] Speaker 08:
In response to the extraordinary challenges caused by the pandemic, the United States took common sense precautions to limit the spread of the deadly virus and deal with its impact.

[00:01:39] Speaker 08:
The President lawfully issued proclamations pursuant to 1182F, which barred plaintiffs from entering the United States.

[00:01:49] Speaker 08:
The Department of State followed its long-standing practice by viewing this bar on entry as rendering plaintiffs ineligible to receive visas.

[00:01:59] Speaker 08:
Second, the Department issued guidance on how to resume visa

[00:02:04] Speaker 08:
within the confines of the limited operational capacities of the consulates worldwide.

[00:02:09] Speaker 08:
And the best way for the department to prioritize its resources was to focus on family reunification, which is very common sense, particularly given the pandemic.

[00:02:21] Speaker 08:
This case was spurred on by the pandemic, but it also exists squarely within the confines of the diversity visa statute.

[00:02:28] Speaker 08:
which neither guarantees a diversity visa for every selectee or makes it a requirement that the department issue all of its diversity visas in any given fiscal year.

[00:02:39] Speaker 08:
It is unfortunate that the diversity visa program was unable to operate as it normally does, but the pandemic has been a tragedy.

[00:02:47] Speaker 08:
And the lawful and common sense precautions taken by the United States to protect individuals from this tragedy should be upheld.

[00:02:56] Speaker 03:
Could we start with your 1182 point argument?

[00:03:01] Speaker 03:
So your position that if someone is inadmissible, they shouldn't get a visa makes a lot of common sense, seems to be right as a general matter, but it does also fly in the face of the basic

[00:03:24] Speaker 03:
statutory structure of 1182, which is you have one provision addressing conditions that will bar both entry and eligibility for a visa.

[00:03:39] Speaker 03:
And then you have a different section, which is one you need to win, which is addressed only to entry.

[00:03:51] Speaker 08:
1182F should not be read alone.

[00:03:54] Speaker 08:
It is also read alongside 1201G, which states that a visa may not be issued if the applicant is, quote, ineligible to receive a visa under section of 1182 of the INA or any other provision of law.

[00:04:08] Speaker 03:
Which just brings us back to the question under 1182 of how it is we get to read F as bearing on visa eligibility.

[00:04:22] Speaker 03:
And it just talks about entry.

[00:04:24] Speaker 03:
And it's not in the 1182A section, which covers both.

[00:04:30] Speaker 08:
The district courts read this quote from 1201G as applying solely to 1182A.

[00:04:37] Speaker 08:
But that's not what 1201G states.

[00:04:40] Speaker 08:
It states 1182 in its entirety, which would- It doesn't have to apply.

[00:04:45] Speaker 11:
It doesn't have to be read only to apply to 1182A.

[00:04:49] Speaker 11:
it could be read to apply only to those provisions in 1182 that have to do with visa ineligibility.

[00:04:56] Speaker 11:
And that's not just 1182A, because there's other provisions, for example, that allow discretionary waivers.

[00:05:03] Speaker 11:
So if you have someone who otherwise would be ineligible for a visa under 1182A, but the attorney general decides to grant them a waiver under 1182H, say,

[00:05:15] Speaker 11:
then you'd have to consider both 1182A and 1182H to determine whether the person was eligible for a visa.

[00:05:22] Speaker 11:
So I take your point about 1182A not being specifically set out, but the decision to talk about 1182 writ large rather than just 1182A could be born of the need to take into account the waiver provisions that are elsewhere in 1182, which then seems to get us back to where Judge Casas was.

[00:05:45] Speaker 03:
And perhaps another- Right, just a friendly amendment to that.

[00:05:48] Speaker 03:
The key language is not 1182, which might suggest writ large, but ineligible for a visa under 1182.

[00:06:01] Speaker 08:
And the important aspect to also keep in mind is that 1201 G also states or any other provision of law.

[00:06:07] Speaker 08:
And here we can also look at 8 USC 1101, which discusses that consular officers can issue an immigrant visa only to a noncitizen who these provisions confirm are eligible to lawfully enter for a visa.

[00:06:22] Speaker 08:
And again, this makes sense because a non-citizen who is not permitted to enter or is not eligible to immigrate would not be entitled to such a visa.

[00:06:32] Speaker 08:
And history has reaffirmed this for the Department of State time and time again, and Congress has ratified it time and time again as well.

[00:06:40] Speaker 08:
looking back to pre-1924, which is the world that the district court's orders would take us to, there would be extreme amount of confusion at the borders.

[00:06:48] Speaker 08:
We would have consulate officers all over the world applying one set of criterion for individuals then to take long and arduous journeys across the world.

[00:06:59] Speaker 11:
So that, council, that argument, I

[00:07:02] Speaker 11:
I take that there's a lot of force to the practical complications that could ensue if people who mistakenly believed they could enter traveled across the world only to be reminded upon getting to the to the border that I'm sorry you just have a visa you're not able to enter that is well taken but I guess my question is

[00:07:26] Speaker 11:
Is there no discretion at all under 1182F to process visas and issue visas, even in a situation in which

[00:07:37] Speaker 11:
the President and or the Secretary of State might conclude that it makes sense to do that, notwithstanding the existence of an 1182-F order, which could happen if the 1182-F order was a fairly short duration.

[00:07:50] Speaker 11:
Visas last for six months.

[00:07:52] Speaker 11:
People could decide, well, actually it makes sense to process and issue visas.

[00:07:56] Speaker 11:
We'll give all kinds of reminders if it doesn't mean that you can get in.

[00:08:00] Speaker 11:
But as a functional matter, it makes sense to process and issue visas, notwithstanding the existence of an 1182 F bar on entry for a limited time duration.

[00:08:09] Speaker 11:
Is your view that that's a null set, that just can't happen?

[00:08:14] Speaker 08:
Well, here, that did not happen because of the confines of the pandemic and the language within these proclamations written by the president.

[00:08:24] Speaker 11:
Each of the proclamations at issue 10014... Can I just ask you just to... We can get to the particular proclamations at issue in a second, but just is it the government's position that that can't happen?

[00:08:36] Speaker 08:
It could if the proclamation itself authorized the department to continue to issue visas or if there's other language.

[00:08:47] Speaker 11:
How does that follow up from your argument about the text of 1182F and the way we ought to construe that text?

[00:08:55] Speaker 08:
The president has the discretion from 1182F to implement proclamations.

[00:09:00] Speaker 08:
That is the holding of Trumpy Hawaii.

[00:09:03] Speaker 08:
That discretion is great.

[00:09:07] Speaker 08:
That is the President's authorization.

[00:09:09] Speaker 08:
And if the President is the one instructing the Secretary of State as he has in each of these proclamations, he can create the confines of which the Secretary of State may decide to either, as it applies to visas, which is the language in these statutes, or otherwise, perhaps saying that it does not affect the issuance of visas.

[00:09:29] Speaker 08:
Inherently in proclamations that have that varying language, it's clear that the President recognizes

[00:09:35] Speaker 08:
that when he says the Secretary of State may implement the proclamation as it applies to visas, the power the Secretary of State has is to withhold or refuse visas, not something that the Department of Homeland Security has, which is to refuse entry at the border.

[00:09:54] Speaker 08:
And that's reaffirmed again by the 2002 Homeland Security Act.

[00:09:58] Speaker 11:
It seems like a different...

[00:10:01] Speaker 11:
a little bit of a different argument than I understood you to be making in your briefs, because I thought what you were suggesting is that the language of the statute puts 1182F orders in the same place as 1182A, and such that it just means that a ban on entry means no visa eligibility.

[00:10:22] Speaker 11:
But I guess what it means is that's subject to discretion.

[00:10:29] Speaker 08:
Yes, and the text of the 1182F proclamations themselves, which here it provides that the Secretary of State at its discretion will implement this proclamation as it applies to visa, pursuant to such procedures as the Secretary of State in consultation with the Secretary of Homeland Security may establish, again, in the Secretary of State's discretion.

[00:10:52] Speaker 11:
And do you read that language?

[00:10:54] Speaker 11:
It does refer to the Secretary of State's

[00:10:56] Speaker 11:
discretion, as you point out, does that mean that the Secretary of State could have decided as a matter of discretion to process and issue visas?

[00:11:06] Speaker 08:
And perhaps this is where things like the national interest exceptions do come into play.

[00:11:12] Speaker 08:
For example, on April 8th, the national interest exceptions were adopted by the Secretary of State for both 9984 and 10143, the regional proclamations.

[00:11:23] Speaker 11:
which then allowed for the oh I'm sorry I don't I don't mean I don't mean exceptions that are within the proclamation that are already set out in the proclamation I mean the proclamation as you rightly say by its terms gives the Secretary of State leeway to implement the proclamation with respect to visas and the Secretary of State have said well

[00:11:47] Speaker 11:
The leeway that I've been granted by the president includes the leeway to process and issue diversity visas.

[00:11:53] Speaker 11:
And I'm just deciding that I'm going to go ahead and issue diversity visas, even though I know that at least for the duration of the proclamation, there will be no entry.

[00:12:08] Speaker 08:
That wouldn't make sense if the restrictions cannot be enforced through the refusal of visas as they were in these cases.

[00:12:17] Speaker 08:
The Department of State, through visa denial, is something that has been endorsed by Congress for decades.

[00:12:25] Speaker 08:
And consular officers have denied visas to persons barred from entry under exercises of the President's authority under 1182F.

[00:12:34] Speaker 08:
And this is also reaffirmed by the language of what an immigrant visa even is.

[00:12:40] Speaker 08:
As the Supreme Court recognized in DIN, consular officers must

[00:12:45] Speaker 08:
screen non-citizens applying for visas for excludability or inadmissibility, not only the ineligibility criteria that's found in 1182A.

[00:12:56] Speaker 08:
Here, because the 1182F proclamation

[00:13:00] Speaker 08:
would bar the entry of these non-citizens, they were deemed inadmissible and excludable.

[00:13:05] Speaker 08:
And this is reinforced by the text of Hawaii as well, which states that 1182 defines the pool of individuals who are admissible to the United States and how that any alien who is inadmissible under 1182 is screened out as ineligible to receive a visa.

[00:13:22] Speaker 08:
Here the Department of State

[00:13:24] Speaker 08:
through the 1182F proclamations determined that because these plaintiffs were ineligible to receive, inadmissible to enter the United States, they would be ineligible to receive visas.

[00:13:38] Speaker 08:
And this makes sense as well because the president uses 1182F in other realms of the world as well, whether it's human trafficking, human rights violations, or even currently President Biden has used an 1182F entry bar for certain officials of the Russian government who are harming and threatening the sovereignty of the Ukraine by the district court's own interpretations

[00:14:02] Speaker 08:
the State Department would be required to issue visas to those individuals if they were otherwise admissible, only to put the onus on the Department of Homeland Security to turn them away at the border.

[00:14:15] Speaker 03:
So there are three possibilities.

[00:14:17] Speaker 03:
One is that the State Department is required to process the visas in the face of an 1182F proclamation.

[00:14:30] Speaker 03:
Another is that they are prohibited from processing the visas.

[00:14:35] Speaker 03:
And the third is they have discretion to process them or not as they wish.

[00:14:41] Speaker 03:
I thought your position is that they are prohibited.

[00:14:45] Speaker 08:
Yes, and that is the second position.

[00:14:47] Speaker 08:
I think perhaps to make it clear on the third element, it's just the language of the proclamation themselves can dictate that.

[00:14:55] Speaker 03:
Yeah, so you started losing me a little bit.

[00:14:58] Speaker 03:
I think you answered

[00:14:59] Speaker 03:
Judge Srinivasan that there could be discretion at least if it was baked into the proclamation itself.

[00:15:10] Speaker 03:
It's not the case here, but just to play that out.

[00:15:15] Speaker 03:
Your statutory theory is that 1182 read in context of the whole INA and in light of the history of visa operations,

[00:15:30] Speaker 03:
makes inadmissibility considerations just become grounds for denying visas as a matter of law.

[00:15:42] Speaker 03:
So I don't see how you get the discretion or how the president gets the discretion to sever an inadmissibility consideration from

[00:15:59] Speaker 03:
And that's a sufficient ground to deny a visa.

[00:16:02] Speaker 08:
And that kind of hypothetical is not an issue here.

[00:16:05] Speaker 08:
And that, you know, it goes back to these proclamations do not set out that kind of potential severance.

[00:16:11] Speaker 08:
Instead, they fall within the second category of the three categories that are laid out, which is that they afford themselves to the denial of visa issuance.

[00:16:24] Speaker 08:
And perhaps, again, looking to things like the Homeland Security Act of 2002, this makes sense, again, because that provision that Congress ratified and specified states that nothing in this section shall be construed to affect any delegation of authority to the Secretary of State by the President pursuant to any proclamation issued under 1182F, which means, again, that Congress authorized the President to instruct the Secretary to assist in the implementation of an 1182 entry bar.

[00:16:54] Speaker 08:
style of proclamation.

[00:16:55] Speaker 08:
The denial of visas to entry burden on citizens is the only way that the secretary could actually utilize itself in that scenario.

[00:17:05] Speaker 11:
And the secretary- Can I just get back?

[00:17:08] Speaker 11:
I'm still a little confused.

[00:17:09] Speaker 11:
Are there three categories or are there two?

[00:17:13] Speaker 08:
I would say there is the one at issue here, which is the middle category of- No, not at issue here, just as a conceptual matter.

[00:17:22] Speaker 11:
Is it possible to have a situation under your reading of 1182F under which the Secretary of State has discretion to process and issue visas in the face of an 1182F order?

[00:17:36] Speaker 08:
And in that hypothetical, it would be something where the President himself in the 1182F proclamation specified that it would not affect visa issuance for language along those lines.

[00:17:49] Speaker 08:
Because, and in that scenario, again, that would only reaffirm the State Department's interpretation because if the President had to go out of his way to clarify that it would not affect visa issuance, that, you know, reaffirms that the State Department's interpretation that other 1182F proclamations are affected by the State Department's control of visa issuance in those cases.

[00:18:14] Speaker 11:
So then it sounds to me like there are,

[00:18:16] Speaker 11:
If I understood the architecture correctly, there are three categories.

[00:18:22] Speaker 11:
You think 1182F actually doesn't, as a matter of its own force, preclude visa issuance.

[00:18:28] Speaker 11:
Is your view that it just sets a default assumption that an 1182F or proclamation bars visa issuance unless the president says otherwise?

[00:18:40] Speaker 11:
Or how does it work?

[00:18:41] Speaker 11:
Because I understood your argument from the briefs to be that as a matter of 1182F itself,

[00:18:46] Speaker 11:
visa issuance is just for voting in the context of 1182F proclamation by the president.

[00:18:53] Speaker 08:
And that is the point that the government has made here, is that 1182F alongside 1201G, alongside a decade's worth of history of utilizing 1182F proclamations as the reason to

[00:19:10] Speaker 08:
not allow for visas to be issued to non-citizens.

[00:19:14] Speaker 08:
That is the whole point.

[00:19:15] Speaker 08:
That is the common sense here as well.

[00:19:20] Speaker 08:
There is also the visa lookout system, another example of Congress ratifying the department's long-standing practice.

[00:19:28] Speaker 03:
What can you tell us about the origins and scope of the visa lookout system?

[00:19:36] Speaker 03:
It seems to me it would be very helpful for you

[00:19:40] Speaker 03:
if the visa lookout system were some comprehensive effort to make a list of every alien in the world who is ineligible.

[00:19:55] Speaker 03:
And the visa, the consular officer is supposed to check that list if they're ineligible, no visa, and there's your connection between admissibility and entry.

[00:20:08] Speaker 03:
It's a little hard to believe that's how it works as opposed to just being a list of some finite number of known bad actors.

[00:20:20] Speaker 03:
I mean, is it really the case that in the face of this proclamation governing every alien on planet Earth that all those people were put in the diesel lookout system?

[00:20:37] Speaker 08:
Here, the visa lookout system is developed by the Secretary and includes exclusion lists, an 1182F proclamation barring the entry of certain non-citizens.

[00:20:51] Speaker 08:
Being aware of those proclamations are what is part of that exclusion list, meaning that the Secretary of State and the consular officers abroad would know, first and foremost, that these 1182 proclamations

[00:21:06] Speaker 08:
existed applying to the non-citizens and therefore they would not be eligible to receive a visa.

[00:21:12] Speaker 08:
And that would be the same information that the Department of Homeland Security would have at all of the ports of entry to ensure that it was the same criterion being applied in both places.

[00:21:24] Speaker 03:
Is it entered generically, just the lookout system says no immigrants may enter at this point?

[00:21:35] Speaker 03:
or no government officials from Cuba or whatever it is.

[00:21:40] Speaker 08:
I am not certain of the precise language within the automated visa lookout system, but to the extent that the system has the exclusion list, individuals who are excludable pursuant to the 1182 proclamations would be unable to enter and ineligible for visas at that point.

[00:21:59] Speaker 03:
In the language you give in your brief,

[00:22:03] Speaker 03:
says non-citizens whose entry has been suspended through 1182F will have their names included in the automated visa lookout system.

[00:22:16] Speaker 03:
Which is a great fact for you if it's true.

[00:22:19] Speaker 03:
It's just having a hard time understanding how this works where the 1182 order is not targeting

[00:22:30] Speaker 03:
you know, leading officials of the Russian government or something, and it's just targeting would-be immigrants writ large.

[00:22:39] Speaker 08:
And if, as so long as the name of the immigrants are listed out, which apologies, yes, that information is accurate, then that information would come from the State Department's own records as well.

[00:22:54] Speaker 08:
And the list of individuals in these cases, individuals seeking diversity visas and who have been selected as part of a fiscal year 2020 or 2021 process.

[00:23:07] Speaker 11:
Can I just get back to the conceptual question one more time?

[00:23:09] Speaker 11:
Sorry to keep dwelling on this, but I want to make sure I understand the government's position on the interpretation of the statute.

[00:23:16] Speaker 11:
It sounds to me like the government thinks the following situation is possible.

[00:23:21] Speaker 11:
The president issues an 1182-F order, excuse me, and the president decides that the president would like visas to be processed and issued during the existence of the 1182-F order.

[00:23:34] Speaker 11:
And that seems functionally like that could be the case, because the president might well conclude, yes, I want a bar on entry.

[00:23:40] Speaker 11:
I need that for a time being.

[00:23:42] Speaker 11:
But I'm sufficiently confident that the conditions that lead me to think that bar is necessary will dissipate.

[00:23:47] Speaker 11:
And in the meantime, I don't want to ball what's up, the issuance of visas, because those are going to be good for six months.

[00:23:53] Speaker 11:
Let's just keep the pipeline going.

[00:23:56] Speaker 11:
If the president reaches that conclusion, the president could implement that, even though

[00:24:00] Speaker 11:
your reading in the brief seem to indicate, in my view, that that might not be possible.

[00:24:06] Speaker 11:
So presumably the president would then issue a proclamation that would say,

[00:24:10] Speaker 11:
I'm issuing an entry bar, but I'd like the Secretary of State to continue processing and issuing visas.

[00:24:16] Speaker 11:
And it would put that in the proclamation.

[00:24:18] Speaker 11:
And you think that's OK under the statute.

[00:24:20] Speaker 11:
The president wouldn't be acting contrary to law under the statute.

[00:24:23] Speaker 11:
The president could do that.

[00:24:24] Speaker 11:
And then the Secretary of State, by order of the president and the proclamation, would then continue to process and issue visas.

[00:24:30] Speaker 11:
You think that's possible.

[00:24:34] Speaker 08:
Yes, because there's also 1185A, which is part of the proclamations as well, which states that the president may impose

[00:24:45] Speaker 08:
any restrictions he may deem appropriate as well.

[00:24:48] Speaker 11:
The authority for these proclamations comes... Right, that's the language in 1182f itself, right?

[00:24:54] Speaker 11:
The last clause of the first sentence says, or impose on the entry of aliens any restrictions he may deem to be appropriate.

[00:24:59] Speaker 11:
If that's where you're getting that from, I take the point.

[00:25:02] Speaker 11:
So that means that scenario is possible, notwithstanding what I understood to be your interpretation of 1182f.

[00:25:08] Speaker 11:
Now suppose what the president thinks then is one step short of that, which is I'm not going to direct the secretary of state to continue to process and issue visas, but I want to give the secretary of state discretion to do that.

[00:25:22] Speaker 11:
And I trust the secretary of state.

[00:25:24] Speaker 11:
The secretary of state needs to look at the system and decide whether to continue and process visas given the secretary's assessment of the state of the consular offices, et cetera.

[00:25:33] Speaker 11:
I think if the president could do that as well.

[00:25:36] Speaker 11:
It seems to me that follows necessarily from the point that you just acknowledged.

[00:25:46] Speaker 08:
These are potential scenarios, again, that are not at issue in this case.

[00:25:50] Speaker 11:
I don't know that they're not at issue, but they're obviously hypotheticals.

[00:25:54] Speaker 11:
And I'm just it seems to me that that I could be wrong.

[00:25:57] Speaker 11:
And please, by all means, tell me if I'm wrong.

[00:25:59] Speaker 11:
But I think that I understand that the president's authority to do the former, which is to direct the secretary of state to process an issue, be it notwithstanding an eleven eighty two proclamation, would subsume

[00:26:11] Speaker 11:
the authority to ask the Secretary of State to exercise discretion to determine whether or not to continue processing and issuing visas.

[00:26:21] Speaker 08:
And potentially in a case such as that, there is the potential for there to be some kind of carve out for the Secretary.

[00:26:31] Speaker 11:
Okay, then why isn't that exactly what happened here?

[00:26:33] Speaker 11:
Because your

[00:26:35] Speaker 11:
I completely take your point about the language of the proclamation, which, in the relevant clause, directs the Secretary of State to implement the proclamation with respect to visas.

[00:26:48] Speaker 11:
The straightforward way to read that, it seems to me, or at least a straightforward way to read it, is Secretary of State user discretion to decide whether it makes sense to continue processing and issuing visas.

[00:27:05] Speaker 04:
It just seems like that's exactly what it says.

[00:27:08] Speaker 08:
And the Secretary of State and the Department of State looking to history and the long-standing interpretations of 1180, two proclamations in the past, read that to mean, as it has in decades past, to mean that they could refuse to issue the visas in these cases because... But if that's the way it worked,

[00:27:32] Speaker 11:
then that would be an exercise of discretion by the Secretary of State.

[00:27:36] Speaker 11:
Whereas I think everything you've pointed to in your briefs, understandably, and as I read the challenged secretarial policies, they don't purport to make a programmatic decision.

[00:27:50] Speaker 11:
They say that by virtue of the 1182f order by the statute itself, I don't have any discretion.

[00:27:56] Speaker 11:
That means that visas can't be issued.

[00:27:59] Speaker 11:
It wasn't an exercise of discretion.

[00:28:01] Speaker 11:
It was just a conclusion that the statute mandated, which I thought was your original argument.

[00:28:05] Speaker 11:
But now we're in the land where that doesn't have to be the case.

[00:28:08] Speaker 11:
And in that situation, it seems to me that you would want some exercise of discretion.

[00:28:12] Speaker 11:
And I don't see that.

[00:28:14] Speaker 11:
I don't think.

[00:28:15] Speaker 11:
What I see is the secretary, in concert with the argument that I thought was in your briefs, reading the statute to prohibit the exercise of discretion to issue visas.

[00:28:27] Speaker 08:
The statute itself does state alongside 1201G that visas may not be issued to applicants who are ineligible to receive a visa under section 1182.

[00:28:40] Speaker 08:
These read in tandem can only provide the common sense reading that under 1182F and 1201G, visa refusal is the common sense reading.

[00:28:52] Speaker 08:
And again, this also would,

[00:28:56] Speaker 08:
applies to Hawaii v Trump, where the whole point there was a proclamation issue to improve visa issuance processes.

[00:29:06] Speaker 08:
And it would have made no sense for the State Department in that scenario as well to issue visas in any form.

[00:29:12] Speaker 08:
And again, human rights trafficking, human rights violations, human trafficking, or other instances apply

[00:29:21] Speaker 08:
the district court's reading would require the Department of State to nonetheless issue visas to individuals who would otherwise be ineligible to enter the country.

[00:29:32] Speaker 08:
The Secretary of State and the Department of State need the ability to ensure that the criterion that they're looking at is the same as the criterion that the Department of Homeland Security is looking at.

[00:29:44] Speaker 08:
And this common sense reading on its face is what allows for the refusal of visas.

[00:29:51] Speaker 11:
I think there's a lot to the common sense notion.

[00:29:54] Speaker 11:
I don't deny that.

[00:29:56] Speaker 11:
I guess the question is whether the common sense notion requires an exercise of discretion that shows that this is the common sense solution, or is it that the secretary thinks, as I read the policies to have done, that there's not even an exercise of discretion here.

[00:30:09] Speaker 11:
It just has to follow from the statute, which your argument today already I think

[00:30:15] Speaker 11:
allows isn't the case.

[00:30:17] Speaker 11:
It doesn't have to follow from the statute.

[00:30:19] Speaker 11:
But anyways, I'm dwelling on something that we've been around.

[00:30:21] Speaker 11:
I don't mean to sidetrack the argument.

[00:30:26] Speaker 08:
Yes, I see that I've gone into my rebuttal time.

[00:30:28] Speaker 08:
I'm concerned if there are additional questions on 1182F at this juncture or whether.

[00:30:35] Speaker 03:
If there is such discretion, why wouldn't we read it into at least

[00:30:45] Speaker 03:
First order was effective for two months, I believe, which is a relatively short amount of time compared to the six-month visa window.

[00:30:59] Speaker 03:
Why wouldn't we read that as at least allowing for the possibility that continue to process the visas?

[00:31:10] Speaker 03:
The suspension is only going to be in effect for two months.

[00:31:14] Speaker 08:
Again, because 1182F on its face and the long-standing and historically ratified components of the State Department's 1182F interpretation would mean that the State Department would not issue visas even if it is just for two months.

[00:31:32] Speaker 03:
But that's just back to an argument, the argument you made in your brief, which is that the statute prohibits this.

[00:31:40] Speaker 08:
Each of these were extended.

[00:31:43] Speaker 08:
The pandemic was an unknown reality at that time period.

[00:31:48] Speaker 08:
In the Gomez litigation from the very first proclamation through the end of the fiscal year, the proclamation was extended through the end of the fiscal year.

[00:31:57] Speaker 08:
There was no reason to think that these would not continue to be extended as the pandemic continued on as well.

[00:32:05] Speaker 11:
Can I just follow up on Judge Katz's question?

[00:32:07] Speaker 11:
And we will get to a couple of other issues.

[00:32:10] Speaker 11:
Thank you for your sensitivity about the time.

[00:32:11] Speaker 11:
But as I read the proclamation, the original proclamation, the main proclamation, which is 10014, it says in section three, the secretary of state shall implement this proclamation as it applies to visas,

[00:32:30] Speaker 11:
Pursuant to such procedures as the Secretary of State in consultation with the Secretary of Homeland Security may establish in the Secretary of State's discretion."

[00:32:39] Speaker 11:
That just seems to me to give the Secretary of State discretion to do exactly what we were talking about earlier, in which I think Judge Casas' question was getting to, which is to decide whether to continue processing and issuing visas or not.

[00:32:55] Speaker 11:
That language seems pretty good.

[00:33:01] Speaker 11:
It seems like exactly what Judge Katz's question laid out, which is why wouldn't the proclamation be read to give the Secretary of State that discretion in that sentence?

[00:33:14] Speaker 11:
It just says that.

[00:33:17] Speaker 08:
Yes, and perhaps this is also why the department's interpretation should be entitled to the Skidmore power to persuade standard.

[00:33:28] Speaker 08:
The Foreign Affairs Manual has been around for decades.

[00:33:32] Speaker 08:
In both 9FAM 302.14 and 9FAM 301.41A, each describes ineligibility based on sanctioned activities to include 212F, which implicitly indicates that the department treats a prohibition on entry under 1182F as a condition that renders an individual ineligible for a visa.

[00:33:55] Speaker 08:
Likewise, under 301.41,

[00:33:58] Speaker 08:
the department looks at 1182F as a ground for refusal.

[00:34:04] Speaker 11:
That would be, I think, a compelling exercise of discretion if discretion were exercised, and it would be one that would draw, I don't know about Skidmore deference, people have different views on exactly what that entails, but I understand that if the Secretary of State exercised discretion and reached a determination, then we would give

[00:34:26] Speaker 11:
do consideration to the secretary's thinking in doing so.

[00:34:30] Speaker 11:
But here, by your own argument, there was no exercise of discretion.

[00:34:35] Speaker 11:
It was just a conclusion that the statute forbade the issuance of visas.

[00:34:39] Speaker 11:
And the April 25th, April 28th statement released by the secretary just says that.

[00:34:50] Speaker 11:
It just says in paragraph three, the issuance of many immigrant visas was suspended by presidential proclamation, which is exactly the argument you made in brief, which is that there's just no choice.

[00:35:03] Speaker 11:
There wasn't an exercise of discretion.

[00:35:04] Speaker 11:
There wasn't a policymaking decision.

[00:35:06] Speaker 11:
There wasn't a taking into account of common sense considerations.

[00:35:09] Speaker 11:
It was just a legal conclusion that because the 1182 proclamation issued, end of story, that means visa issuance is suspended, notwithstanding the language we were just talking about, which gave the Secretary of State discretion seemingly to decide what to do with visas.

[00:35:24] Speaker 11:
The Secretary of State concluded there actually isn't any discretion on this issue because it just means I have no discretion.

[00:35:31] Speaker 11:
I can't issue visas, the proclamation issued, end of story.

[00:35:36] Speaker 08:
And looking to the even the impetus for these proclamations though, it is the pandemic and this can't be looked at discretion in a vacuum.

[00:35:45] Speaker 08:
This is discretion at a time when the whole world was shutting down and in-person contact would potentially lead to grave illness or death.

[00:35:54] Speaker 08:
And perhaps this is also tied into the prioritization scheme that the department had to craft during that time period as consulates worldwide each review.

[00:36:05] Speaker 03:
That's a great argument for not processing visas.

[00:36:09] Speaker 03:
But it's not the argument made to support the administrative orders that we're reviewing.

[00:36:20] Speaker 03:
And the rationale asserted by the agency was 1182F prohibits us from doing this, period, stop.

[00:36:30] Speaker 08:
But the agency did look to history, look to pre-1924 and the various other proclamations that have been issued throughout the year.

[00:36:39] Speaker 03:
In order to reinforce the point that the statute prohibits issuance of visas.

[00:36:45] Speaker 08:
And in those light scenarios,

[00:36:48] Speaker 08:
it should and did.

[00:36:49] Speaker 08:
And again, that is why the common sense prevails in this case as well and why those reflect the State Department's interpretation here as well.

[00:37:02] Speaker 11:
Can I ask you, I don't wanna cut off lines of questions that my colleagues might have on other issues.

[00:37:08] Speaker 11:
I wanted to see if we could shift to the issue about the authority to grant relief to the particular plaintiffs, not withstanding the lapse of the fiscal year.

[00:37:24] Speaker 03:
If Mike.

[00:37:26] Speaker 03:
I'm down on Q1.

[00:37:29] Speaker 11:
Thank you.

[00:37:29] Speaker 11:
So if we can shift to that issue, Ms.

[00:37:34] Speaker 11:
Osterberg.

[00:37:35] Speaker 11:
So one question that I have about that argument by the government.

[00:37:41] Speaker 11:
And again, I understand the force of that argument.

[00:37:43] Speaker 11:
I understand the argument under the text of the statute and the judge Easter's opinion from the seventh circuit is usable for you for that purpose.

[00:37:53] Speaker 11:
My question is a practical one.

[00:37:56] Speaker 11:
Does that argument mean for all practical purposes that the Supreme Court could never review a question about diversity visas?

[00:38:07] Speaker 11:
Because under the Supreme Court's normal time track for granting and considering a case, the fiscal year would have ended if it's an issue about diversity visas.

[00:38:17] Speaker 11:
And then there would be no ability to grant relief.

[00:38:20] Speaker 11:
So the case would be moot.

[00:38:21] Speaker 11:
End of story.

[00:38:22] Speaker 11:
It never gets to the Supreme Court.

[00:38:25] Speaker 08:
Yes, that would be the case, because the remedy would come from Congress.

[00:38:29] Speaker 08:
This is a separation of powers issue.

[00:38:32] Speaker 08:
This is historically looking at examples where Congress has acted in the past, whether it be administrative errors, embassy bombings, or even 9-11.

[00:38:42] Speaker 08:
Congress has stepped in and taken diversity visas from the next year's allotment, even though there may have even been leftover diversity visas from those prior years.

[00:38:52] Speaker 08:
It is Congress.

[00:38:54] Speaker 11:
That seems like a pretty extraordinary result.

[00:38:57] Speaker 11:
And you're of course right that Congress can decide in particular cases to enact statutes that provide relief as they have done in a handful of occasions.

[00:39:06] Speaker 11:
But to read a statute as Congress intending to preclude individuals from getting relief, even if the Supreme Court concludes that the way the statute has been read is wrong,

[00:39:21] Speaker 11:
the Supreme Court would be disabled from doing anything about it, period.

[00:39:24] Speaker 11:
There's nothing the Supreme Court could do to grant relief.

[00:39:30] Speaker 11:
Even though the Supreme Court, by hypothesis, would assume, would conclude that the way the statute has been construed and applied is just lawless.

[00:39:39] Speaker 08:
The construction of the INA also supports where diversity visas fall though as well.

[00:39:47] Speaker 08:
Everywhere in the INA, the mission of the State Department looks to family reunification and

[00:39:55] Speaker 08:
There are timetables about requirements for the speed in which the Department of State must process immediate relative and fiance visas within 30 days and family preference cases within 60 days.

[00:40:09] Speaker 08:
And here diversity visas are simply not put on the same footing and the relief that would come would come from Congress.

[00:40:19] Speaker 11:
Can I ask one follow-up question, which is in the Seventh Circuit's opinion, the Shahi case, the opinion hypothesized that this point was a statutory defense that the government could waive or forfeit.

[00:40:37] Speaker 11:
And if that were so, then that would be a potential route, even if it's by the government's discretion, that would be a potential route to keep a case alive for purposes of effective relief, because the government could decide that it wants to forfeit the point or just affirmatively waive the point to get a legal answer to the underlying statutory interpretation question that by hypothesis is an issue.

[00:40:58] Speaker 11:
So do you take issue with that part of the Shahi opinion?

[00:41:05] Speaker 08:
Yes, to the extent that 1154A by law sets the deadline, September 30th, midnight.

[00:41:13] Speaker 11:
So that's to the full extent.

[00:41:15] Speaker 11:
In other words, that's not a caveated answer.

[00:41:17] Speaker 11:
You're just saying you think that's wrong, that it was wrong of the Seventh Circuit to hypothesize that this is a statutory defense that the government could waive or forfeit.

[00:41:25] Speaker 11:
You think it's non-waivable and non-forfeitable.

[00:41:28] Speaker 08:
Shahi also looks to this as a merits issue, though, and that seems to

[00:41:35] Speaker 08:
be on point for the Department of State's position as well.

[00:41:41] Speaker 11:
But even if it's a merits issue, I guess just to get a complete answer that you think a merits issue can be waived or forfeited.

[00:41:49] Speaker 11:
And so even if we assume that it's a merits issue rather than a jurisdictional one, your position is that Shahi was wrong to think that the government could waive or forfeit.

[00:42:00] Speaker 11:
the argument that the end of the fiscal year means the case is over.

[00:42:03] Speaker 11:
You think that's not waivable or forfeitable.

[00:42:06] Speaker 11:
It just is.

[00:42:08] Speaker 08:
Yes, to limit.

[00:42:09] Speaker 08:
If Shahi isn't seen as limiting the statutory tax, the plain language, then yes, there could be the government would not agree that it could be waived in that scenario.

[00:42:22] Speaker 08:
Um, and

[00:42:23] Speaker 08:
the issue with the district court's opinions here and why we're here today is the over broad reading of this circuit's decision in alma crami that leaves open that let's put before we get to that.

[00:42:35] Speaker 03:
Let's just tie this down.

[00:42:37] Speaker 03:
Why the statute could be as as mandatory and clear as can be in your favor.

[00:42:49] Speaker 03:
You could still

[00:42:51] Speaker 03:
choose in litigation not to assert it.

[00:42:55] Speaker 03:
The only thing that would prohibit you from doing that is if this statute went to a court's subject matter jurisdiction, which I don't see how it possibly does.

[00:43:07] Speaker 03:
It's just a substantive rule about how the program resets every year.

[00:43:12] Speaker 03:
It doesn't say a word about our power to adjudicate that.

[00:43:16] Speaker 08:
Well, inherently the eligibility for a diversity visa also

[00:43:21] Speaker 08:
expires that night and the district courts here and what they perceive as their equity have attempted to overcome the statute and extend that eligibility.

[00:43:32] Speaker 08:
But simply because one could attempt to reserve the visa numbers for the fiscal year end does not negate the fact that- No, I understand that, but that's your argument.

[00:43:42] Speaker 03:
That's your argument on the merits against what the district court did here.

[00:43:48] Speaker 03:
I'm just not sure why you're resisting Judge Srinivasan's suggestion that you could choose to waive this in litigation, which is actually a friendly question for you because it gives a means for teeing up Supreme Court review if the government wants it.

[00:44:08] Speaker 08:
Perhaps there are scenarios where this merits issue could be waived in litigation for purposes that are not at issue here.

[00:44:20] Speaker 08:
It was not waived here.

[00:44:22] Speaker 08:
This is a merits issue here.

[00:44:24] Speaker 08:
The district court's orders are problematic and have grave impact.

[00:44:34] Speaker 08:
on the separation of powers in terms of providing relief that should be provided by Congress if Congress chooses to do so.

[00:44:42] Speaker 08:
And again, rely on that over-broad reading of al-Makrami, which just returned the case as not moot, not decided that you can reserve and then unlawfully adjudicate in a fiscal year in which the statute clearly provides a spot.

[00:45:01] Speaker 03:
How would you handle

[00:45:03] Speaker 03:
of cases in this court in which we have asserted a power to suspend operation of statutory lapses of appropriations.

[00:45:17] Speaker 03:
That seems pretty analogous, right?

[00:45:19] Speaker 03:
There's a statute that says the pool of money is available until September 30 and no further.

[00:45:26] Speaker 03:
And we've asserted this extraordinary power

[00:45:31] Speaker 03:
litigation is filed before September 30, we just think we can turn that statute off, that deadline off.

[00:45:38] Speaker 03:
Why is this any more aggressive or edgy or creative than that?

[00:45:47] Speaker 08:
Money is fungible and these diversity visas are not.

[00:45:53] Speaker 08:
There is

[00:45:54] Speaker 08:
no way to suspend, there's no option for suspension under the statute.

[00:45:59] Speaker 08:
These visas and the eligibility for the diversity visa selectees does not expire.

[00:46:07] Speaker 03:
I mean, we're asserting an equitable power to overlook a statutory deadline in furtherance of our ability to give relief in the pending case.

[00:46:21] Speaker 03:
That seems common to

[00:46:24] Speaker 03:
appropriations cases on what the district courts did here.

[00:46:29] Speaker 08:
Maybe it's also important to note that the diversity visa selectives each year are also over selected.

[00:46:36] Speaker 08:
In inherently choosing who may or may not get one of these diversity visa numbers, the courts are micromanaging the State Department's own authorities and how it randomly selects diversity visa applicants each year.

[00:46:52] Speaker 08:
In the fiscal year 2020 case, there were over 90,000 plaintiffs and beneficiaries vying for one of the 55,000.

[00:47:00] Speaker 08:
And in 2021, there were over 130,000

[00:47:04] Speaker 08:
selectees.

[00:47:06] Speaker 08:
An individual is not eligible to make the application until they have that in-person interview and until such a time that eligibility also does not exist.

[00:47:18] Speaker 11:
If we slice the issue in the following way, can you let me know what the problem is?

[00:47:26] Speaker 11:
which is that when, let's just hypothesize, I know you resist, but let's hypothesize that the district courts and the courts have some power to grant an effective relief, notwithstanding the end of the lapse of a fiscal year, and by doing something we'll call reserving visas.

[00:47:41] Speaker 11:
But reserving visas doesn't mean that the State Department has to adjudicate

[00:47:49] Speaker 11:
It just means that the State Department just doesn't rely on the lapse of the fiscal year and then pretends like the relevant fiscal year is still in place and then just processes the paper that it has before it, however it otherwise might, which includes all the discretion that the State Department always has.

[00:48:12] Speaker 11:
when in the same situation as if it were in the middle of the fiscal year.

[00:48:17] Speaker 11:
So it could include the discretion not to grant an interview.

[00:48:21] Speaker 11:
That discretion exists, but just what it means is they can't do whatever the legal flaw would have been that causes us to send it back.

[00:48:28] Speaker 11:
Here, by hypothesis, it could be something like there was no exercise of discretion under 1182f.

[00:48:34] Speaker 11:
So this policy was wrong.

[00:48:38] Speaker 11:
We send it back.

[00:48:38] Speaker 11:
But that doesn't mean anybody has to get an interview.

[00:48:42] Speaker 11:
What it means is that it sets everybody back exactly in the same position they would have been in, including the State Department, which is it gives the same degree of discretion, other than to say that the last fiscal year means that this application is over.

[00:48:57] Speaker 11:
Would that scenario be

[00:49:01] Speaker 11:
workable if we concluded, and I know you've got a lot of arguments otherwise and I'm not saying that I've necessarily concluded that I just want to play out the hypothetical.

[00:49:10] Speaker 11:
If the court were to conclude that there is some power to grant effective relief by the Supreme Court or by lower courts in these kinds of situations, notwithstanding the end of the fiscal year.

[00:49:23] Speaker 08:
There are three points I have in response.

[00:49:27] Speaker 08:
The first is, again, the remedies, Congress.

[00:49:31] Speaker 08:
As much as this court or any court would want to provide relief, it's clear that it should come from Congress.

[00:49:37] Speaker 08:
My second point is that agency regulations have also implemented the congressional mandates of 1154A, and that's found in 22 CFR 42.33A1.

[00:49:48] Speaker 08:
which states under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa as eligibility.

[00:50:00] Speaker 11:
Oh, go ahead.

[00:50:02] Speaker 11:
Make a third point, sorry.

[00:50:04] Speaker 08:
The last point is just there may also be a snowball effect in the time it might take for the State Department.

[00:50:13] Speaker 08:
Again, this is a zero sum game with these interviews and this is something the Department discusses,

[00:50:18] Speaker 08:
with the prioritization guidance, taking away thousands of slots for previous fiscal years without just maybe a snowball effect every year after that.

[00:50:30] Speaker 08:
There might not be adjudication of all the diversity visas available in every fiscal year with that entitled a reservation of 1,000 this year, 100 next year.

[00:50:42] Speaker 08:
Does the State Department always have to reach this 55,000 ceiling

[00:50:47] Speaker 08:
No, nowhere in the INA, nowhere in this statute does it say that the State Department needs to meet this cap.

[00:50:56] Speaker 08:
These are the three issues.

[00:51:00] Speaker 09:
Okay.

[00:51:03] Speaker 09:
Am I correct in assuming that any of these plaintiffs or all of these plaintiffs could reapply?

[00:51:10] Speaker 08:
They could reapply.

[00:51:12] Speaker 09:
There's nothing that puts them at the back of the line.

[00:51:15] Speaker 08:
They could reapply to the diversity visa lottery.

[00:51:24] Speaker 11:
Thanks.

[00:51:24] Speaker 11:
So in other words, they wouldn't be put to the back of the line, but they wouldn't go to the front of the line either.

[00:51:29] Speaker 11:
They'd just be in the random line in the same way that everybody else would be in applying for a current or subsequent fiscal year.

[00:51:38] Speaker 08:
Yes, they could apply to become part of the program and then hope that they would actually be selected to become part of the program as well to make that very clear.

[00:51:53] Speaker 10:
Yes, my colleagues have additional questions on other areas of the case.

[00:51:59] Speaker 11:
I'm sorry, I didn't catch that.

[00:52:04] Speaker 11:
It's my mistake.

[00:52:05] Speaker 09:
No, I don't.

[00:52:06] Speaker 09:
I'm sorry.

[00:52:06] Speaker 09:
I don't have any.

[00:52:07] Speaker 11:
Nor do I.

[00:52:09] Speaker 11:
Okay, then maybe we'll give you some time for rebuttal.

[00:52:15] Speaker 11:
If you have any particular thing you want to conclude on, by all means, do so.

[00:52:20] Speaker 11:
Or if there's something you want to wrap up, do so.

[00:52:22] Speaker 11:
But otherwise, we'll hear from the other side, and we'll give you some time for rebuttal.

[00:52:27] Speaker 08:
Thank you, Your Honors.

[00:52:30] Speaker 08:
I'll see you.

[00:52:32] Speaker 04:
Thank you.

[00:52:52] Speaker 13:
May it please the court?

[00:52:53] Speaker 13:
My name is Jesse Gilles.

[00:52:54] Speaker 13:
I represent the Apple Police in this case.

[00:52:57] Speaker 13:
I want to talk about the three categories that Judge Katz has raised.

[00:53:00] Speaker 13:
I think that's an apt way to structure it.

[00:53:02] Speaker 13:
And we are in category two, which was the prohibition that they relied on a reading of a statute to stop not just to deny, to stop processing and adjudicating wholesale visas.

[00:53:18] Speaker 13:
Even in the case that they rely on from the Hawaii, they recognize that the distinction between entry and visa issuance runs throughout the INA.

[00:53:30] Speaker 13:
And they cite specific examples of that, as do we in our brief.

[00:53:35] Speaker 13:
They're not the same.

[00:53:36] Speaker 13:
Can I ask you?

[00:53:37] Speaker 11:
Oh, I'm sorry.

[00:53:38] Speaker 11:
Go ahead.

[00:53:38] Speaker 03:
I'll go ahead.

[00:53:39] Speaker 11:
Can I ask you sort of the flip side of the questions that I think we were putting to the government, which is, let's take the three categories.

[00:53:47] Speaker 11:
As I understood your argument, your argument is that an 1182F proclamation can never go to visa issuance.

[00:54:00] Speaker 11:
So that no matter what,

[00:54:02] Speaker 11:
The Secretary of State has to process visa applications and issue visas in the face of an 1182 F proclamation, even if the president just decides in the proclamation and makes it as clear as day.

[00:54:17] Speaker 11:
that there can't be any visa issuance during the time that this proclamation is in effect because I see the problem of confusion that the government highlights.

[00:54:29] Speaker 11:
And I also think there's a sufficient unlikelihood that the issue that's leading me to issue the proclamation to begin with is going to be resolved.

[00:54:38] Speaker 11:
And so I don't want visas to be issued.

[00:54:41] Speaker 11:
You think that just can't happen under 1182F or do you think it can't?

[00:54:48] Speaker 13:
Your honor, that would be category one.

[00:54:51] Speaker 13:
And our answer would be no.

[00:54:54] Speaker 13:
It's not as if we can interfere with the president's authority under 1180 CF, but that extends to entry.

[00:55:03] Speaker 13:
And if we were to fall into bucket three on the discretion, and if there was indication in section, please exercise your discretion because this temporary suspension on entry is going to last

[00:55:14] Speaker 13:
for the foreseeable future.

[00:55:16] Speaker 13:
And assuming that deference was granted to the president, that would be really category three, which I think would just where our position is.

[00:55:25] Speaker 11:
It's not as if- But if, then you think that it's at least, that at least as a matter of discretion, the secretary of state, and I assume that would have to be the president, could decide not to issue visas during an 1182F proclamation.

[00:55:43] Speaker 13:
It's not about issuance, it's about eligibility, right?

[00:55:47] Speaker 13:
And I think that's a distinction.

[00:55:50] Speaker 11:
Okay, but if somebody's ineligible for a visa, then the visa can't be issued.

[00:55:56] Speaker 13:
Right, and I do not believe the president can, in his authority, to restrict the entry of a non-citizen and declare that suspension of entry an ineligibility for a visa.

[00:56:11] Speaker 11:
then what is the discretion then?

[00:56:14] Speaker 11:
You're saying there is no discretion with respect to visa.

[00:56:19] Speaker 11:
It only has to do with entry.

[00:56:20] Speaker 11:
There's just no discretion to stop visas under 1182F.

[00:56:26] Speaker 13:
Not in 1182F.

[00:56:29] Speaker 13:
I think the Secretary of State as an executive cabinet member has his own discretionary powers and the government has

[00:56:38] Speaker 13:
provided the authority for that.

[00:56:40] Speaker 13:
I think it's 236.

[00:56:41] Speaker 13:
To do what?

[00:56:44] Speaker 03:
The visa can only be denied on a basis stated in law, in statutes or regs.

[00:56:53] Speaker 03:
So if 1182F doesn't shut down the visa processing, what else would?

[00:57:03] Speaker 03:
The premise of your argument is that but for the 1182F order, all of your clients were entitled to have their visas adjudicated and would have been held to be eligible.

[00:57:18] Speaker 13:
Right.

[00:57:19] Speaker 13:
You cannot rely on 1182F.

[00:57:21] Speaker 13:
We have no discretion.

[00:57:23] Speaker 13:
We must stop.

[00:57:25] Speaker 03:
So your answer to the chief's question is there is no president does not have

[00:57:32] Speaker 03:
an 1182F hour to shut down visa processing, period, full stop.

[00:57:38] Speaker 03:
That's correct.

[00:57:39] Speaker 03:
It had nothing to do with discretion.

[00:57:40] Speaker 03:
That's correct.

[00:57:43] Speaker 13:
And let me give you a real-world example of how that had happened.

[00:57:47] Speaker 13:
And that was in 2021 in the Kinsey case where there was a 14-day suspension on entry if you were from a designated country.

[00:57:56] Speaker 13:
And if the government's position were right and they had to shut down all issuers, that nobody

[00:58:01] Speaker 13:
would have been able to, you know, go to a safe third country for 14 days and then effectuate an entry.

[00:58:10] Speaker 13:
And that's what happened.

[00:58:12] Speaker 11:
And when that's not, I don't, I don't think that's the issue respectfully because there definitely could be situations in which it makes little sense.

[00:58:21] Speaker 11:
to stop the issuance of visas.

[00:58:23] Speaker 11:
There could be.

[00:58:25] Speaker 11:
If it's a short time horizon, if it's likely the issue that gives rise to the bar on entry is likely to be rectified, then I think the President and Secretary of State could well decide as a matter of common sense and discretion to continue the process of

[00:58:42] Speaker 11:
of considering an issuing visas.

[00:58:45] Speaker 11:
But it seems to me there's also a flip side situation in which it could well be that it doesn't make a lot of sense to continue processing and issuing visas for all kinds of reasons.

[00:58:55] Speaker 11:
But you think that scenario just can't happen, that it's just not within the president's ambit to stop not just entry, but also the antecedent to entry, which is the issuance of a visa.

[00:59:05] Speaker 11:
That's just not something that exists, period.

[00:59:10] Speaker 13:
It's not the statutory text.

[00:59:12] Speaker 13:
And the statutory text speaks specifically to entry.

[00:59:15] Speaker 13:
And then there are other provisions that speak to admission and eligibility for visas.

[00:59:20] Speaker 13:
And that runs throughout the INA.

[00:59:23] Speaker 13:
The Supreme Court has recognized that.

[00:59:26] Speaker 11:
And why doesn't the statutory text that says, or impose on the entry of aliens any restrictions he may deem to be appropriate?

[00:59:33] Speaker 11:
And before you answer, well, that says entry, it seems to me it is a restriction related to entry.

[00:59:42] Speaker 11:
to restrict the visa in the first place.

[00:59:46] Speaker 11:
Right.

[00:59:47] Speaker 13:
And I think I should back up.

[00:59:48] Speaker 13:
If you look at 1201, it presupposes that someone who's issued a visa does not always fluctuate an entry, and that there are two different things.

[00:59:59] Speaker 13:
Because 1201H and 1201E, you have to surrender that visa

[01:00:05] Speaker 13:
and you can be denied an entry, even with a visa.

[01:00:08] Speaker 13:
So a visa does not guarantee that you are allowed to entry.

[01:00:11] Speaker 13:
And so we can give effect to all the words in the statute, entry, admission, and eligibility for a visa.

[01:00:17] Speaker 13:
And because we can, under the statutory textual analysis, we should give effect to those words.

[01:00:25] Speaker 13:
Does Congress use them?

[01:00:27] Speaker 11:
Congress also wanted to give the president a lot of authority.

[01:00:32] Speaker 13:
There is no question that the president has

[01:00:36] Speaker 13:
a wide authority under 1182 F to restrict entry.

[01:00:40] Speaker 13:
But that is not this case.

[01:00:43] Speaker 13:
This case is about eligibility for visas.

[01:00:47] Speaker 03:
And those in eligibility for visas, not something within 1182 F. Can I ask on the arguments pro and con for assuming it's mandatory or prohibitory?

[01:01:03] Speaker 03:
So you have

[01:01:04] Speaker 03:
Best argument on your side is the structural one, about 1182A versus 1182F.

[01:01:13] Speaker 03:
But the tough point for your side of the case is history.

[01:01:21] Speaker 03:
We have 100-year history of visa issuances.

[01:01:26] Speaker 03:
So can you cite me a single case in American history

[01:01:33] Speaker 03:
pre or post INA where a consular officer has said, I think there's some reason why this applicant is ineligible to enter, is excludable, but I am going to issue a visa nonetheless.

[01:02:02] Speaker 03:
I'm not sure it's ever happened.

[01:02:11] Speaker 13:
No.

[01:02:13] Speaker 13:
I'm not aware if I could certainly do more homework on that.

[01:02:15] Speaker 13:
But I mean, that presents the novel question that this court is considering today and that every court below it has considered as well and come out on the side of the plaintiffs in this case, which is it's presented here.

[01:02:29] Speaker 13:
Because what we had was, for the first time, something revealed, which was our reading clues us

[01:02:38] Speaker 13:
from processing visas.

[01:02:39] Speaker 13:
And that was not an issue that has arisen before.

[01:02:42] Speaker 13:
And just because it's a novel issue doesn't mean that the court should ignore the plain statutory tax.

[01:02:47] Speaker 03:
No, but I mean, if you have a hundred year history of visa, we're talking about visas, right?

[01:02:57] Speaker 03:
That's very strangely not a defined term in the INA, which defines a lot of terms, but there we are.

[01:03:06] Speaker 03:
So we look to its ordinary meaning, maybe it's a term of art in immigration law, we look to the immigration law term of art context, and we look at that, you find a hundred years of understanding that the purpose of the visa is to screen out individuals who are ineligible to enter.

[01:03:33] Speaker 03:
That's what a visa is.

[01:03:42] Speaker 13:
But it's not a guarantee.

[01:03:44] Speaker 13:
And in our system, Congress has designed.

[01:03:46] Speaker 03:
It's not a guarantee because you have a system of two screens.

[01:03:51] Speaker 03:
You're saying the opposite.

[01:03:54] Speaker 03:
Eligibility for entry is a necessary condition of getting a visa.

[01:04:02] Speaker 03:
That's a different proposition from saying that getting a visa is a sufficient condition to enter.

[01:04:10] Speaker 13:
What I'm saying is,

[01:04:11] Speaker 13:
We have a system, you know, 100-year history, where Congress designed this system such that eligibility for a visa, admissibility, bootability are different things, and they have different meanings.

[01:04:25] Speaker 13:
And throughout the amendments to the INA, since it's, I guess, seminal statute in 1952 until today, 1182F has at least for the most part kept the word entry, and Congress has made the distinction

[01:04:41] Speaker 13:
when that's recognized by the Supreme Court that an entry and an issuance of a visa are two different things.

[01:04:47] Speaker 03:
They are unquestionably different to the extent that they're done at different times and by different executive officials.

[01:05:01] Speaker 03:
But I can't find a single example where, I can't find a single example that defeats the proposition that at the visa,

[01:05:12] Speaker 03:
Admissibility is a necessary but not sufficient condition for getting the visa on the front end.

[01:05:22] Speaker 13:
No, because it can shift.

[01:05:24] Speaker 13:
It can shift both ways.

[01:05:26] Speaker 13:
And you want to have those different spheres.

[01:05:29] Speaker 13:
Someone could be issued a visa and it's valid for six months.

[01:05:33] Speaker 13:
Something could happen that could make them inadmissible.

[01:05:38] Speaker 13:
So it doesn't always happen on the front end either.

[01:05:40] Speaker 13:
And that's why the statute is in Congress smartly.

[01:05:44] Speaker 13:
As in 1201H, when you go and you present yourself for entry, you may have satisfied the conditions preceded.

[01:05:51] Speaker 13:
That does not mean you're coming in.

[01:05:53] Speaker 13:
And so the argument for the plaintiffs in this case is that the statutory text can be read plainly and unambiguously.

[01:06:05] Speaker 13:
And it means different things.

[01:06:07] Speaker 13:
There's no room for the government to rewrite certain provisions to mix in the work.

[01:06:17] Speaker 13:
And that's our position.

[01:06:18] Speaker 03:
No, I understand.

[01:06:19] Speaker 03:
And you might win on the structure of 1182F.

[01:06:25] Speaker 03:
But if you're asking us to upset 100-year understanding,

[01:06:32] Speaker 03:
not necessary, that makes it harder to accept that reading of text.

[01:06:37] Speaker 13:
And I can understand that, but if Congress was right for a hundred years, it was being implemented wrong.

[01:06:46] Speaker 13:
It doesn't make it right.

[01:06:49] Speaker 03:
Was there anything, do you know, was there anything in pre INA practice like the 1182 F proclamation

[01:07:01] Speaker 03:
Right?

[01:07:02] Speaker 03:
Which on your view is this one really special thing that governs entry but not visa issuance.

[01:07:08] Speaker 03:
Is there anything like that in, if I care about the history and look pre-1952?

[01:07:13] Speaker 03:
You know, hard question.

[01:07:21] Speaker 03:
I didn't see anything in the briefs one way or the other.

[01:07:26] Speaker 13:
I don't because I don't think we had it.

[01:07:28] Speaker 13:
complete structure of immigration laws prior to it being codified.

[01:07:31] Speaker 13:
And actually, I think there was a federalist tension between states and the federal government about who was being allowed to enter.

[01:07:38] Speaker 13:
And then that shifted over.

[01:07:42] Speaker 13:
So I don't.

[01:07:42] Speaker 13:
Sorry.

[01:07:44] Speaker 11:
Can I ask you a question on the elementary 2F issue?

[01:07:48] Speaker 11:
You don't have to win, I don't think, but correct me if I'm wrong.

[01:07:55] Speaker 11:
You don't have to be right that the statute never allows for the exercise of discretion to stop visa issuance in order to prevail because it could be that the statute does allow that, but here there was no exercise of discretion.

[01:08:14] Speaker 11:
Here, the assumption was that the 1182F order automatically as a matter of law means there can't be visa issuance.

[01:08:22] Speaker 11:
And that's just by hypothesis.

[01:08:25] Speaker 11:
The government obviously has counter argument, but by hypothesis, that's just an erroneous interpretation of 1182F.

[01:08:31] Speaker 11:
And therefore the orders of the policy guidances that are under challenge can't be sustained.

[01:08:41] Speaker 13:
That's exactly right.

[01:08:42] Speaker 13:
That was the point I was trying to make in the beginning.

[01:08:44] Speaker 13:
And I obviously did not do a good job of that.

[01:08:46] Speaker 13:
But the argument was it's not about discretion in this case.

[01:08:50] Speaker 13:
This case was we are precluded from exercising discretion because this statute makes us shut off.

[01:08:58] Speaker 13:
These are possible.

[01:09:04] Speaker 03:
One other textual clue, which is we're

[01:09:08] Speaker 03:
This comes from the INA definitions.

[01:09:10] Speaker 03:
We're talking about immigrant visas, which is a defined term and it requires the recipient to be eligible immigrant.

[01:09:20] Speaker 03:
I think it's reasonable to say that an alien who is subject to an 1182F exclusion order is an eligible immigrant.

[01:09:36] Speaker 03:
while the 1182F order remains in effect?

[01:09:42] Speaker 03:
Immigrant surely implies, to be an immigrant that surely implies entry.

[01:09:51] Speaker 03:
You can't immigrate to the United States without entering the United States.

[01:09:56] Speaker 13:
Granted an immigrant visa and be deemed eligible for that without effectuating an entry.

[01:10:02] Speaker 13:
In fact, you have six months from the date of issuance of a visa,

[01:10:05] Speaker 13:
in most cases to actually immigrate.

[01:10:07] Speaker 13:
And in fact, there are some people who are granted an immigrant visa who choose not to immigrate.

[01:10:12] Speaker 13:
And so your eligibility.

[01:10:14] Speaker 03:
Sure.

[01:10:14] Speaker 03:
But eligibility means you satisfy all the legal requirements for getting the document or the status.

[01:10:23] Speaker 03:
And an alien under an 1182 F order is not eligible in that sense.

[01:10:30] Speaker 13:
That I disagree.

[01:10:32] Speaker 13:
And that is where the statute runs into tension with that argument, because 1182F and 1201B do not talk.

[01:10:44] Speaker 13:
They talk in different spheres.

[01:10:46] Speaker 13:
And so when we're talking about eligibility, and it's either 1182A, which talks about in admission and eligible for visas or other specific provisions where people are subjected to errors and bars and stuff like that.

[01:11:00] Speaker 13:
When we're talking about eligibility for an immigrant visa,

[01:11:02] Speaker 13:
And we're talking about a diversity visa.

[01:11:05] Speaker 13:
You have to satisfy certain requirements.

[01:11:07] Speaker 13:
You have to make an application.

[01:11:08] Speaker 13:
You have to satisfy an educational background.

[01:11:10] Speaker 13:
That is where that eligibility for a visa and application comes from.

[01:11:22] Speaker 13:
If there are no more questions, I will turn it back.

[01:11:25] Speaker 11:
I just have one question.

[01:11:27] Speaker 11:
I believe that you're handling the reservation issue too, the reservation of visas issue also.

[01:11:32] Speaker 11:
That's great.

[01:11:34] Speaker 11:
If we take out of the field of play Al McCrombie, and let's just, I know you resist this, but let's just assume for argument's purposes that we accept the government's argument that actually that case was only about

[01:11:49] Speaker 11:
The jurisdictional question that didn't go to the merits it just, it just decided that there was an unfairness argument, and then it sent it back and now on the merits issue it hasn't been resolved yet.

[01:11:59] Speaker 11:
Then, what's wrong with the government's position that under the statute the statute doesn't speak in terms of.

[01:12:07] Speaker 11:
a limitation on administrative agency action.

[01:12:11] Speaker 11:
It just speaks in terms of eligibility.

[01:12:15] Speaker 11:
And it just says that eligibility ceases at the end of the fiscal year.

[01:12:18] Speaker 11:
And there's just nothing that anybody can do about it, whether it's a court, whether it's the secretary, it doesn't matter.

[01:12:23] Speaker 11:
But for obviously a subsequent legislation that creates a one-time CARVA, the statute just says what it says.

[01:12:32] Speaker 11:
Right.

[01:12:33] Speaker 13:
But we're talking about separation of powers, as the government said.

[01:12:36] Speaker 13:
And there's a branch, Article 3, that gives federal courts the power, the equitable authority to effectuate remedies and make remedies where the law does not provide an adequate remedy.

[01:12:46] Speaker 13:
And the appropriations cases in this case, in this court, is a good one.

[01:12:51] Speaker 13:
And I found one.

[01:12:53] Speaker 13:
I was looking at that, actually, last night.

[01:12:55] Speaker 13:
And they talk about that where there's sometimes where a court to effectuate a remedy has to use its inherent authority.

[01:13:01] Speaker 13:
And if the case is brought prior to a lapse or prior to a statutory deadline, then the courts have that authority.

[01:13:08] Speaker 03:
Those are the best cases for you on this point.

[01:13:14] Speaker 03:
And we have at least three pretty major pronouncements from the Supreme Court in the last 20 years or so.

[01:13:25] Speaker 03:
in Panaglinian, Rupel Mexicano, Oakland Cannabis.

[01:13:32] Speaker 03:
I'm sure there are more saying that equity is not licensed to ignore statutes.

[01:13:38] Speaker 13:
It's certainly not.

[01:13:39] Speaker 13:
And if this, and if the case just doesn't, and Jillian, I'm saying that right.

[01:13:44] Speaker 13:
If, and just like in the Seventh Circuit case in Shahi, if the plaintiffs had brought this case after the statutory deadline,

[01:13:53] Speaker 13:
the courts at that point, maybe their equitable authority stopped, as courts have said.

[01:13:57] Speaker 13:
But because it was brought when it was, and the relief was granted prior to the deadline, courts are all on the side of the plaintiff.

[01:14:04] Speaker 13:
Statute says- What in the statute- Go ahead.

[01:14:09] Speaker 11:
What in the statute draws that, enables drawing that distinction based on when the case was brought?

[01:14:18] Speaker 13:
The statute is not a jurisdictional, does not speak to the,

[01:14:22] Speaker 13:
equitable authority of court speaks to eligibility.

[01:14:26] Speaker 13:
And so here we have is if if there's been a violation of law that has been and there's an order of a court.

[01:14:36] Speaker 13:
That is, it's not, that's not the statute that the district courts are relying on in this case.

[01:14:41] Speaker 13:
They're relying on its inherent equitable authority, which is from the constitution that a court has hours under law and equity to

[01:14:48] Speaker 13:
I mean, I'm paraphrasing, right, wrongs, and to provide effective relief.

[01:14:52] Speaker 11:
Right, but that could be the case even after the fiscal year elapsed, if the claim were brought later, right?

[01:14:59] Speaker 11:
I mean, but I think you just said that if the claim is brought after the fiscal year elapses, then the plaintiff is out of luck.

[01:15:05] Speaker 11:
And I'm just wondering, what is it in this, maybe it doesn't come from the statute, but is there something in the statute that says that that line is one that courts should draw, or is that line coming from somewhere else?

[01:15:20] Speaker 13:
I mean, courts, when it's looking at its equitable powers, have made that distinction.

[01:15:27] Speaker 13:
As a matter of equity, that's a matter of equity.

[01:15:31] Speaker 13:
I hate to get into equitable principles, but it may be stemmed from latches, so that if you sat on your right and did not bring it in time, then the court should not then bend the equity principles and use its authority that way.

[01:15:44] Speaker 13:
Certainly not the case here.

[01:15:44] Speaker 13:
And I don't mean to concede the point that maybe that Justice de Broek was

[01:15:49] Speaker 13:
right or wrong.

[01:15:49] Speaker 13:
I'm just arguing for our case today.

[01:15:52] Speaker 11:
And you don't resist the notion that you started with separation of powers, but of course Congress could enact a statute that's sufficiently clear that would preclude the issuance of relief after the lapse of the fiscal year.

[01:16:16] Speaker 04:
Certainly, certainly could.

[01:16:19] Speaker 13:
But that does not mean that federal courts under Article 3 also do not share a balance of powers, and that they have equity authority to do what they have.

[01:16:30] Speaker 03:
Or it could enact the statute clearly allowing courts to leave open funds that would otherwise lapse, which they actually did in 1982.

[01:16:49] Speaker 03:
So any of our post-1982 appropriations cases don't really help.

[01:17:01] Speaker 13:
But the one from, there's one I can't believe in 1977 that does.

[01:17:06] Speaker 13:
Yeah.

[01:17:07] Speaker 13:
And that's the one that, you know, and that's why we're here.

[01:17:09] Speaker 13:
I mean, and I think there's a great point that the Chief Judge made about the Supreme Court review because that's where Article 3 starts and maybe where it needs to end where we would not have that ability.

[01:17:20] Speaker 13:
And again, there's, you know, of course, other, I guess, judicial authority, statutes, all Ritz Act, but the equitable authority of the court that's inherent or exempt from the Constitution properly exercised here.

[01:17:39] Speaker 03:
We have a couple of cases, 382, which help you, but that was an era when

[01:17:48] Speaker 03:
Supreme Court and this court were somewhat looser in how we read statutes and remedies in a different context.

[01:17:58] Speaker 03:
And then we have three more recent Supreme Court decisions, including one in the immigration context telling us just spot on, you can't use an equitable power to override statutory limits.

[01:18:15] Speaker 13:
I understand that, but that, the context, and let me talk about Pangelian first, because that case was actually being, that was discussed in one of the first cases where this reservation of visas was addressed.

[01:18:28] Speaker 13:
And then there, again, there was a specific statute by which the applicants or beneficiaries had to act, and they didn't.

[01:18:36] Speaker 13:
They waited years.

[01:18:37] Speaker 13:
And in the context of citizenship, actually, Supreme Court and the Constitution is very clear.

[01:18:44] Speaker 13:
about who gets to deem someone a citizen or not.

[01:18:46] Speaker 13:
We're not talking about citizenship here today.

[01:18:49] Speaker 13:
We're talking about court-secretive authority for people who brought claims prior to a deadline that is not jurisdictional and where a court has used its inherent authority to make a remedy where otherwise it would not be one.

[01:19:09] Speaker 13:
And in fact, the government in

[01:19:12] Speaker 13:
Tom Rukwami, I guess its other name, TKV Tillerson, actually conceded that issue.

[01:19:19] Speaker 13:
And they said courts had that authority.

[01:19:22] Speaker 13:
Today, and in this case, they obviously have that right to change their position.

[01:19:26] Speaker 13:
But again, the court's equitable authority is something that both sides have recognized.

[01:19:36] Speaker 10:
Let me see if my colleagues have any additional questions for you.

[01:19:39] Speaker 10:
I'm sorry, Judge.

[01:19:42] Speaker 03:
Thank you.

[01:19:43] Speaker 10:
Thank you, Council.

[01:19:46] Speaker 14:
We'll hear from Mr. Arena now.

[01:20:12] Speaker 14:
Both in Gomez and Goodluck, the court found that both the March 2020 and November 2020 prioritization scheme, termed by the court as no visa policies, implemented pursuant to PP10014 were arbitrary.

[01:20:25] Speaker 03:
Sir, could you tuck in the mic?

[01:20:27] Speaker 03:
I'm having a little trouble hearing you.

[01:20:28] Speaker 14:
The district court found that the department failed to account for the fact that those policies on diversity visa applicants were premised on quality interpretations of 1182F.

[01:20:40] Speaker 14:
The government today challenges those decisions.

[01:20:43] Speaker 14:
Committed, they state that the government begins this challenge on an expansive reading of 22 USC 2651A.

[01:20:51] Speaker 14:
They argue that this statute gives the secretary limitless discretion to administer the State Department as they see fit.

[01:20:58] Speaker 14:
Therefore, the actions taken pursuant to that authority granted in the statute are unrevealable.

[01:21:03] Speaker 14:
But this expansive reading of 265.1 does not square with the statute, clearly sets confines on the secretary's administration of the department to the laws of the United States as implemented by the INA.

[01:21:17] Speaker 14:
This reading also does not square with the basic presumption of review in APA cases.

[01:21:22] Speaker 14:
The government has offered no compelling reason here to create an exemption.

[01:21:28] Speaker 03:
What about consular non-reviewability?

[01:21:32] Speaker 03:
This is all about issuance of visas by consular officers.

[01:21:40] Speaker 03:
If the consular officer had denied your client's visas based on the proclamation, based on priorities, based on anything, no judicial review.

[01:21:53] Speaker 14:
There's no denial of a visa here.

[01:21:55] Speaker 14:
I'm sorry?

[01:21:56] Speaker 14:
There is no denial of visas at issue here.

[01:21:58] Speaker 14:
There was no determination by the State Department of State to deny a visa by a consular officer.

[01:22:06] Speaker 03:
This case is all about denial of visas based on the government's view of 1182F and its creating priorities.

[01:22:20] Speaker 03:
And for the life of me, I don't understand the district court's distinction between

[01:22:26] Speaker 03:
district court said, well, if the government had denied the visas, no judicial review.

[01:22:34] Speaker 03:
But in fact, they just

[01:22:36] Speaker 03:
didn't process the visas because they thought they were legally prohibited from issuing visas.

[01:22:43] Speaker 03:
That's correct.

[01:22:44] Speaker 03:
What is that other than a denial of a visa?

[01:22:47] Speaker 14:
Well, it's a broad stroke conclusion of finding of ineligibility, but that's not what a visa refusal is.

[01:22:53] Speaker 14:
A visa refusal is a decision by a consular.

[01:22:57] Speaker 14:
at the time of application to refuse the visa and then that's set forth in statute on how an application for a visa is made.

[01:23:04] Speaker 03:
Suppose an individual consular officer had denied a visa saying 1182f prohibits me from issuing it.

[01:23:13] Speaker 14:
Unreviewable.

[01:23:14] Speaker 14:
I'm sorry.

[01:23:14] Speaker 14:
That would be unreviewable on their on their consular non-reviewability.

[01:23:18] Speaker 14:
That's correct but that's not what happened here.

[01:23:20] Speaker 14:
So if

[01:23:21] Speaker 14:
I had a client who brought a claim before this court saying that the 1182f refusal was in fact unlawful.

[01:23:28] Speaker 14:
This court would not have an authority to do that.

[01:23:30] Speaker 14:
But we're challenging an implementation of an executive order.

[01:23:35] Speaker 14:
That's what's a challenge here, not the actual refusal of a visa.

[01:23:40] Speaker 03:
But the only bite any of this has for your clients is that they didn't get visas.

[01:23:51] Speaker 14:
Well, they didn't get an opportunity to apply for a visa.

[01:23:53] Speaker 14:
They were precluded the processing of their visa application.

[01:23:57] Speaker 03:
That's really what's... Which would have been denied based on 1182F.

[01:24:03] Speaker 14:
And that would be unrevealable.

[01:24:05] Speaker 14:
But there was some waivers put in place that would perhaps given them the right to have a visa under the implementation of

[01:24:17] Speaker 14:
PP10014 and both of PP9984 and the travel gap.

[01:24:23] Speaker 14:
So it's not necessary that they would not have received.

[01:24:27] Speaker 03:
Fair enough.

[01:24:27] Speaker 03:
But then the adjudication, whether or not the waiver applies would be unreviewable.

[01:24:36] Speaker 03:
As to this specific one.

[01:24:38] Speaker 13:
Right.

[01:24:40] Speaker 03:
Yeah.

[01:24:43] Speaker 03:
I mean, it just seems odd.

[01:24:46] Speaker 03:
I take your point that there is potentially a difference between the individual decision to deny the visa and a guidance document addressed to visas writ large.

[01:25:05] Speaker 03:
Maybe that makes a difference.

[01:25:07] Speaker 03:
You know, there are... McNary is an immigration case where, you know, individual decision versus policy mattered, but that's because there was something in the statute.

[01:25:16] Speaker 03:
I think it was the word determination.

[01:25:19] Speaker 03:
What is in this scheme that would cause us to think that even though any individual denial of a visa is unreviewable, we should nonetheless

[01:25:33] Speaker 03:
um, get into the reasoning of a guidance document that has no purpose other than to, um, guide discretion in the granting or denial of visas.

[01:25:47] Speaker 14:
Well, because there's meaningful standards in which to, um, review that decision by the, uh, by the secretary and those meaningful standards are found in the INA.

[01:25:59] Speaker 14:
So,

[01:26:00] Speaker 14:
we can look at those.

[01:26:01] Speaker 14:
The INA is a finely reticulated regulatory scheme governing the visa allocations, availability, and adjudication of visas.

[01:26:11] Speaker 14:
This isn't going beyond the actual adjudication, the processing of the visa.

[01:26:16] Speaker 03:
Maybe for the 1182F piece of your argument, right?

[01:26:22] Speaker 03:
You got two potential problems.

[01:26:23] Speaker 03:
One is that all of this

[01:26:25] Speaker 03:
ultimately goes to visas and therefore into consular non-reviewability.

[01:26:30] Speaker 03:
The other is no legal standards, right?

[01:26:32] Speaker 03:
So you're right.

[01:26:34] Speaker 03:
The 1182F argument does not bump up against the no law to apply principle.

[01:26:41] Speaker 03:
It might bump up against consular non-reviewability, but we've talked about that.

[01:26:46] Speaker 03:
But why doesn't, insofar as you're challenging the guidance documents, the prioritization,

[01:26:54] Speaker 03:
What law do we have to apply to when the agency has all these different visa programs that they have to administer and they're making decisions, they're prioritizing things in the middle of a once in a generation catastrophe?

[01:27:16] Speaker 03:
Right.

[01:27:17] Speaker 14:
So we can look to the statutory expiration of the visa.

[01:27:24] Speaker 14:
And this is kind of the middle of the road where you and the chief judge have been speaking to is that if they have some sort of discretion here about whether to process visas or not.

[01:27:37] Speaker 14:
So then they would be, whether there was a rational connection of what the determination made by the secretary and that decision not to process visas would be the law to apply and would be this 1154 statutory expiration of the visa.

[01:27:50] Speaker 14:
So the court can look to whether

[01:27:52] Speaker 14:
the decision made by the secretary was rational given that explanation.

[01:27:58] Speaker 14:
There's also the section 1202B, which states that all immigrant visas must be adjudicated before a consular officer.

[01:28:09] Speaker 03:
And then in addition to that... Yeah, so that's fair.

[01:28:15] Speaker 03:
That is law to apply.

[01:28:18] Speaker 03:
And I guess I'm...

[01:28:22] Speaker 03:
Premising my question on your having lost on that question.

[01:28:28] Speaker 03:
If we adopt Judge Nichols reading of 1202B, so you don't have a mandatory duty to process, you know, akin to something enforceable through mandamus.

[01:28:42] Speaker 03:
And then you're just back to the APA.

[01:28:45] Speaker 03:
Will we use the APA as a vehicle for assessing

[01:28:50] Speaker 03:
how the agency prioritizes.

[01:28:52] Speaker 14:
If this court were to adopt Judge Nichols' reasoning that it was, I believe, he used putting an elephant through the eye of the needle in that decision, right?

[01:28:59] Speaker 14:
So if we adopt that, there's also the agency policies themselves, which could be law to apply in this case.

[01:29:05] Speaker 14:
The FAM is also a very intricate body of policies and memorandas to run the State Department.

[01:29:16] Speaker 14:
So we can use government policies themselves also

[01:29:19] Speaker 14:
to review the decision by the secretary.

[01:29:22] Speaker 14:
The INA is one of the most expansive acts that Congress has passed.

[01:29:30] Speaker 14:
It sets out.

[01:29:31] Speaker 03:
No doubt.

[01:29:32] Speaker 03:
No doubt.

[01:29:32] Speaker 03:
But what in the INA guides Secretary of State's assessment of whether diversity visas are more or less important than other kinds of visas in the context of

[01:29:48] Speaker 03:
the situation on the ground in March 2020.

[01:29:50] Speaker 14:
1151 states out the worldwide levels of immigration.

[01:29:54] Speaker 14:
So Congress set out some intent to have a certain amount of immigrants enter the United States every year.

[01:29:59] Speaker 14:
But we can look to what Congress intended for the immigrant states.

[01:30:04] Speaker 14:
Do you think that's a floor as well as a ceiling?

[01:30:09] Speaker 14:
I think so.

[01:30:10] Speaker 14:
But at the very least, it's an intent that Congress said that the Secretary should make good-faith efforts to allocate these visas and make them available to intending immigrants.

[01:30:21] Speaker 03:
The level word is good for you in E, but in A, the statute talks about a number not to exceed.

[01:30:30] Speaker 14:
55,000 sounds like it's just a seal.

[01:30:33] Speaker 14:
But there's something that's for interpretations in appropriation bills in training in New York, where they say that statutory construction, in fact, means that they should allocate those availability of those those visas.

[01:30:51] Speaker 14:
If the court doesn't have any more questions on that, I'll turn to the great remedy.

[01:30:59] Speaker 14:
The government challenges the rate remedy turns on a single issue, whether 5 USC 705 permits a court to provide relief to nonparties when justice so requires.

[01:31:10] Speaker 14:
The plain language of section 705 grants the power to issue all necessary and appropriate relief.

[01:31:15] Speaker 14:
The court's inquiry then must turn to what happens when agency action, and more importantly, unlawful agency action is invalidated.

[01:31:23] Speaker 14:
The court's inquiry then turns to the type of action challenged.

[01:31:27] Speaker 14:
The Ray suit does not involve a challenge of lawful policy applied unlawfully to a single group of visa applicants, rather but a challenge to the policy itself.

[01:31:38] Speaker 14:
In Ray, plaintiffs sued challenging the unlawful cessation of processing issuance of diversity visas pursuant to PP9984,

[01:31:48] Speaker 14:
Those were COVID suspensions, quarantine suspensions.

[01:31:54] Speaker 14:
These proclamations precluded the entry into the United States of individuals who were in certain regions of the world for 14 days prior to their application for admission to the United States.

[01:32:04] Speaker 14:
Pursuant to those policies, the department ceased processing of diversity visa applications of affected visa applicants.

[01:32:12] Speaker 14:
When plaintiffs prevailed on their motion for preliminary injunction against the policies implementing those proclamations,

[01:32:18] Speaker 14:
The court forbade the policy's application not just to plaintiffs, but all diversity visa applicants injured by the agency's illegal actions.

[01:32:27] Speaker 14:
Therefore, those plaintiffs were likely to prevail on a claim that could provide remedy of pro-romantic relief.

[01:32:33] Speaker 14:
that affects the rights of nonparties.

[01:32:36] Speaker 14:
The logical extension is that under such circumstances, the court would need to maintain the status quo for nonparties and preserve the eligibility for visas to those nonparties.

[01:32:47] Speaker 14:
Therefore, the remedy is proper.

[01:32:51] Speaker 14:
And to support that, we turn to the Lujan versus National Wildlife Federation, Blackburn's dissent.

[01:33:00] Speaker 14:
And then

[01:33:01] Speaker 14:
Lastly, you turn to the philosophical standing issue.

[01:33:04] Speaker 14:
Uh, the philosophical plaintiffs did not have standing under the claims they brought, but they did have standing under the theories brought by other cases consolidated in that the court submerged the cases and the common causes of action for all purposes on the federal rule, civil procedure 42 a two 42 a three and

[01:33:25] Speaker 14:
That states that this discourse enjoys substantial discretion in deciding whether and what to what extent consolidate cases may therefore there's all the cases for all purposes in appropriate service.

[01:33:36] Speaker 14:
I reserve my time.

[01:33:41] Speaker 10:
Thank you, counsel.

[01:33:45] Speaker 10:
This Alston Berg will start by giving you five minutes for your about.

[01:34:25] Speaker 08:
I'd like to start by clarifying a point regarding the State Department's interpretation of 1182-F that might also help shed light on some of the hypotheticals discussed earlier.

[01:34:37] Speaker 08:
The State Department has no discretion to issue visas absent explicit direction from the President in an 1182F proclamation.

[01:34:45] Speaker 08:
Without that language, the State Department and the plain language of 1182F and 1201G read together prohibit the State Department from issuing visas.

[01:34:56] Speaker 08:
The President can make the scope of a proclamation and determine that scope regarding visa issuance, but that is not at issue here.

[01:35:06] Speaker 08:
And again, in Trump v. Hawaii, the proclamation at issue there was found lawful by the Supreme Court.

[01:35:14] Speaker 08:
And the way that that proclamation worked was that the State Department did not issue visas in that case.

[01:35:21] Speaker 08:
The language of Kerry v. Jinn also supports this interpretation.

[01:35:25] Speaker 11:
But that issue never came up in Trump v. Hawaii, right?

[01:35:28] Speaker 11:
There was not a question there about whether the State Department would have been right to conclude as a matter of law that it can't issue visas.

[01:35:36] Speaker 08:
There was not, but again, to the common sense point, the proclamation at issue there was about the vetting systems in place in countries that inhibit the ability for those individuals to get visas while those vetting systems were being determined, whether they had post national security risks.

[01:35:59] Speaker 08:
It would be inconsistent with that proclamation if the secretary of state was then ordered to

[01:36:06] Speaker 08:
adjudicate visas for those individuals.

[01:36:10] Speaker 08:
And Kerry Veeden states, before issuing a visa, the consular officer must ensure that the alien is not inadmissible under any provision of the INA.

[01:36:20] Speaker 08:
And again, that would include 1182F.

[01:36:22] Speaker 08:
We can look to 1201G and we can look at the language 1101A16.

[01:36:29] Speaker 08:
I'd also like to just clarify my response to Your Honor's question about the visa lookout system and the individuals.

[01:36:37] Speaker 08:
In terms of how that precisely works, it's that the name of the individual will be pinged on the State Department's list.

[01:36:44] Speaker 08:
It will be, I'm sorry.

[01:36:46] Speaker 08:
A ping shows up when that individual then is making the application for the diversity visa.

[01:36:52] Speaker 08:
So it's not the entirety of the list.

[01:36:53] Speaker 08:
It's the individuals that do make the application then show up on the State Department's list would be part of the visa lookout system and then would be identified as.

[01:37:05] Speaker 03:
So in other words, you can't name every alien subject to this proclamation and put them in the system.

[01:37:15] Speaker 03:
But what you can do is when an alien who is subject

[01:37:20] Speaker 03:
applies for a visa and then pops up on the State Department's visa system.

[01:37:27] Speaker 03:
You put that alien's name into the lookout program?

[01:37:31] Speaker 08:
Yes.

[01:37:34] Speaker 08:
In terms of equity, to respond to some of the arguments

[01:37:39] Speaker 08:
on Oakland v. Cannabis, for example.

[01:37:42] Speaker 08:
That case stands to the proposition that equitable authority stops where Congress has spoken.

[01:37:47] Speaker 08:
1154A makes it clear Congress has spoken.

[01:37:51] Speaker 08:
Eligibility ends at the end of the fiscal year.

[01:37:54] Speaker 08:
And courts have no equitable authority to extend it.

[01:37:58] Speaker 08:
So even if the court has equitable authority to reserve visas beyond the fiscal year end, it cannot extend to select these eligibility.

[01:38:06] Speaker 08:
There would be no one to issue those reserved visa numbers to.

[01:38:11] Speaker 08:
And indeed, expansive equitable arguments being made pose a larger question of where exactly would that equity end?

[01:38:28] Speaker 08:
Lastly, with regards to the points on prioritization, standing, and the 966 number ordered by the court in Ray, the prioritization, plaintiffs have argued that the fiscal year statutory deadline should weigh heavily in the secretary's exercise of discretion on allocating consular resources.

[01:38:51] Speaker 08:
but more heavily than family-based immigration or additional United States citizen services.

[01:38:58] Speaker 08:
Congress gave the secretary the broad discretion on how to allocate those resources.

[01:39:04] Speaker 08:
You just may disagree on how the secretary exercises that discretion, but it doesn't change that authority and it doesn't change that in a circumstance like this,

[01:39:15] Speaker 08:
both under the plain language of 1202b that does not create some kind of deadline or time period in which that discretion must happened and also to the reasonable use of the secretary's resources during that time period when

[01:39:35] Speaker 08:
And continuing as consulates don't all operate at normal levels.

[01:39:40] Speaker 08:
That's what Congress gave the Secretary the discretion to have, and that's exactly what the Secretary did.

[01:39:45] Speaker 08:
The court in Ray went,

[01:39:53] Speaker 08:
far beyond the bounds of what equitable authority has already argued in general, but then beyond even that by providing relief to non-parties in the litigation, non-parties that were not before it.

[01:40:06] Speaker 08:
Even the district courts in GO and Good Luck noted that that kind of relief was far beyond it because there was no class.

[01:40:15] Speaker 08:
RAY is not a class action.

[01:40:17] Speaker 08:
Relief should not be provided to 966 diversity selectees when the RAY plaintiffs that remain were nine individuals, 27 total, including their beneficiaries.

[01:40:30] Speaker 08:
It is a very large, expansive reading on equitable authority in that case.

[01:40:36] Speaker 08:
And with regards to finding that Filozopovich plaintiff had standing, the Clinton case makes clear that prior to consolidating cases, the district court still had to find that at least one plaintiff had standing.

[01:40:51] Speaker 08:
The district court in Filozopovich found that no Filozopovich plaintiff had standing, none of them.

[01:40:58] Speaker 08:
But then nonetheless, when it came time to consolidate those additional cases, it chose to wrap.

[01:41:05] Speaker 08:
into it.

[01:41:07] Speaker 08:
With no standing, there's no jurisdiction.

[01:41:09] Speaker 08:
Those plaintiffs should not have been part of the consolidation.

[01:41:14] Speaker 11:
Can I just ask you one last question?

[01:41:17] Speaker 11:
I know you're over time, but let me just ask you one last question, at least for my purposes.

[01:41:24] Speaker 11:
on the prioritization issue.

[01:41:27] Speaker 11:
So I know that you have an argument that there's unreviewability, and I know you have other arguments too, but I just want to ask one question, which is that if we assume it's reviewable against your assumption, and we assume that the general APA standard applies that the agency can't entirely fail to consider an important aspect of the problem,

[01:41:49] Speaker 11:
I know you think the agency did consider the fiscal year deadline and must be considered to have considered it given how obvious it is and how experienced the agency is.

[01:41:56] Speaker 11:
I take that point.

[01:41:57] Speaker 11:
But you don't dispute that the fiscal year deadline is in fact an important aspect of the problem.

[01:42:04] Speaker 08:
being aware of the very statutory text.

[01:42:08] Speaker 08:
Yes, that is something to be considered.

[01:42:10] Speaker 08:
And your honor's point, the State Department is well aware of the long standing, uh, components that make up the diversity visa program, including that deadline.

[01:42:26] Speaker 10:
Make sure my colleagues have additional questions for you, Miss Alstom.

[01:42:31] Speaker 03:
So on that point,

[01:42:33] Speaker 03:
In order to rule in your favor, you have to either find the decision non-reviewable or conclude that you did consider that aspect of the problem.

[01:42:45] Speaker 08:
Find that it was reasonable and a reasonable approach pursuant to the APA standard.

[01:42:51] Speaker 08:
There's nothing that was irrational or arbitrary or capricious given the COVID-19 pandemic and the status of these consulates around the world.

[01:43:05] Speaker 08:
For all these reasons, this court should reverse the district court's order.

[01:43:12] Speaker 11:
Thank you, counsel.

[01:43:14] Speaker 11:
Thank you to all counsel in this case.

[01:43:16] Speaker 11:
We'll take it under submission.

[01:43:26] Speaker 11:
Oh, we have to hear the cross appeal, I guess.

[01:43:29] Speaker 11:
So we don't, we're not entirely taking the case under submission yet.

[01:43:32] Speaker 04:
I guess we still have the cross appeal of my mistake.

[01:43:37] Speaker 04:
We'll hear from Mr. Cook now for cross-appellants, if I've got that right.

[01:43:44] Speaker 12:
That is correct, Your Honor.

[01:43:46] Speaker 12:
Charles Cook for cross-appellants, the GO plaintiffs.

[01:43:49] Speaker 12:
Obviously, I've been sitting here for the last hour listening to the conversation.

[01:43:54] Speaker 12:
There's a couple of things that I think are important to note.

[01:43:58] Speaker 12:
Mr. Blesz is right.

[01:43:59] Speaker 12:
1182 has to be read as entry.

[01:44:04] Speaker 12:
even though it's uncomfortable for the government to admit that they have been wrong for 70 years.

[01:44:10] Speaker 12:
But just like the Supreme Court said recently in the NIS Chavez decision with Justice Korsach noting that words have meaning.

[01:44:18] Speaker 12:
And they said, yes, you've been interpreting how the notice to appear is wrong the last 27 years.

[01:44:24] Speaker 12:
This is true here.

[01:44:25] Speaker 12:
It's just wrong.

[01:44:26] Speaker 12:
It just means entry.

[01:44:27] Speaker 12:
And yes, it does in fact mean that they have to have a visa interview.

[01:44:32] Speaker 12:
This is particularly important in the DV 2021 context.

[01:44:36] Speaker 12:
The DV 2021 lottery, the notification went out to winners in March and April of 2020 during the beginning part of COVID.

[01:44:49] Speaker 12:
Individuals began to send money to the Department of State.

[01:44:53] Speaker 12:
in May, June, and July of 2020.

[01:44:57] Speaker 12:
At the same time, the Department of State is now saying they were unable to issue visas and they could never issue those visas if that proclamation was extended in infinity.

[01:45:08] Speaker 12:
And that they kept taking money from people for something they're saying they would never be able to do.

[01:45:13] Speaker 12:
This goes to the remedy I'll talk about here in a second.

[01:45:17] Speaker 12:
But why would they do that?

[01:45:19] Speaker 12:
One, because they obviously knew there would probably come a time in which this prohibition under 1182 would end.

[01:45:25] Speaker 12:
Two, the department itself has authority under its own regulations to extend already issued immigrant visas for additional time should the individual not be able to enter the United States.

[01:45:38] Speaker 12:
And in fact did so in September of 2020 for people who had received the diversity visa,

[01:45:46] Speaker 12:
prior to closure of consulates in late March of 2020, so they could enter the United States, because they had not been able to enter during the initial period with barred travel.

[01:45:56] Speaker 12:
So the reality is, yes, they need to have interviews.

[01:46:00] Speaker 12:
And yes, if an individual was denied because of 1182, that would be unreviewable.

[01:46:04] Speaker 12:
But that did not occur here.

[01:46:06] Speaker 12:
And this goes to the exact relief that Judge Mata was talking about.

[01:46:11] Speaker 12:
How do you solve a problem?

[01:46:13] Speaker 12:
Particularly for the DV 2021 plaintiff,

[01:46:16] Speaker 12:
where the government had knowingly taken money and knowingly not acted for 5 months after they had lost 5 times on the issue of the meaning of I made to 12 that 5 times they lost us.

[01:46:31] Speaker 12:
I know because I was the plaintiff's lawyer in 4 of those cases and one in particular particularly telling in the Kinsley case.

[01:46:39] Speaker 12:
which involved these applicants abroad who were barred from coming in under a separate proclamation because of COVID coming directly from countries that had COVID numbers.

[01:46:48] Speaker 12:
The court mandated the government issue those visas.

[01:46:50] Speaker 12:
Why?

[01:46:51] Speaker 12:
Because it was an option for them.

[01:46:53] Speaker 12:
In that case, they could go to a country that didn't have COVID or didn't have as bad a COVID.

[01:46:58] Speaker 12:
Here, the option is I can get an extension for six more months from the government.

[01:47:01] Speaker 12:
I can certainly do that.

[01:47:03] Speaker 12:
But what is the appropriate relief?

[01:47:05] Speaker 12:
Now, the reality is, this is complicated.

[01:47:08] Speaker 12:
It's math, right?

[01:47:09] Speaker 12:
We all went to law school, not math school.

[01:47:11] Speaker 12:
And what do we do here?

[01:47:13] Speaker 12:
Well, this year for GV 2021, the government notified a relatively high number of selectees.

[01:47:19] Speaker 12:
The number of selectees vary year by year, but they're always based upon the statistical analysis of the Department of State.

[01:47:27] Speaker 12:
They have run this lottery for 30 years.

[01:47:29] Speaker 12:
They know that their intention is to use all the visas, and they've historically used most of the visas, if not all, and at least three times they've issued more visas than were eligible over the last 30 years.

[01:47:40] Speaker 12:
So they know we need to get to this number of selectees to get to this number of visas.

[01:47:45] Speaker 12:
And they obviously calculated the fact that COVID would have an impact.

[01:47:49] Speaker 12:
So we have a very high number of selectees, a total including family of around, let's say, 130,000, a very high number.

[01:47:56] Speaker 12:
And you would say, well, only 55,000 of them can get visas.

[01:47:59] Speaker 12:
But we also know that historically, only about 41% of selectees end up getting the visa, historically speaking.

[01:48:08] Speaker 12:
Like 40% generally don't even apply.

[01:48:11] Speaker 12:
39% don't even follow through after they win.

[01:48:14] Speaker 12:
Another 10% are denied actual visas, a 5% to 10% denied visas, and 5% don't show up for their interviews.

[01:48:22] Speaker 12:
So you're around 40%.

[01:48:23] Speaker 12:
So 40% of 130,000 would have been about 59,000, 58,000 people.

[01:48:30] Speaker 12:
As a result of Judge Mena's order, the department issued about 15,001 total visas.

[01:48:38] Speaker 12:
which left as the court found around if you if you compare it to the how many pieces of an issue for family members and your relatives about 70% 76% of the numbers should have been issued.

[01:48:50] Speaker 12:
Our our our complaint and our appeal is this every one of our plaintiffs was motivated.

[01:48:55] Speaker 12:
They had complied with the law.

[01:48:58] Speaker 12:
They were ready for interviews.

[01:48:59] Speaker 12:
They had paid their money.

[01:49:01] Speaker 12:
They were among that 40%.

[01:49:03] Speaker 12:
When the judge found that only a third of them

[01:49:07] Speaker 12:
could apply for a reserve visa.

[01:49:09] Speaker 12:
It deprived 70% of our of our plaintiff from the right to be able to apply for a visa when that became available, which is today.

[01:49:19] Speaker 12:
So our our plea here today, the reason for our cross appeal is a judge made it was wrong only in his use of equity to help only a third of the active plaintiffs in our case.

[01:49:30] Speaker 12:
He should have reserved visas for each of the plaintiffs because each of them should stand an equal chance.

[01:49:36] Speaker 12:
of receiving the diversity visa.

[01:49:39] Speaker 10:
Thank you.

[01:49:40] Speaker 10:
Thank you, Mr. Cook.

[01:49:43] Speaker 10:
Ms.

[01:49:43] Speaker 10:
Alsterberg, we'll hear from you.

[01:49:52] Speaker 08:
As counsel notes, there is too much math here.

[01:49:56] Speaker 08:
Equity does not allow for the concoction of back of the napkin decisions on how many diversity visas

[01:50:04] Speaker 08:
should be allocated.

[01:50:07] Speaker 08:
Why should plaintiffs be in a better position than the rest of the diversity visa selectees who are also affected by the pandemic in general?

[01:50:14] Speaker 08:
This does not make sense.

[01:50:18] Speaker 08:
Back to equity.

[01:50:20] Speaker 08:
This court does not have the equity to afford these diversity visa selectees a mathematical formula that extends their eligibility.

[01:50:30] Speaker 08:
Yes, the fiscal year deadline is clear.

[01:50:34] Speaker 08:
While this is not jurisdictional and is something that could be waived to allow the Supreme Court to review it, that's clearly not something that has happened here.

[01:50:46] Speaker 08:
The government has consistently argued that these individuals are no longer eligible to seek the diversity visas that they want.

[01:50:55] Speaker 08:
And to the extent that a remedy is available, it can come from Congress.

[01:51:00] Speaker 08:
Thank you.

[01:51:01] Speaker 11:
Can I just ask one quick question?

[01:51:04] Speaker 11:
This does get to what we were talking about with the initial appeal, but since you flagged it, I just want to follow up.

[01:51:08] Speaker 11:
If it's the case that can be waived or forfeited in order to create Supreme Court review, if that's true, then why isn't it the case that a court can do that too by ordering relief without regard to the government's waiver?

[01:51:23] Speaker 11:
I mean, it seems kind of

[01:51:25] Speaker 11:
It seems odd to me that whether that issue comes up is something that's entirely beyond the reach of a court acting on its own.

[01:51:35] Speaker 11:
And it just has to turn on the government's good graces to waive it.

[01:51:41] Speaker 08:
The 1154A text does not impose a duty on the State Department.

[01:51:46] Speaker 08:
It just specifies the consequence of delay.

[01:51:50] Speaker 08:
And if the government asserts that 1154A, the statutory text, does apply, then the court is not authorized to substitute its own judgment for a different kind of belated agency action.

[01:52:05] Speaker 08:
and the one chosen by Congress, which is the eligibility for those diversity visas expires.

[01:52:12] Speaker 08:
As the Shaggy Court notes, relief would be forbidding by the statute in that scenario.

[01:52:21] Speaker 10:
Okay.

[01:52:22] Speaker 10:
Make sure my colleagues don't have questions for you.

[01:52:26] Speaker 10:
Thank you, Ms.

[01:52:27] Speaker 10:
Osterberg.

[01:52:29] Speaker 08:
Thank you.

[01:52:31] Speaker 11:
Mr. Cook, we're happy to give you 30 seconds for a very brief rebuttal if you'd like, but you don't need to take seconds.

[01:52:38] Speaker 12:
Your honor.

[01:52:39] Speaker 12:
Thank you.

[01:52:40] Speaker 12:
Uh, we in our relief in front of Judge May to ask for every reason to be reserved that was unused.

[01:52:46] Speaker 12:
We did that because that's the fairest thing to do.

[01:52:48] Speaker 12:
Uh, and if the court wants to do that, I think that would be totally awesome.

[01:52:52] Speaker 12:
But at least our plaintiffs who took this fight on behalf of everybody else should have that opportunity.

[01:52:58] Speaker 12:
I will note one last thing.

[01:53:00] Speaker 12:
The president decided that immigrants were bad for America.

[01:53:03] Speaker 12:
Under the government's theory here today, he could issue a 212 F order and say all immigrants are barred from the United States.

[01:53:10] Speaker 12:
Government's position here today is no court would ever be able to review that order, ever.

[01:53:17] Speaker 12:
Let's be clear, that's what we're really talking about today.

[01:53:20] Speaker 12:
And that cannot be the power from Congress who created an immigration system to give to a president.

[01:53:27] Speaker 12:
Thank you.

[01:53:30] Speaker 11:
Thank you, counsel.

[01:53:31] Speaker 11:
Thank you to all counsel in the first case in the cross appeal.

[01:53:33] Speaker 11:
Now we'll take that group of cases under submission and we'll move to the next case.

[01:53:58] Speaker 04:
Good morning.

[01:53:59] Speaker 04:
Yeah, please proceed when you're ready.

[01:54:01] Speaker 00:
Good morning, honors Nicolette Glazer appearing on behalf of the Georgia plaintiffs appellant may please the court I would like to reserve for minutes of my time for a bottle.

[01:54:11] Speaker 00:
The Georgia appeals comes to this court from the denial of a rule 65 a preliminary injunction.

[01:54:19] Speaker 00:
The district court did not address the merits of the claim pleaded to the APA and the equitable tolling and did not weigh the winter's factor.

[01:54:27] Speaker 00:
The only issue the district court addressed was Article 3 standing.

[01:54:31] Speaker 00:
And that is the only issue that is before the court.

[01:54:33] Speaker 00:
We respectfully asked the court to reverse that decision because the court made three clear errors.

[01:54:40] Speaker 00:
First, although the court addressed the standing for purposes of the challenge to the three rules,

[01:54:48] Speaker 00:
The three rules, it did not address the APA claim pleaded by each individual regarding the denial or the delay in the adjudication of their accepted and pending DS 260 application.

[01:55:02] Speaker 00:
Second, the district court conflated the issue of standing with the merits of the claim.

[01:55:08] Speaker 00:
And third, the district court switched the burdens for purposes of the mootness inquiry from the defendant invoking the doctrine to the plaintiff in order to basically try to prove the negative, that the government voluntary action after the initiation of the lawsuit did not moot all the claims.

[01:55:32] Speaker 00:
We respectfully submit that the decision of the district court was in contravention to clear the Supreme Court precedent.

[01:55:40] Speaker 00:
Specifically, the courts have held that an individual who has been long for denied an opportunity or has been aggrieved by an agency action has a cause of action under the APA to challenge and receive a review of that agency action.

[01:56:00] Speaker 00:
This is sufficient injury in fact, and the injury in fact here stem from the fact that each of these plaintiffs was the object of the government action.

[01:56:12] Speaker 00:
In Lujan, the Supreme Court made it clear that there is a difference in the injury in fact and whether that is particular and imminent depending of who is the object or who is the actor that is inflicting the harm.

[01:56:28] Speaker 00:
When the object is, as it's here, an object of a government action directed to them directly, then there is no question that there is an injury in fact.

[01:56:40] Speaker 00:
Another theory of injury in fact that we raised before the court and the court sort of addressed, but the

[01:56:47] Speaker 00:
rejected was what we doubt the parity argument and injury.

[01:56:52] Speaker 00:
And that is the fact that through these regular mandatory rules, the government had erected a barrier to the statutory relief.

[01:57:03] Speaker 00:
And under the general contractor's case and its progeny, the injury, in fact, in a lawful government barrier is not whether the plaintiffs will receive a benefit, will be granted the visa, or whatever relief.

[01:57:18] Speaker 00:
But it is that discriminatory impact that has created this favored group that has been treated differently.

[01:57:26] Speaker 00:
And the court below did not address that aspect of the injury.

[01:57:31] Speaker 00:
Clearly, the court could find on the merits that the government was justified in the delay or that there was no mandatory action to act.

[01:57:42] Speaker 00:
And as such, the plaintiff may lose the APA challenges.

[01:57:46] Speaker 00:
But as Judge Easterbrook stated in the Shaki case, it can be difficult to fathom a more personal interest

[01:57:56] Speaker 00:
and a more real controversy addressing real people in a real way than when a person who has a deadline is trying to receive adjudication of a pending and accepted application.

[01:58:10] Speaker 00:
Again, the merits is something different.

[01:58:12] Speaker 00:
Here, the district conflated the merit with the standing, and that is a reversible error.

[01:58:18] Speaker 03:
Is there any difference, just on the merits, is there any difference between the arguments you're pressing

[01:58:25] Speaker 03:
and the arguments your colleagues are pressing in the Goodluck case.

[01:58:30] Speaker 00:
The only difference, Your Honor, is that the Jochi plaintiff pleaded for equitable tolling and estoppel claim, which is basically what we have argued in the Shahi case and which led Judge Eastern Brook to find that there is no jurisdictional ground.

[01:58:47] Speaker 00:
There is no, I mean, that's not a mandatory processing rule, but is the kind of eligibility law that could be forfeited, or it can be waived,

[01:58:59] Speaker 00:
could potentially be equitably told.

[01:59:02] Speaker 00:
Considering Irving and all the cases that have followed, there is a general presumption that Congress know that any deadline, unless it's jurisdictional, is subject to equitable tolling.

[01:59:15] Speaker 00:
Same is being done by court ineligibility.

[01:59:17] Speaker 00:
So what we have argued and district court did not address is that considering that these plaintiffs have been the object of an unlawful action, that is the full year

[01:59:29] Speaker 00:
a diversity visa had been halved and six months were lost because of unlawful interpretation 1182-6 is databases for a district course to toll the eligibility.

[01:59:42] Speaker 00:
And that is an argument for the merits that is for Judge Lambert to decide.

[01:59:47] Speaker 00:
That is the only aspect of the Giorgi appeal on the merits that is different.

[01:59:53] Speaker 00:
If the court does not have any other question, I will reserve my time.

[01:59:58] Speaker 04:
Thank you, Ms.

[01:59:59] Speaker 04:
Glazer.

[02:00:01] Speaker 04:
We'll hear from the government now.

[02:00:04] Speaker 04:
Ms.

[02:00:04] Speaker 04:
Ramis.

[02:00:16] Speaker 04:
Good morning, Your Honors, and may it please the court.

[02:00:19] Speaker 06:
Michelle Ramis on behalf of the government and Joshi versus U.S.

[02:00:22] Speaker 06:
Department of State.

[02:00:23] Speaker 06:
This appeal stems from the district court's denial of appellants preliminary injunction on the grounds that appellants lacked Article 3 standing to bring any of their underlying claims.

[02:00:35] Speaker 06:
The government notes that even if appellants had demonstrated standing, the end of fiscal year 2021 undeniably mooted this appeal because in this case, the district court declined to grant any relief or reserve any diversity visas before the close of that fiscal year.

[02:00:52] Speaker 06:
This court should affirm the district court's denial.

[02:00:56] Speaker 06:
Appellants underlying claims in this case brought three types of challenges.

[02:01:01] Speaker 11:
Can I just stop you for one second?

[02:01:03] Speaker 11:
Because I think it sounds like you're transitioning away from mootness and you started by bracketing the mootness point.

[02:01:09] Speaker 11:
And I just have a question about that.

[02:01:12] Speaker 11:
If contrary to your argument that you just said was undeniable, I'm just going to suggest that it's deniable, at least for purposes of this hypothetical.

[02:01:22] Speaker 11:
Suppose that the end of the fiscal year doesn't necessarily preclude the ability of a court to grant some kind of equitable relief.

[02:01:29] Speaker 11:
That's the issue we've been discussing a fair amount already this morning.

[02:01:33] Speaker 11:
If that's true, then how does it make sense to draw a distinction between a situation in which the district court did grant relief and the situation in which a district court erroneously, by hypothesis, denied relief?

[02:01:48] Speaker 11:
Why would a plaintiff's fate rise or fall based on whether the district court got it right or wrong?

[02:01:58] Speaker 06:
Your honor, it would depend on the relief that was ordered before the end of the fiscal year and that in that hypothetical setting aside the government's initial positions on what relief is available before the end of the fiscal year, assuming that there was some relief available, that relief would

[02:02:14] Speaker 06:
arguably seem to come in the form of reservation.

[02:02:17] Speaker 06:
That did not occur in this case, but even if the court had reserved diversity visas, which was sought by the preliminary injunction in this case, the court has no authority to extend the applicant's eligibility beyond the end of the fiscal year.

[02:02:30] Speaker 11:
Congress has- But I'm assuming that that's wrong.

[02:02:34] Speaker 11:
So I think, unless I'm missing something, the government's argument throughout is

[02:02:39] Speaker 11:
that there's no authority on a part of a court to reserve visas because the end of the fiscal year divests a court of any authority to act.

[02:02:48] Speaker 11:
I'm just assuming that that's wrong.

[02:02:49] Speaker 11:
I'm just assuming that actually courts do have authority to reserve visas.

[02:02:56] Speaker 11:
And if that's true, that courts do have that equitable authority,

[02:03:01] Speaker 11:
and your initial position's wrong, then that raises the question, well, is there a difference between a situation in which a district court, as in the Goodluck cases, did reserve visas and a situation like in this case where the district court didn't because the district court denied relief?

[02:03:18] Speaker 11:
Of course the district court doesn't reserve visas when it rules against the plaintiffs.

[02:03:23] Speaker 11:
And I guess my question is, how is that

[02:03:27] Speaker 11:
of meaningful distinction, a principal distinction to draw when the plaintiffs didn't do anything different.

[02:03:33] Speaker 11:
They just brought their claims.

[02:03:35] Speaker 11:
In one case, the district court agreed with them and reserved visas.

[02:03:39] Speaker 11:
In the other case, the district court disagreed with them and therefore didn't reserve visas.

[02:03:44] Speaker 11:
But if the district court, by hypothesis, was wrong to disagree with them,

[02:03:49] Speaker 11:
then how is it fair to say, well, in the one case, because the district court got it right, the plaintiffs can get relief.

[02:03:58] Speaker 11:
In the second case, even though the district court got it wrong, the plaintiffs denied any possibility of relief purely because the district court got it wrong.

[02:04:07] Speaker 11:
Now, I don't understand what basis there is to draw a distinction between those situations because it just seems like it turns on the happenstance of whether the district court got it right or wrong.

[02:04:16] Speaker 11:
And that's something that's entirely out of the control of the plaintiffs.

[02:04:20] Speaker 06:
Your honor is highlighting the issue with the district where it's employed of equitable authority or even reserving any diversity visas here.

[02:04:29] Speaker 06:
That is precisely the issue with the exercise of equitable authority here.

[02:04:34] Speaker 06:
Cases such as Oakland Cannabis have said equitable authority stops where Congress has spoken.

[02:04:40] Speaker 11:
Can I stop you for a second?

[02:04:44] Speaker 11:
I'll try one more time and please.

[02:04:47] Speaker 11:
I know that you have a threshold argument.

[02:04:49] Speaker 11:
Maybe I'm missing something that you're getting to, and I apologize if I am.

[02:04:52] Speaker 11:
But I know you have an argument that it's wrong for the district court to reserve visas.

[02:04:57] Speaker 11:
I know that argument.

[02:04:59] Speaker 11:
And you have an argument that says that there's no equitable authority to do that because the statute concludes acting after the end of the fiscal year.

[02:05:06] Speaker 11:
I get that.

[02:05:07] Speaker 11:
I'm just assuming that argument's wrong.

[02:05:09] Speaker 11:
If you assume that argument's wrong and a district court does have authority to reserve visas, and I know you think that's wrong, but let's just assume for our hypothetical purposes that that's right.

[02:05:21] Speaker 11:
A district court does have authority to reserve visas, then what's the sense in drawing a distinction between a situation in which the district court exercised that authority and a case like this one in which the district court didn't because it ruled against the plaintiffs?

[02:05:35] Speaker 11:
It just seems to me that

[02:05:37] Speaker 11:
Both of those situations, the plaintiffs did everything they could do.

[02:05:41] Speaker 11:
So they should be equally situated regardless of whether the district court happened to reserve visas or not do so because it erroneously ruled against the plaintiffs.

[02:05:49] Speaker 11:
Am I making sense?

[02:05:54] Speaker 06:
Yes, Your Honor.

[02:05:54] Speaker 06:
In terms of an alternative argument to whether or not, I think there is a tie between that reservation and eligibility.

[02:06:03] Speaker 06:
So to clarify, Your Honor is also assuming

[02:06:05] Speaker 06:
that the court can extend the eligibility, is that correct?

[02:06:10] Speaker 11:
Yes, I thought that was the whole point of reserving these is maybe I'm getting something wrong in the nomenclature or the semantics, but I guess my point is simply that the end of the fiscal year doesn't preclude the granting of relief.

[02:06:21] Speaker 11:
I'm assuming that that's the case, that the end of the fiscal year does not preclude the granting of relief.

[02:06:28] Speaker 11:
And in this case, the government's making the argument, well, look,

[02:06:31] Speaker 11:
But the district court just they didn't reserve visas.

[02:06:34] Speaker 11:
So the plaintiffs are out of luck.

[02:06:36] Speaker 11:
And I guess my response is, why should the plaintiffs be out of luck just because the district court happened to deny them relief?

[02:06:45] Speaker 11:
If we think that the denial of relief was erroneous, then it seems like the plaintiffs are equally favorably situated as the good luck cases where the district court happened to reserve visas.

[02:06:57] Speaker 06:
That would require this court to find that it can

[02:07:01] Speaker 06:
reserve diversity visas beyond the end of the fiscal year at this point.

[02:07:06] Speaker 06:
That is the juncture that we're at.

[02:07:08] Speaker 06:
So if this court were to find at this point that it has authority to resurrect fiscal year 2021 diversity visas beyond the end of the fiscal year,

[02:07:17] Speaker 06:
Then yes, that would place the accountants in this case on par with individuals who had.

[02:07:23] Speaker 11:
I guess my question is why?

[02:07:25] Speaker 11:
Why wouldn't we conclude that?

[02:07:26] Speaker 11:
Because we're already in a situation where somebody is reserving visas past the end of the fiscal year.

[02:07:33] Speaker 11:
That kind of happens to answer whether a court happens to do that before the fiscal year actually lapses or doesn't.

[02:07:38] Speaker 11:
It makes no difference to plaintiffs or to any principle of equity that I can.

[02:07:43] Speaker 11:
understand because the plaintiffs did everything they could.

[02:07:46] Speaker 11:
They brought a suit and they got actually they got a district court to rule before the end of the fiscal year.

[02:07:51] Speaker 11:
It's just in one situation they got the district court to rule in their favor and the other they didn't and from the plaintiff's perspective it doesn't make any difference.

[02:08:00] Speaker 11:
So I don't understand why a mootness argument would be more powerful in a circumstance in which the district court

[02:08:08] Speaker 11:
denied the plaintiff's relief than a situation in which the district court happened to grant them relief by reserving these before the last fiscal year.

[02:08:17] Speaker 06:
I don't think that the government disagrees or would disagree with your statement that it is more powerful than in another case.

[02:08:25] Speaker 06:
At the government's position, this court would have to reach that beyond our threshold arguments, of course.

[02:08:30] Speaker 06:
But if we are sitting in that hypothetical position, then certainly reserve away, right?

[02:08:37] Speaker 06:
But here, fortunately, this court does not have to reach that issue.

[02:08:41] Speaker 06:
The mootness issue is a secondary issue to the issues that are before us.

[02:08:44] Speaker 11:
Yeah, and there may well be other very good reasons that you should prevail, but I'm sorry to have sidetracked you so long on that, but please proceed.

[02:08:52] Speaker 06:
Certainly, appellant underlying claims brought three types of challenges.

[02:08:56] Speaker 06:
Challenges against certain of the department's policies and practices formally governing diversity visa processes, challenges alleging lingering effects of those policies and practices, and challenges against the prioritization guidance in place at the time of the district court's decision.

[02:09:12] Speaker 06:
On that first type of challenge, the district court correctly found

[02:09:15] Speaker 06:
that appellants lacked standing to challenge those policies and practices because those policies and practices ceased to exist months before appellants ever filed their amended complaint.

[02:09:27] Speaker 06:
Those policies, in total, the last date that any of them were in effect was the end of February 2021.

[02:09:33] Speaker 06:
Appellants filed their amended complaint on June 26, 2021.

[02:09:36] Speaker 06:
So for that reason alone,

[02:09:39] Speaker 06:
Appellant slack standing to bring those challenges and any challenges that they brought the district court found removed at the time that they filed the amended complaint for the other two types of challenges, the lingering effects and the prioritization guidance.

[02:09:52] Speaker 06:
The district court found that any increased risk of any particular appellant not receiving a diversity visa depended on other factors, not just those challenge policies and practices or the prioritization guidance.

[02:10:06] Speaker 06:
It also depended on whether the individual was documentarily qualified, the regional rank order of the particular individual, conditions at the embassy or consulate.

[02:10:16] Speaker 06:
And appellants failed to demonstrate that any of those other factors

[02:10:20] Speaker 06:
were not a reason for the delay or withholding that they elect here.

[02:10:26] Speaker 06:
And I recognize that my time has expired.

[02:10:30] Speaker 06:
For these reasons, the district court correctly found that appellants lacked Article 3 standing to bring any of their claims in any of those three types of challenges.

[02:10:38] Speaker 06:
And this court should affirm its denial of appellants motion for a preliminary injunction.

[02:10:44] Speaker 10:
Let me make sure my colleagues don't have any additional questions for you, Ms.

[02:10:47] Speaker 10:
Ramis.

[02:10:49] Speaker 10:
Ramis, sorry.

[02:10:51] Speaker 11:
Thank you, Ms.

[02:10:52] Speaker 11:
Ramis.

[02:10:55] Speaker 11:
Ms.

[02:10:55] Speaker 11:
Glazer, I believe you still have four minutes left.

[02:10:58] Speaker 11:
We'll give you your four minutes.

[02:10:59] Speaker 00:
Thank you, Your Honor.

[02:11:00] Speaker 00:
Very quickly on three arguments that were made.

[02:11:03] Speaker 00:
First, I respectfully disagree with my colleague.

[02:11:06] Speaker 00:
There is nothing in 1154A that speaks of the authority of the court.

[02:11:11] Speaker 00:
The Supreme Court has said the only time there is a question that goes to the authority of the court to do anything is when the statute says so.

[02:11:21] Speaker 00:
There is nothing in 1142A.

[02:11:23] Speaker 00:
Also, this is not a mandatory processing rule.

[02:11:26] Speaker 00:
There is nothing about bringing a claim or how to bring it, where to bring it.

[02:11:31] Speaker 00:
So the only issue with 1154A is the question of eligibility.

[02:11:35] Speaker 00:
And eligibility is a question that can be extended if there is a violation.

[02:11:42] Speaker 00:
And it goes to the principle that Blackstone identified.

[02:11:46] Speaker 00:
In his commentary in 1803, it says, it is well settled and inviolable principle in the laws of England that every right, when withheld, must have a remedy.

[02:11:55] Speaker 00:
And here, contrary to the argument that are made about the lingering effect and the substantial increase, we have undeniably a six months that were taken away from the eligibility of these plaintiffs.

[02:12:10] Speaker 00:
The same provision that the government is counting says plaintiffs are entitled to the benefit of an approved petition for a duration of the fiscal year, and that is 12 months, or when the cap is reached.

[02:12:23] Speaker 00:
No question that the cap was not reached.

[02:12:25] Speaker 00:
And so what we have here is that six months were lost.

[02:12:29] Speaker 00:
Nothing was done during this month.

[02:12:31] Speaker 00:
Now, what's relevant is that in this particular case, in the district court found two of the plaintiffs, Mr. Cohn and Mr. Danai,

[02:12:39] Speaker 00:
were eligible, meaning they were documentary qualified.

[02:12:43] Speaker 00:
They were current on October 1, day one of the year, then one of the DV 2021.

[02:12:52] Speaker 00:
And yet, they did not get scheduled.

[02:12:54] Speaker 00:
Nothing was done on their cases for six months.

[02:12:58] Speaker 00:
We respectfully submit, when you have a benefit program that is established by Congress,

[02:13:07] Speaker 00:
and you cut it in half, it is understandable that the risks are substantially increased, at least by 50%.

[02:13:15] Speaker 00:
When KCC was not making slots available for DV, when it was making those slots available to other categories, that necessarily pushed every DV applicant down the road.

[02:13:27] Speaker 00:
And that is the standing for the but now Miss Ramos illustrated the district court said well the pandemic excuse that, but that's a merits question that's not a standing issue.

[02:13:38] Speaker 00:
If the plaintiffs have a real interest.

[02:13:42] Speaker 00:
personal interest in the lawsuit, then the court must assume the validity of their claim for purposes of standing.

[02:13:50] Speaker 00:
The Supreme Court has warned that the eligibility for the ultimate relief must not be grafted onto the standing inquiry.

[02:13:59] Speaker 00:
The second argument I would like to make is that if the court is to find that the district court was wrong, then the notions of

[02:14:10] Speaker 00:
equity such as slashes and estoppel will prevent the government from claiming, well, regardless of the fact that you were wronged, regardless of the fact that you made all the efforts to bring the decision, you will be losing because of the end of the year.

[02:14:26] Speaker 00:
I believe the estoppel claim that we specifically made goes to that point.

[02:14:31] Speaker 00:
If the court is to find that the government has acted unlawfully,

[02:14:35] Speaker 00:
then the court could provide or prevent the government from asserting an opposition that is contrary to what they previously have asserted.

[02:14:43] Speaker 00:
And for that reason, we respectfully ask the court to find that standing was present, as with all the other cases, and then return it to the district court to make a decision on the merits of the plaintiff's claim.

[02:14:55] Speaker 00:
Thank you, Your Honors.

[02:14:57] Speaker 11:
Thank you, counsel.

[02:14:59] Speaker 11:
Thank you to both counsel.

[02:15:00] Speaker 11:
In this case, we'll take this one under submission as well.

[02:15:04] Speaker 11:
And we'll move to the last related case.

[02:15:14] Speaker 04:
Greenberg, please proceed when you're ready.

[02:15:17] Speaker 07:
Thank you, Your Honor.

[02:15:21] Speaker 07:
May I please the court?

[02:15:23] Speaker 07:
My name is Julia Greenberg, and I represent Antonina Sirakova, fair talent on this case.

[02:15:30] Speaker 07:
The court reviews the issuance of a preliminary injunction for abuse of discretion.

[02:15:35] Speaker 07:
On September 26, 2021, the district court denied Sirakova's motion for preliminary injunction.

[02:15:42] Speaker 07:
Honorable Judge McFadden abused his discretion when he ruled that Sirakova has failed to show likelihood of success on the merits

[02:15:50] Speaker 07:
on her claim, an irreparable injury.

[02:15:54] Speaker 07:
In deciding motion for preliminary injunction, the court must balance four factors.

[02:15:59] Speaker 07:
Movement's likelihood of success on the merits, irreparable harm to the movement, whether an injunction would substantially injure other interested parties, and whether the public interest is advanced by the injunction.

[02:16:14] Speaker 07:
In applying the four-factor standard, courts employ a sliding scale under which a particularly strong showing in one area can compensate for the weakness in another.

[02:16:24] Speaker 07:
Therefore, the court may issue injunctive relief upon a particularly strong likelihood of success on the merits, even if there is a relatively slight showing of irreparable injury.

[02:16:38] Speaker 07:
Not to repeat the same arguments heard this morning from Goodluck

[02:16:42] Speaker 07:
George's attorneys, all of which Sirakova joins, I would like to emphasize the following.

[02:16:49] Speaker 07:
The Congress has not given Executive Branch the power to change immigration laws or decide which category of immigrants should or should not be adjudicated.

[02:17:00] Speaker 07:
Again, I want to emphasize, not given visas to, but adjudicated.

[02:17:06] Speaker 07:
Congress also enacted Section 1151E of Title 8,

[02:17:12] Speaker 07:
to provide 55,000 diversity visas each year to people from countries with low level of immigration.

[02:17:19] Speaker 07:
And why did the Congress do it?

[02:17:21] Speaker 07:
Because it intended to diversify immigration system as opposed to having influx of immigrants from particular countries.

[02:17:30] Speaker 07:
Again, this is the wheel of the Congress that we are talking about here.

[02:17:34] Speaker 07:
One of the requirements of diversity visa applicant is that they have to be educated, healthy, lack of criminal record, and not a threat to national security.

[02:17:43] Speaker 07:
And I'm oversimplifying this.

[02:17:45] Speaker 07:
But the point is that this is a very low bar considering to other categories of immigrants that Congress gave opportunity to apply and immigrate to the United States.

[02:17:58] Speaker 07:
In denying Sirikova's motion for preliminary injunction, the district court essentially agreed with the government's argument

[02:18:04] Speaker 07:
Department of State's prioritization of family-related visas over diversity visas was reasonable despite the fact that family-related visas have no expiration date and diversity visas do.

[02:18:18] Speaker 07:
The court reasoned that immigrants with familial tie is in better position for preferential treatment by the Department of State than Sirakova, who by the way just, she's a professor,

[02:18:31] Speaker 07:
She now resides in Poland.

[02:18:33] Speaker 07:
She teaches art at Berlin University of Art.

[02:18:37] Speaker 07:
So I would disagree that she has, she's in worse position than immigrants with familial ties.

[02:18:46] Speaker 07:
Respectfully, Apple is, the government is not empowered by Congress to discriminate diversity visa applicant this way, especially since diversity visas have congressional deadline and others don't.

[02:18:59] Speaker 07:
And this court in bars

[02:19:01] Speaker 07:
Barlaps, Inc., its 930 at second at 74, held that where agency has manifested bad faith by asserting utter indifference to congressional deadline, the agency will have hard time claiming legitimacy of its priorities.

[02:19:20] Speaker 07:
And this is exactly what happened here.

[02:19:22] Speaker 07:
By statute, the executive branch is obliged to process and adjudicate diversity visa applications at the same speed and same volume as other visa categories.

[02:19:35] Speaker 07:
In opposition to Sirikov's motion, the government partially blamed COVID for the shutdown of the Kentucky Consular Center for almost half of the fiscal year.

[02:19:46] Speaker 07:
This argument is not supported by the fact in this case.

[02:19:50] Speaker 07:
Kentucky Consular Center was created on October 25th, 2000, solely to speed up processing of diversity visa application.

[02:20:00] Speaker 07:
It is located in Williamsburg, Kentucky, and unlike many posts in foreign countries, which had to abide by strict COVID foreign restrictions, Kentucky Consular Center had no reason to stop its operation for almost half of the fiscal year.

[02:20:19] Speaker 07:
All U.S.

[02:20:19] Speaker 07:
agencies including USCIS National Visa Center continue to operate.

[02:20:27] Speaker 07:
Unlike many paper-based immigration forms which USCIS continue to process during COVID, diversity visa application is an online form.

[02:20:38] Speaker 07:
Essentially all that Kentucky Council Center has to do, their employees have to do is to review online applications and document

[02:20:48] Speaker 07:
documents and confirm that the applicant is documented or qualified for a visa interview.

[02:20:55] Speaker 07:
Director Mile, in charge of the Kentucky Consular Center, submitted a declaration in opposition to Sirikova's motion where she provided no reasonable justification for the shutdown of the Kentucky Consular Center.

[02:21:09] Speaker 07:
In its denial of Siracova's motion for preliminary injunction, the district court hasn't addressed Siracova's argument that the government unlawfully withheld adjudication of diversity visas in violation of Section 1201 BND Title 8, which states that all immigrant visa applications shall be reviewed and adjudicated by the consulate office.

[02:21:33] Speaker 07:
It is clear from the argument presented by Siracova that she has shown strong likelihood of success on the merits.

[02:21:39] Speaker 07:
She has also shown that she would suffer irreparable injury if the court wouldn't reserve her visa past 2021 fiscal year.

[02:21:49] Speaker 07:
To satisfy the irreparable harm requirements, Serekova must demonstrate that absent preliminary injunction, she will suffer an injury that neither remote nor speculative.

[02:22:00] Speaker 07:
The heart doesn't have to be severe, but simply imminent, and one cannot be remedied if the court awaits until the end of the trial.

[02:22:08] Speaker 07:
On September 30, 2021, Siracova forever lost her chance to have her immigrant visa application processed and adjudicated by the government and her mandamus action became moot.

[02:22:21] Speaker 07:
In PK versus Tillerson, the district court granted injunctive relief to plaintiffs in light of potential irreparable harm that they faced for not having their visas adjudicated.

[02:22:33] Speaker 07:
Sirakova is essentially in an identical situation and plaintiffs in PK and the government hasn't appealed that decision.

[02:22:42] Speaker 07:
In denying Sirakova's motion, the district court reasoned that since Sirakova was not entitled to visa, but simply its adjudication, she was not harmed.

[02:22:50] Speaker 07:
Respectfully, Sirakova is not suing the government for refusing her visa, but for the willful refusal to adjudicate it pursuant to the U.S.

[02:22:59] Speaker 07:
statute.

[02:23:00] Speaker 07:
If court decides with the district court on this issue that all immigrants will lose their chance to challenge the agencies wrongdoing on visas that have expiration date because immigrants are never entitled visa.

[02:23:13] Speaker 07:
They are just entitled for the government to adjudicate them.

[02:23:17] Speaker 07:
So the government will forever become immune from the challenge on this issue.

[02:23:22] Speaker 07:
And lastly, I would like to point out that the last two criteria for preliminary injunction also favor Sirakova.

[02:23:29] Speaker 07:
The balance of equities and the public interest merge in cases against the government.

[02:23:35] Speaker 07:
In League of Women Voters, the new buy, this court stated that there is a substantial public interest in having government agencies abide by federal laws that govern their existence and operation.

[02:23:50] Speaker 07:
Absent a grant of preliminary injunction of Sarah Kova's case, the government on lawful action alleged earlier today would be left without the court review because Sarah Kova's case is now moved.

[02:24:03] Speaker 07:
I have nothing further.

[02:24:05] Speaker 10:
Thank you, counsel.

[02:24:06] Speaker 10:
Let me make sure my colleagues don't have questions for you.

[02:24:09] Speaker 10:
We'll give you a minute for rebuttal.

[02:24:14] Speaker 10:
Thank you.

[02:24:14] Speaker 10:
Mr. Wellen, we'll hear from you now.

[02:24:41] Speaker 04:
Good morning, your honors.

[02:24:42] Speaker 02:
May it please the court, Will Weiland for the United States.

[02:24:46] Speaker 02:
This case is distinguishable from the other cases you have heard thus far this morning in that it involves the denial of a emergency motion for a temporary restraining order and preliminary injunction brought by a single plaintiff.

[02:25:01] Speaker 02:
Ms.

[02:25:02] Speaker 02:
Terekova, the appellant, is a Bella Russian national who was selected to participate in the diversity visa program for 2021.

[02:25:10] Speaker 02:
and in her supporting paperwork listed her residence in Moscow.

[02:25:14] Speaker 03:
You have distinct arguments on irreparable injury, but is there anything distinct on the merits between this case and the others we've heard?

[02:25:24] Speaker 02:
Yes, Your Honor.

[02:25:25] Speaker 02:
Setting aside that if you agree with the government's position on whether or not it's basically even being reserved in the mootness,

[02:25:34] Speaker 02:
On the merits, this, the court, and I will say that this court should still firm the court below because the court didn't rest its decision solely on preservation, but went on to assess the winter factors as it's appropriate.

[02:25:50] Speaker 02:
And specifically found, importantly, on winter factor one, the Sarikova was unlikely to succeed on that.

[02:25:59] Speaker 03:
Well, that's what I'm saying.

[02:26:00] Speaker 03:
Let's say you win good luck.

[02:26:03] Speaker 03:
on the government's position in that case.

[02:26:07] Speaker 03:
Is there any more work for us to do here?

[02:26:10] Speaker 02:
But sir, if you agree with us on the position on the merits, on the merits in the other cases?

[02:26:20] Speaker 02:
No, Your Honor, but I would say this case doesn't involve a policy challenge to the State Department's implementation of any pressure.

[02:26:28] Speaker 02:
I understand it's an error.

[02:26:29] Speaker 02:
Yes, sir.

[02:26:31] Speaker 02:
It's only an unreasonable delay in mandamus

[02:26:33] Speaker 02:
And the court found that Ms.

[02:26:36] Speaker 02:
Saracova, as was her burden, had not shown that any policy of the State Department affected the processing.

[02:26:45] Speaker 02:
And so I think that's a distinction.

[02:26:47] Speaker 02:
The court also found that if there was any delay, it was attributable to two primary factors.

[02:26:55] Speaker 02:
The COVID-19 pandemic is in the record quite

[02:27:01] Speaker 02:
extensively and also in the actions of the Russian with regards to the embassy.

[02:27:07] Speaker 02:
And for that reason, she was unlikely to succeed on the merits of her claim.

[02:27:15] Speaker 02:
The court also assessed the important winter factor four, which is what would relief do with regards to other agency priorities and found that Ms.

[02:27:26] Speaker 02:
Serikova had not demonstrated that

[02:27:29] Speaker 02:
advancing her case, prioritizing her case over everyone else who was attending an interview at the embassy in Moscow, was merited based on the showing she had made on December 26th, 2021.

[02:27:43] Speaker 02:
And as a result, he would not, he determined he would not grant the relief to Ms.

[02:27:51] Speaker 02:
Sarikova, regardless of the issue of reservation.

[02:28:00] Speaker 02:
this court.

[02:28:01] Speaker 02:
I'm happy to rest on my brief or answer any questions this court might have in that regard.

[02:28:08] Speaker 02:
And also the labor issue.

[02:28:11] Speaker 10:
You not have so.

[02:28:14] Speaker 10:
Thank you.

[02:28:14] Speaker 10:
Thank you, Mr Well, unless my colleagues have questions for you.

[02:28:21] Speaker 05:
Thank you.

[02:28:22] Speaker 10:
Thank you, Mr Well.

[02:28:24] Speaker 10:
Greenberg will give you one minute for rebuttal.

[02:28:32] Speaker 07:
Thank you, Your Honors.

[02:28:34] Speaker 07:
I just want to remind the court that, again, for preliminary injunction, it's a sliding scale.

[02:28:41] Speaker 07:
So if the applicant shows strong likelihood of success on the merits of the likelihood to prevail on the merits of the case, then

[02:28:49] Speaker 07:
she can only show a slight likelihood of irreparable injury.

[02:28:55] Speaker 07:
But in Sirkova's case, and I emphasize this during the oral argument before the district court, she's not a national of Russia.

[02:29:04] Speaker 07:
In 2020, when she was selected for DVV's application and filed it on September 30th,

[02:29:12] Speaker 07:
2020, it's literally the first day of the fiscal year.

[02:29:17] Speaker 07:
She was residing.

[02:29:18] Speaker 07:
She's a national of Belarus.

[02:29:19] Speaker 07:
She was residing in Russia.

[02:29:21] Speaker 07:
So when she moved to Ukraine, remember the Kentucky Consular Center, she completely shut down.

[02:29:28] Speaker 07:
So she tried to contact.

[02:29:30] Speaker 07:
And by the way, the Kentucky Consular Center is the only center who could change the location of her interview.

[02:29:38] Speaker 07:
So she tried to contact.

[02:29:41] Speaker 07:
There was no response.

[02:29:42] Speaker 07:
The Kentucky Consular Center even shut down the phone line.

[02:29:47] Speaker 07:
So all email inquiries had to be made through email.

[02:29:51] Speaker 07:
Obviously, no response followed.

[02:29:53] Speaker 07:
And in July, when she retained myself, I emailed the Kentucky Consular Center, and I asked to be transferred to Poland Consular Post.

[02:30:06] Speaker 07:
But I don't think it excuses the government's, even if Sirakov's case was in Moscow, the government could transfer by all volition the consulate post from one country to another as happened in Ukraine when the government could not operate the consulate post in Ukraine.

[02:30:28] Speaker 07:
It transferred to Germany-Frankfurt where it could continue to process and adjudicate

[02:30:33] Speaker 07:
immigrant visas.

[02:30:34] Speaker 07:
So I don't see the reason why that would excuse the government from adjudicating this case.

[02:30:41] Speaker 07:
And this is all owners and circle respectful requests that the decision of the district would be reversed and should be granted relief requested.

[02:30:52] Speaker 07:
Thank you.

[02:30:54] Speaker 10:
Thank you, counsel.

[02:30:55] Speaker 10:
Thank you to both counsel.

[02:30:56] Speaker 10:
In this case, we'll take this one under submission as with the other cases.