[00:00:00] Speaker 00:
It's number 21, 5200 Nancy Gimena, we saw and her minor child at out versus Alejandro and Majorca's Secretary of Homeland Security in his official capacity at out a balance.

[00:00:13] Speaker 00:
Miss Swingle for the balance.

[00:00:15] Speaker 00:
Mr. Gallant for the police.

[00:00:20] Speaker 06:
Morning, counsel.

[00:00:21] Speaker 06:
Miss Swingle, please be ready.

[00:00:24] Speaker 05:
Thank you, Your Honor.

[00:00:25] Speaker 05:
Sharon Swingle for the Department of Justice.

[00:00:28] Speaker 05:
representing the defendant's appellants in this case.

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In issuing the Title 42 rule and order, CDC applied its scientific expertise to address a once-in-a-century, highly dynamic public health emergency involving emergency variants of COVID-19, rising transmission rates, and strained healthcare resources, in particular at remote areas near the southwest border.

[00:00:54] Speaker 05:
The challenged CDC order responds to the serious danger of the transmission of COVID-19 that arises for non-citizens who enter the United States without valid travel documents and as a result would normally be held in congregate settings pending their processing under the immigration laws.

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Under the Title 42 order, those non-citizens can be rapidly screened and then quickly expelled, substantially reducing the risk of transmission.

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If those non-citizens were required to be processed under Title 8, they would have to be transported to border patrol stations or held at ports of entry, facilities that are not designed or equipped to quarantine, isolate, or treat COVID-positive individuals, and they would be held for lengthy periods in these crowded and overcapacity facilities, posing a substantial risk of the spread of COVID-19 to other non-citizens, CBP officials, and the public at large.

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Two different panels of this court have already concluded in granting stays of preliminary injunctions in this case and PJES that the government is likely to succeed on the merits.

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And we similarly ask this court to vacate the district court's preliminary injunction, which was premised on an erroneously cramped view of the CDC's authority under section 265.

[00:02:17] Speaker 04:
Ms.

[00:02:17] Speaker 04:
Swingle, you started out by mentioning or leading with the CDC's expertise, health expertise.

[00:02:28] Speaker 04:
And as you know, the plaintiffs have to a somewhat small degree in their briefing suggested that this decision was not really made based on any health concerns.

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the arbitrary and capricious challenge that the plaintiffs brought to this order was not briefed on this appeal, but it was raised in their complaint.

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And so I'd be grateful if you could

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if you could address some concerns I have about whether this order was arbitrary and capricious as the plaintiffs allege in their complaint and some factors that seem to inform my concern or that do inform my concern are as follows.

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One is that the statute refers to introducing a disease, but COVID is unfortunately

[00:03:26] Speaker 04:
quite introduced into the United States by this point in time.

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In particular, with regard to Mexico and Canada, which the order applies to, I don't know of anything in the record suggesting that COVID is more prevalent in Mexico or Canada than it is in the United States.

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In addition to that, the order only covers about 0.1% of people who cross the Canadian or Mexican border.

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And I don't know of anything in the record suggesting that those 0.1% of border crossers are more likely to have COVID than the other 99.9%.

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In addition, the order applies only to Mexico and Canada.

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I don't know of anything in the record suggesting that those two countries have especially high prevalence of COVID relative to other countries that are not covered by the CDC's order.

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And then I guess I would add to that sort of

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perhaps less specific but more general concern, maybe concern is the wrong word, but factor in the arbitrary and capricious analysis that the plaintiffs have alleged and cited some reports that there are no experts in the CDC who actually think

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any health concerns justify this order, that the order was forced on the CDC's director over the objections of those career CDC people who refused to sign the order.

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And I would suggest maybe if the order was justified, was not arbitrary and capricious in March of 2020 when there was so much uncertainty.

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It's now January of 2022.

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And we've heard from Dr. Fauci

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who in many ways, in many instances, this administration has pointed to as an expert deserving of trust.

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And he has said directly that expelling immigrants is not a solution to COVID-19.

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Now, I'm not suggesting that we should defer to Dr. Fauci, but it seems that administration has sometimes suggested that his guidance is worthy of deference.

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So with all of those things in mind,

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Can you explain to me why the plaintiffs were not correct when they said that this policy is arbitrary and capricious?

[00:05:49] Speaker 05:
So there's a lot there to unpack, and I hope you'll give me a chance to address it with all due steps.

[00:05:58] Speaker 05:
First, as Your Honor's question, I think, made clear, the arbitrary and capricious claim that was brought by the plaintiffs was not the basis for the district court's preliminary injunction

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And they have not argued that that should be a basis for this court to affirm that injunction as not being abusive discretion on wholly alternative grounds.

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So I think it's not appropriately before the court.

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But I want to be also clear that the CDC has and continues to apply its public health expertise.

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And as recently as the August 2021 new order has again concluded that

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the order remains necessary as applied to members of family units and single adults who cross the border without valid travel documents.

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And the reason for that really goes to the circumstances in which those individuals would be held under normal immigration processing, which is to say, if they cross outside of ports of entry, they would be held in border patrol stations,

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that are often rather small facilities, often largely over capacity, even in normal times, much less in these COVID times with restricted capacity in an effort to mitigate the spread of COVID.

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And those conditions are highly conducive to the spread of COVID-19 to non-citizens, to CBP officials, and the public at large.

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Now, to get to some of your specific questions

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If I can start sort of where you ended with Dr. Fauci, I would encourage the court to listen to the specific Dr. Fauci interview that the plaintiffs cite multiple times in their brief.

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Seconds after the quote that they rely on, he was specifically asked if there was a medical necessity for the CDC's Title 42 order.

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And he said that he was not sufficiently aware of the circumstances to express a comment on that issue.

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that in no way undermines the CDC's judgment.

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And it's a judgment that has been made repeatedly across two political administrations.

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And as recently as the most recent re-review of the order at the end of November of this year, last year, that the order remains necessary to protect the public health.

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I think the fact that there is a higher prevalence in Mexico or Canada or a lower prevalence was not the basis for the order.

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I think the basis for the order is the spiking incidents, the continuing basis for the order is the spiking incidents of COVID, most recently in August of the new Delta variant, and I obviously am not telling the court anything it doesn't know that now the Omicron variant has also had an impact on the need for the order.

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Going to your question about, but I would add that the CDC did note that the non citizens who are coming to the United States across the border were coming from countries that at that time had lower vaccination rates than within the United States.

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You mentioned the very small percentage of the individuals who cross the border who are subject to the order that again is not surprising.

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because those are the individuals who would be held in congregate settings at CBP border stations or ports of entry.

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You know, for individuals who cross with valid travel documents, the process of entering is very quick.

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It does not involve any kind of confinement or holding in a closed setting that poses the kind of risks of transmission that are really designed to be responded to by the CDC's order.

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And then finally, going to your,

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first question about how the CDC's expertise is implicated by its interpretation of introduction.

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The CDC determined, and I think reasonably so, that introduction can occur when somebody moves into the country in such a manner as to pose a risk of transmission of a communicable disease.

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And here, an individual who crosses the border

[00:10:18] Speaker 05:
walks five miles into the interior of the country who would then come into contact with other persons in a way that would risk transmission of COVID-19 is reasonably understood to be in the process of introduction.

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And I think that reflects CDC's application of its expertise about the way in which communicable diseases spread and the circumstances that give rise to the public health emergency that justified the order here.

[00:10:46] Speaker 06:
As I understand the basis of the order though, the fact that somebody comes in and then might encounter other people, let's say sometime afterwards, that can't be the basis for the order because that's true of all kinds of people who come over, who immigrate into the country.

[00:11:03] Speaker 06:
The entire rationale for the order I think has to be because otherwise it would be substantially under inclusive.

[00:11:09] Speaker 06:
It has to be bound up in the congregate settings.

[00:11:12] Speaker 06:
It's all about the congregate settings because any other explanation that deals with COVID writ large just can't substantiate this order I think you would agree with.

[00:11:21] Speaker 06:
And that's why the order is framed as it is.

[00:11:23] Speaker 06:
It has to do with the congregate settings.

[00:11:25] Speaker 06:
And the congregate settings are a product of the way that the government chooses to structure its affairs.

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Now, I'm not saying that there's practical alternatives.

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I don't mean to suggest that there's something that's just obviously there.

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that should be done.

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I'm just saying that it's a consequence of the way that the government structures its handling of persons who come to the border without documentation and seek these forms of relief under Title VIII.

[00:11:55] Speaker 05:
And yes, and I don't mean to suggest otherwise, Judge Srinivasan, I would just add that the extent that those congregate settings and the normal mechanism by which

[00:12:06] Speaker 05:
non-citizens would be processed when they are in the United States or enter the United States without valid travel documents, poses the risk, at risk attains both as to individuals who can be turned away at the border and individuals who manage to evade the prohibition on entry by entering outside of ports of entry.

[00:12:28] Speaker 01:
That's all.

[00:12:28] Speaker 01:
When does introduction end?

[00:12:33] Speaker 05:
So I think that's,

[00:12:37] Speaker 05:
An interesting question, and I think it's one that is addressed in part in one of the final rules, the September 2020 final rule, which reflects that somebody who has been in the United States for longer than the incubation period and doesn't have symptoms or hasn't tested positive may have finished introducing himself into the United States.

[00:12:59] Speaker 05:
That's at 85 Fedreg 56445.

[00:13:04] Speaker 05:
But I don't think, you know, the challenged

[00:13:07] Speaker 05:
order applies to individuals who are apprehended or encountered at or near the border after either entering, presenting themselves at a port of entry or entering outside of a port of entry.

[00:13:21] Speaker 05:
And I think the plaintiffs here have not brought any challenge that somehow it's being applied to people who have been apprehended far enough away from the border or a long enough period of time that they are no longer still in the process of being introduced.

[00:13:38] Speaker 06:
Thank you.

[00:13:39] Speaker 06:
Can I ask a question about the interrelationship between 265 and the title eight provisions that provide for a particular process, or at least an entitlement vis-a-vis asylum, the withholding of removal and the convention against torture.

[00:13:56] Speaker 06:
So the context against which we think about the interrelationship between those, because I think both sides treat with the interrelationship.

[00:14:03] Speaker 06:
And what you say is, well, 265 takes control because it deals with the specific context of the kind of emergency we're dealing with here.

[00:14:12] Speaker 06:
And so it supersedes, overrides, or carves out from

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otherwise would be the case under Title VIII.

[00:14:19] Speaker 06:
And the other side says, no, that's got it backwards.

[00:14:22] Speaker 06:
Actually, the specific provisions are the ones under Title VIII, and they carve out from what otherwise might be authority under 265.

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And so I'm trying to figure out how do we assess which side has it right in terms of which statutory regime governs over the other one to the extent that there's

[00:14:40] Speaker 06:
an inner relationship between the two and a need to harmonize them or figure out how they work together in this situation.

[00:14:49] Speaker 06:
And so the context against which we assess that question is informed by the fact that the Title VIII already accounts for inadmissibility for individuals who have communicable diseases and says that if you have a communicable disease, that's a ground for inadmissibility.

[00:15:06] Speaker 06:
and so you don't otherwise qualify for admission into the United States.

[00:15:10] Speaker 06:
But it's specifically, Congress specifically said, even as to that ground of inadmissibility for somebody who actually has a communicable disease, and it's a communicable disease of public interest, I can't remember the precise wording, but I think the language of public significance maybe is what it says, that the Title VIII entitlement still govern.

[00:15:29] Speaker 06:
And so notwithstanding that somebody has a communicable disease of public significance, they still have the entitlement to see through the processes under Title 8 to seek asylum relief under withholding or convention against torture.

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So if that's the balance that Congress has already struck with respect to somebody who has a communicable disease and is inadmissible to the United States by virtue of that,

[00:15:53] Speaker 06:
then that seems to me to have some salience as we're trying to figure out how 265 interrelates with the Title VIII authorities.

[00:16:03] Speaker 05:
Absolutely, Your Honor.

[00:16:04] Speaker 05:
I would first point out that, of course, the district court did not ground its preliminary injunction on that argument.

[00:16:12] Speaker 05:
It didn't reach it, didn't rule on it.

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So it would be

[00:16:16] Speaker 06:
It's definitely an alternate ground and I take and I appreciate your, your noting that but it's also one that's at least before us, I think, because both parties have briefed it as an alternate ground and you've engaged on that's not necessarily to say we would do it without sending it back but it's at least to say that it's a possibility.

[00:16:33] Speaker 05:
Agreed, Your Honor.

[00:16:36] Speaker 05:
first point out that even at the time that the predecessor statute to section 265 was first enacted in 1893, communicable diseases were already at that point a ground of inadmissibility under the immigration laws.

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But Congress clearly meant to displace that general rule and to grant a broader authority to, at that time, the president to suspend the introduction of persons in the face of a significant public health emergency

[00:17:06] Speaker 05:
of the sort that is the basis for invoking section 265.

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So I think you can see in that that Congress understood even at the time that section 265 predecessor would be focused on a very specific rare set of circumstances.

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And I think under normal principles of the specific governing the general that reflects a congressional intent for this different rule to apply

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in the unique circumstances that we are facing in this.

[00:17:40] Speaker 06:
But if I can just stop you for a second.

[00:17:42] Speaker 06:
That's true.

[00:17:44] Speaker 06:
But at that point in time, you didn't have the Title VIII humanitarian provisions that you have now.

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And you didn't have Congress having struck the balance in favor of those as against somebody who presents with a communicable disease.

[00:17:59] Speaker 05:
So I agree that the

[00:18:01] Speaker 05:
Congress in enacting the Convention Against Torture and the Refugee Protocol did set out generally applicable rules for immigrants generally.

[00:18:08] Speaker 05:
I think our view is that Section 265 nevertheless constitutes the more specific rule of decision.

[00:18:15] Speaker 05:
And I think to the extent that there is conflict, you can look to the text of Section 265 and its context and drafting history.

[00:18:23] Speaker 05:
You know, it was originally entitled The Suspension of Immigration, the

[00:18:29] Speaker 05:
the specific provisions of the statute envision that initially the president, now the CDC, will have the authority to suspend the right to introduce.

[00:18:41] Speaker 05:
That right was one that was understood to be applicable, in our view, under the immigration laws.

[00:18:47] Speaker 05:
And the suspension of immigration necessarily encompasses the authority to suspend what would otherwise be the operation of the immigration laws in the face of this kind of unique

[00:18:59] Speaker 05:
a public health emergency.

[00:19:01] Speaker 01:
Is there also an, I guess, an argument that section 265 says basically Congress is giving the Surgeon General the authority where there is serious danger of the introduction of such disease into the United States?

[00:19:27] Speaker 01:
Is that, I guess, father for your argument that this is the specific trumping the general because nowhere in those other immigration statutes is there kind of a, I guess, an acknowledgement that there is a serious danger of introducing the communicable disease into the United States?

[00:19:55] Speaker 05:
Yes, Your Honor, that is our view.

[00:19:57] Speaker 05:
extent there is anything in the immigration laws relating to transmission of communicable diseases it's in the grounds of ineligibility that were in place already at the time that section 265 was enacted and was clearly intended to supplant and to the extent we're looking at sort of generally applicable entitlements to apply for asylum or relief under the convention against torture those have no reference to the kind of

[00:20:25] Speaker 05:
significant public health emergency at issue here.

[00:20:28] Speaker 05:
I do want to be clear, however, that in its application of the Title 42 order, the CBP officials are providing an opportunity for some humanitarian relief for non-citizens who express fear of torture upon return to the country that is a country of destination.

[00:20:48] Speaker 05:
They are being referred to USCIS for further screening.

[00:20:52] Speaker 06:
But you're not taking the view that that complies with Title 8, right?

[00:20:55] Speaker 06:
You're just saying that that is an opportunity.

[00:20:58] Speaker 06:
Otherwise, we wouldn't even have this dispute if it actually.

[00:21:00] Speaker 06:
Exactly, Your Honor.

[00:21:01] Speaker 06:
Can I ask you, does the government on this set of issues, I didn't read anywhere in the brief that the government draws any distinction as among the three forms of Title 8 relief that we're talking about, i.e.

[00:21:15] Speaker 06:
asylum, withholding of removal, and convention against torture, that they stand or fall together, either

[00:21:22] Speaker 06:
there's either plaintiffs are right in their alternative argument.

[00:21:27] Speaker 06:
There's an entitlement to pursue that Title 8 process, notwithstanding 265, as to all three.

[00:21:33] Speaker 06:
Or you're right that that entitlement that otherwise would exist is non-existent in the face of an assertion of 265 authority.

[00:21:43] Speaker 05:
That's correct, Your Honor.

[00:21:44] Speaker 05:
We have not distinguished between the three forms of relief.

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We think in these circumstances where Section 265 has been invoked,

[00:21:52] Speaker 05:
all of them are displaced.

[00:21:56] Speaker 06:
Can I ask you one other question?

[00:21:59] Speaker 06:
It's on a little bit of a different axis.

[00:22:01] Speaker 06:
So getting back to the point that the focal point of the order is the circumstances and congregate settings.

[00:22:08] Speaker 06:
And that's really the basis against which the order was promulgated and then renewed.

[00:22:17] Speaker 06:
What's the status of unaccompanied miners vis-a-vis congregate settings?

[00:22:21] Speaker 06:
Because I know that unaccompanied miners aren't covered by the order.

[00:22:24] Speaker 06:
And the question I have in my mind is, in terms of the rationale for not including, are they meaningfully differently situated vis-a-vis congregate settings?

[00:22:36] Speaker 06:
It's not my understanding that they avoid congregate settings altogether.

[00:22:41] Speaker 06:
It may be the case that they're,

[00:22:43] Speaker 06:
as a rough average, they're there for a lesser amount of time.

[00:22:46] Speaker 06:
I don't know for sure, but I'm just curious to get your explanation as to why unaccompanied minors are carved out vis-a-vis the concerns about congregate settings that underlie the order.

[00:23:00] Speaker 05:
Absolutely, Your Honor.

[00:23:01] Speaker 05:
So I think unaccompanied minors are different in a number of pretty critical ways.

[00:23:07] Speaker 05:
Obviously, for an initial period of time upon their encounter,

[00:23:13] Speaker 05:
they are going to be held in a congregate setting pending transfer.

[00:23:18] Speaker 05:
They would be held as with other distinct demographics separately from other members of family units, for example, or single adults.

[00:23:28] Speaker 05:
There are a much smaller number of unaccompanied minors who are encountered than members of family units or single adults in particular.

[00:23:40] Speaker 05:
So the risk of

[00:23:42] Speaker 05:
overcrowding is in some respects lessened as to that population.

[00:23:47] Speaker 05:
But I think most importantly, they can be transferred to the Office of Refugee Resettlement has robust capacity for holding those minors and they can be transferred quickly into those facilities which have testing available.

[00:24:07] Speaker 05:
They have quarantine and isolation available.

[00:24:10] Speaker 05:
They can provide vaccination for the minors and then they can ensure that during that period in which they need to be quarantined or isolated, they are actually complying with mitigation protocols for members of family units.

[00:24:26] Speaker 05:
There is not the comparable ability to do that kind of monitored quarantining or isolation testing treatment.

[00:24:36] Speaker 05:
in a way that exists for the unaccompanied miners.

[00:24:39] Speaker 06:
But if I'm understanding it correctly, that happens after leaving the initial congregate setting.

[00:24:46] Speaker 06:
Because if

[00:24:50] Speaker 06:
If the order was based on what happens outside of the congregate setting, then there's lots of people who are coming over every day who raise exactly the same kinds of concerns but aren't covered by the order.

[00:25:02] Speaker 06:
So the order has to be justified by what happens in the initial congregate setting.

[00:25:06] Speaker 06:
And so the distinction between unaccompanied minors and members of family units

[00:25:12] Speaker 06:
would need to be grounded in a difference vis-a-vis that initial placement in a congregate setting before the unaccompanied minors go to an RR facility and have the kinds of benefits that you've listed.

[00:25:26] Speaker 05:
Principally, Your Honor, but I want to respond in a couple of ways.

[00:25:29] Speaker 05:
First, in addition to the risk of congregate settings, there is this question about the strain on local regional health care resources in the CBP facilities, in the ports of entry,

[00:25:42] Speaker 05:
there are limited or no medical resources available.

[00:25:46] Speaker 05:
And so for individuals who are sick, who need treatment, who need to be tested, particularly PCR testing, they need to be transported to local healthcare facilities for that treatment and testing.

[00:25:59] Speaker 05:
And so that itself both risks spread of COVID, but in particular in areas where there are limited resources, that can be a real strain on the resources of the healthcare

[00:26:12] Speaker 05:
institutions at a time when they are already strained because of rising COVID rates in the local communities.

[00:26:19] Speaker 05:
So I think that's one distinction that we see.

[00:26:22] Speaker 05:
The second, yes, absolutely one critical risk is of the spread in the congregate settings.

[00:26:30] Speaker 05:
But one of the concerns about spread in congregate settings is about then the potential spread into a local community.

[00:26:37] Speaker 05:
And for members of family units, because of the Flores settlement,

[00:26:41] Speaker 05:
there are limits on how long members of family units can be held in detention.

[00:26:47] Speaker 05:
And so what's happening is that if they are being processed under Title VIII, after being held in this congregate setting, which is posing this risk of spread of COVID, they are then released on discretionary parole into the community.

[00:27:01] Speaker 05:
And the concern is that people who either were previously infected upon entering the country or who have then become infected in that congregate setting

[00:27:10] Speaker 05:
then being released into the community where there is limited ability to quarantine, isolate, monitor the compliance.

[00:27:18] Speaker 06:
That's true, but that's just true of all kinds of people who come across the border every minute of every hour of every day.

[00:27:25] Speaker 05:
They are released into a community, so there has to be... I would respectfully disagree, Your Honor, because what I'm saying is that the risk is caused

[00:27:33] Speaker 05:
by the release after the holding in the congregate settings, right?

[00:27:36] Speaker 06:
So then it's the congregate setting that creates the problem.

[00:27:38] Speaker 06:
So everything comes back to the basis of the order, which is bound up at the congregate, initial congregate setting.

[00:27:45] Speaker 05:
Yes, although I think the risk is not limited sort of temporally to that period.

[00:27:50] Speaker 05:
Yeah, exactly.

[00:27:51] Speaker 06:
I take that point that there's subsequent risks that emerge from the initial congregate setting, but the differentiator is the congregate setting.

[00:27:59] Speaker 06:
At least that's the entire graviment of the order, as I understand it.

[00:28:01] Speaker 05:
That's correct.

[00:28:02] Speaker 05:
And I want to be clear for the court.

[00:28:05] Speaker 05:
The goal for the government is to eventually work back to orderly normal immigration processing.

[00:28:13] Speaker 05:
And notwithstanding the very real resource constraints that DHS and ICE have been faced with in light of limited congressional expropriations, they have taken significant steps in recent months, recent years to increase capacity, improve processing.

[00:28:27] Speaker 05:
DHS has stood up numerous emergency facilities

[00:28:31] Speaker 05:
and retrofitted existing ones.

[00:28:33] Speaker 05:
And in part that has allowed for greater capacity to process unaccompanied children and now family members.

[00:28:39] Speaker 05:
ICE has transitioned existing facilities and DHS is sometimes using private contractors to build out facilities.

[00:28:48] Speaker 05:
And they of course have previously set up programs for special exceptions for non-citizens, which have allowed collectively some 29,000 people to come in as exceptions to the order.

[00:29:00] Speaker 05:
The goal is to return to a world in which everyone is processed under Title VIII, but we are just not there yet.

[00:29:08] Speaker 06:
On that point, you'd also mentioned that for unaccompanied minors, the numbers are less than the numbers for family units.

[00:29:18] Speaker 06:
Much, much less, yes.

[00:29:19] Speaker 06:
And I'm just wondering, how much less is it if we only talk about the number of individuals in family units who are in fact

[00:29:29] Speaker 06:
processed under title 42 rather than title eight, because as I understand the record,

[00:29:34] Speaker 06:
at least for one relevant period, 86% of individuals and family units were in fact given the Title 8 process because of the refusal of other countries to accept people who hadn't gone through the Title 8 process.

[00:29:48] Speaker 06:
And so I'm wondering what the comparison is between unaccompanied minors and then the number of people and family units who actually went, go through the Title 42 process or the limited- Certainly, Your Honor.

[00:30:00] Speaker 05:
The latest numbers are not in the record before the court, but they are available online.

[00:30:05] Speaker 05:
DHS does keep those.

[00:30:07] Speaker 05:
And I would just note that although at the time the opening brief was filed, the most recent month had been a sort of a unique low in the percentage of family unit members who were being expelled under Title 42, that number has been significantly higher in subsequent months and has varied between

[00:30:27] Speaker 05:
over 11,000 individuals in November 2022 and over 17,000 individuals in August and September of 2022 and up to a high of 31% of members of family units in October 2021.

[00:30:44] Speaker 05:
So the 14% is not a number that has remained static.

[00:30:49] Speaker 05:
I don't have the numbers for

[00:30:51] Speaker 05:
unaccompanied minors directly in front of me, but my understanding is that they are a much smaller number compared to the number of family member units who have been expelled.

[00:31:03] Speaker 05:
And of course, I would just add, if I might, that the district court's reasoning here, although it was applied in a class action brought only by members of family units, would be wholly applicable to any category of non-citizens expelled under the order.

[00:31:20] Speaker 05:
And I would just mention that the numbers for single adults have remained staggeringly high.

[00:31:26] Speaker 05:
And the idea that the government would be able to process what now is probably close to 100,000 non-citizens monthly and hold those individuals in congregate settings is obviously an alarming specter from the public health perspective.

[00:31:46] Speaker 01:
There's some discussion in the record

[00:31:50] Speaker 01:
prior CDC regulations in 2017 related to Ebola and other communicable diseases.

[00:32:02] Speaker 01:
Do any of those prior regulations purport to

[00:32:09] Speaker 01:
give the CDC the authority to suspend immigration laws and expel persons either explicitly or did it happen?

[00:32:24] Speaker 05:
So I don't believe so, Your Honor.

[00:32:26] Speaker 05:
I would note that those regulations were not issued under Section 265.

[00:32:31] Speaker 05:
I believe the only time Section 265 has previously been invoked

[00:32:37] Speaker 05:
to suspend introduction of persons was in response to the epidemic coming from China and the Philippines in 1929, which did not by its plain terms provide for expulsion.

[00:32:55] Speaker 05:
But of course, in the government's view, suspending the introduction of persons from a country sort of necessarily encompasses the authority to expel somebody

[00:33:05] Speaker 05:
who comes in in contravention of that prohibition.

[00:33:09] Speaker 05:
In the same way, you know, federal law prohibits, for example, the unauthorized entry onto the White House grounds.

[00:33:17] Speaker 05:
And surely the fact that that also provides for criminal punishment, a fine or imprisonment of somebody who violates that prohibition doesn't disable the Secret Service from, you know, apprehending somebody who has managed to hop the fence and turning them around again.

[00:33:35] Speaker 01:
But it doesn't mean that they have the authority to, for example, shoot and kill them on sight, right?

[00:33:44] Speaker 01:
I mean, because they can stop the introduction doesn't mean that they can stop the introduction any way they see please.

[00:33:54] Speaker 05:
Agreed, Your Honor.

[00:33:55] Speaker 05:
Our point is only that the power to suspend introduction or prohibit introduction is most normally understood to include the power

[00:34:05] Speaker 05:
to expel somebody, push out somebody who has entered notwithstanding that prohibition.

[00:34:12] Speaker 01:
What are we to do with the, I mean, I'd be, I'm inclined to be very sympathetic to your position, but we have Supreme Court authority that says that when an agency is taking unprecedented action or exercising some unprecedented power,

[00:34:35] Speaker 01:
that we were to look askance at that.

[00:34:39] Speaker 01:
And so what are we to do with that authority?

[00:34:43] Speaker 05:
With all due respect, Your Honor, we think that line of authority is simply not applicable here.

[00:34:47] Speaker 05:
This is not a circumstance in which the government has exercised an authority that has long been understood to be or has long been applied in a more circumscribed kind of way.

[00:35:00] Speaker 05:
This is a very rarely used authority

[00:35:03] Speaker 05:
which is coming to bear in an extraordinary public health emergency of a sort, you know, never seen in our lifetimes.

[00:35:12] Speaker 05:
And I think with all due respect, this is akin to, for example, the application of the Medicare Medicaid rules to require vaccination that the Supreme Court has just recently opined on.

[00:35:26] Speaker 05:
And that was the subject of our 28-J response letter last evening.

[00:35:30] Speaker 05:
you know, this is a unique and extraordinary circumstance and it is hardly surprising that the government would invoke a quite extraordinary power that was intended to be a quite extraordinary power to bring, has brought that to bear to respond to try and protect the public health.

[00:35:49] Speaker 01:
Well, of course, your friends on the other side say it's more akin to the OSHA rule that the court struck down, right?

[00:35:56] Speaker 05:
And we think that's just simply not correct.

[00:35:58] Speaker 05:
This is not a circumstance in which we are claiming the power to regulate some vast array of economic activity.

[00:36:07] Speaker 05:
This is not a restriction that applies even to US persons.

[00:36:11] Speaker 05:
And it is carefully circumscribed and I think really tailored to the precise risk that happens when non-citizens are being held in these congregate settings

[00:36:24] Speaker 05:
in a manner that poses really a substantial risk of the spread of this terrible disease.

[00:36:32] Speaker 06:
This is also a category of persons as to whom, just to get back to Title VIII, the record materials indicate, and I think just what the Title VIII provisions are about, are some harrowing conditions that are faced by people who are turned away.

[00:36:49] Speaker 06:
I think you would acknowledge that aspect of this such that the 265 authority when it's asserted in this context will mean that individuals who otherwise couldn't be sent back to a particular country because they will be tortured there will be.

[00:37:08] Speaker 05:
Certainly, Your Honor, we are aware of and deplore the quite horrific circumstances that non-citizens are in

[00:37:18] Speaker 05:
some of the countries that are at issue here.

[00:37:20] Speaker 05:
I would take issue with the fact that somebody who expresses a fear of torture certainly is being referred appropriately to USCIS for a possible exception.

[00:37:32] Speaker 05:
And we do have humanitarian exceptions to the Title 42 order.

[00:37:38] Speaker 05:
We have previously used that to try and bring in particularly vulnerable people.

[00:37:44] Speaker 05:
And I would just note that the August 2021

[00:37:47] Speaker 05:
order again, contains a new exception for programs if they can be developed to safely bring people to ports of entry, consistent with public health needs to try and apply for the kind of relief your honor is seeking.

[00:38:05] Speaker 01:
How do we want the court to use that information, I guess,

[00:38:12] Speaker 01:
in your favor?

[00:38:14] Speaker 01:
Is it just information that we use in thinking about irreparable harm or balance of equities?

[00:38:23] Speaker 01:
Or does it go to likelihood of success on the merits?

[00:38:30] Speaker 05:
So I don't think it goes to likelihood of success on the merits as to the statutory authority question that was the basis for the district court's preliminary injunction.

[00:38:40] Speaker 05:
And I also don't think it goes to likelihood of success on the merits at this stage of the litigation where neither the plaintiffs nor the defendants have briefed that as an alternate basis for affirming the preliminary injunction.

[00:38:56] Speaker 05:
I do think it is relevant at the balancing of equities stage.

[00:39:02] Speaker 05:
Of course, in the government's view, because a likelihood of success on the merits is a necessary factor to be established

[00:39:11] Speaker 05:
to be a basis for preliminary injunction and the government's view that the court doesn't actually need to reach the balancing of equities.

[00:39:19] Speaker 04:
But if we disagree with you about likelihood of success in the marriage, then we have to reach the balance of equities.

[00:39:27] Speaker 04:
I wonder if we should consider the sort of self-contradiction between the Department of Justice's briefing in this case

[00:39:40] Speaker 04:
and the Department of Justice's current cert petition with regard to remain in Mexico, where the cert petition says aliens sent to Mexico face persecution, abuse, and other harms.

[00:39:53] Speaker 04:
The cert petition says there's, quote, extreme violence perpetrated by criminal organizations.

[00:39:59] Speaker 04:
The cert petition says sending asylum seekers to Mexico doesn't, quote, align with the administration's

[00:40:05] Speaker 04:
values.

[00:40:05] Speaker 04:
And as you know, and as I think you don't contest, the plaintiffs in this case describe how the plaintiffs will be pushed across bridges at predictable times and locations where cartels lie in wait

[00:40:19] Speaker 04:
They tell the story of a mother who was expelled and then armed men grabbed her and raped her multiple times while she begged them not to harm her daughter.

[00:40:27] Speaker 04:
And they say that's just one, one example out of 3000 or so kidnappings and other attacks.

[00:40:35] Speaker 04:
So what are we supposed to do with this?

[00:40:37] Speaker 04:
What I would describe as self-contradiction between the petition you filed and remain in Mexico and your argument with regard to the balance of equities in this case.

[00:40:48] Speaker 05:
So your honor, I don't believe there is contradiction there.

[00:40:51] Speaker 05:
We have not contested that migrants have been subject to extremely harrowing conditions in Mexico or elsewhere.

[00:41:00] Speaker 05:
And certainly, we deplore the horrific treatment of those individuals by gangsters and criminals and violent persons.

[00:41:10] Speaker 04:
I appreciate that.

[00:41:11] Speaker 04:
And I know that you're not

[00:41:13] Speaker 04:
You're not denying it, you're conceding that that's the reality they face, but you seem in this case to be downplaying it relative to.

[00:41:24] Speaker 04:
what you describe as the risk from COVID, which, as I mentioned, covers only 0.1% of people who cross the border.

[00:41:30] Speaker 04:
I understand that there have been concrete settings, but this isn't March 2020.

[00:41:35] Speaker 04:
We have widespread available effective vaccines.

[00:41:39] Speaker 04:
We also have a whole host of testing that wasn't as widely available and were treatments as well.

[00:41:47] Speaker 04:
So I'm not asking whether you

[00:41:50] Speaker 04:
whether you agree that these terrible risks exist for these migrants, I know you agree that they exist, I'm asking you to sort of square how much you emphasize them relative to other values and concerns in the Remain of Mexico litigation and how much you seem to devalue them with regard to COVID concerns in this litigation.

[00:42:16] Speaker 05:
So with all due respect, Your Honor, I simply don't agree.

[00:42:18] Speaker 05:
Obviously, the government's goal is to get back to a state of orderly immigration processing for everyone.

[00:42:25] Speaker 05:
But currently, in CDC's view, the public health realities don't permit that.

[00:42:31] Speaker 05:
And just to respond to a couple of specific points in your question, for example, yes, vaccines are more available.

[00:42:38] Speaker 05:
But vaccinating somebody upon encounter does nothing to reduce the risk that that person may spread COVID

[00:42:46] Speaker 05:
in a congregate setting in the days after vaccination when the vaccine has not yet become effective.

[00:42:52] Speaker 05:
Testing is certainly more widespread now and I don't wanna downplay its efficacy.

[00:42:59] Speaker 05:
It is one of the mitigation measures that- Ms.

[00:43:01] Speaker 04:
Swingle, if I may interrupt, I didn't mean that it would be effective to vaccinate the migrants.

[00:43:05] Speaker 04:
I meant that the American citizens, those who wish to be protected through vaccination have had that option for almost a year now.

[00:43:13] Speaker 04:
And the administration has said

[00:43:16] Speaker 04:
that those who are vaccinated will have a good year, something like a good summer, a good year ahead.

[00:43:23] Speaker 04:
The administration has said the unvaccinated are a great risk and that it's sort of criticized them for making that choice.

[00:43:30] Speaker 04:
But I'm saying in a country where everyone who wants to be vaccinated has been vaccinated and in an era where the vaccines are as effective as they are, how is it that you

[00:43:43] Speaker 04:
you devalue these risks to migrants that you seem to emphasize so much, and you remain a Mexico litigation.

[00:43:51] Speaker 05:
So if I may, Your Honor, I think, yes, many CBP officials are now vaccinated who were not vaccinated in March 2020.

[00:43:58] Speaker 05:
We certainly are extremely happy that there is a vaccination available and more widespread through the United States than it was at the outset of these challenged rules and orders.

[00:44:12] Speaker 05:
On the other hand, you know, we have new variants even as of August, 2021, the Delta variant was a game changer and can lead to breakthrough vaccinations even in vaccinated or breakthrough infections, even in vaccinated people.

[00:44:26] Speaker 05:
That doesn't mean that non-citizens are vaccinated.

[00:44:29] Speaker 05:
You know, there is a change in the calculus of risk.

[00:44:32] Speaker 05:
And I think the CDC has responded, you know, effectively and timely to changed risk by, for example, accepting

[00:44:41] Speaker 05:
unaccompanied children as the facts from the ground have changed.

[00:44:45] Speaker 05:
But in the CDC's judgment, the need for this order remains in place, notwithstanding the changes that have happened.

[00:44:51] Speaker 04:
And I think- Is there any affidavit in the record from an expert at CDC attesting to what you just said?

[00:44:57] Speaker 04:
Maybe there is, but I'm asking.

[00:44:59] Speaker 05:
No, Your Honor.

[00:45:00] Speaker 05:
But I would also just point out that no record has been put forward yet.

[00:45:04] Speaker 05:
This was all decided at the preliminary injunction stage.

[00:45:08] Speaker 05:
I would just add, I think this all highlights the need why the CDC should be making the public health determinations in the first instance.

[00:45:18] Speaker 05:
I don't need to tell the court that this is an extremely dynamic set of circumstances.

[00:45:24] Speaker 05:
At the time of the August, 2021 order, we had the Delta variant, which was a very significant game changer in terms of sort of anticipated plans for federal reopening and other things,

[00:45:38] Speaker 05:
The past few weeks, we have the Omicron variant.

[00:45:41] Speaker 05:
These all emphasize why the CDC, rather than a judge issuing a preliminary injunction, should be making decisions about what the public health requires.

[00:45:52] Speaker 06:
There is something quite extraordinary.

[00:45:53] Speaker 04:
Go ahead, Judge Rockford.

[00:45:54] Speaker 04:
No, please.

[00:45:55] Speaker 04:
I was going to go back to likelihood of success on the merits.

[00:45:57] Speaker 04:
So please, Chief Judge.

[00:46:00] Speaker 06:
I'm on likelihood of success on the merits, too.

[00:46:03] Speaker 06:
Go ahead.

[00:46:03] Speaker 06:
OK.

[00:46:04] Speaker 06:
So there is something.

[00:46:06] Speaker 06:
There is something interesting about an anomalous about this exercise of authority by the CDC because even if, as a general matter, certainly don't take issue with the proposition that the CDC director would be acting in the interest of public health and is doing so, and is intending to do so here for sure.

[00:46:25] Speaker 06:
And that would be true in the normal instance in which 265 would apply to an across the board kind of mechanism.

[00:46:34] Speaker 06:
What makes this case something different in terms of its architecture is that it only applies in the context of border crossings and the order draws the kinds of distinctions that just make immigration policy.

[00:46:53] Speaker 06:
because it carves out certain categories, it carves in certain categories, and it just, it can't help but be, it invokes the assistance on totally understandably and necessarily of DHS and CBP, but it can't help but be a document that ends up being an immigration policy resolution that is being done under the auspices of the CDC.

[00:47:19] Speaker 05:
With all due respect, Judge Srinivasan, I think that is precisely what Congress intended in enacting this statute.

[00:47:26] Speaker 05:
In 1893, in the face of a cholera epidemic, and I might add a cholera epidemic that had already started in the United States, that had already been introduced to the United States, that the prior year the government had taken action to try and stop, Congress specifically intended

[00:47:46] Speaker 05:
confer this authority to suspend all immigration, as well as all non immigrant travel, or some subset of those people precisely in order to stop this kind of increased transmission of a disease.

[00:48:02] Speaker 05:
increased risk of a transmission of a disease.

[00:48:04] Speaker 06:
But I think all non-immigrant travel truth factors into this because something that would apply to everybody coming here, of course, it's going to overlap with immigration.

[00:48:12] Speaker 06:
I completely take that point.

[00:48:14] Speaker 06:
It's necessarily bound up in it.

[00:48:16] Speaker 06:
But when the document deals specifically with a population of undocumented immigrants and draws distinctions among undocumented immigrants, it starts to sound like exactly the type of immigration debates that have been vexing immigration policymakers for a long time.

[00:48:30] Speaker 05:
Well, you know, Your Honor, I think it's really quite instructive to look at the legislative history and in particular the drafting history of what became Section 7 of the 1893 Act, because in that debate over the statute and in the various iterations of the bill that were considered and rejected in favor of this one, there was widespread understanding about precisely what Your Honor is discussing.

[00:48:56] Speaker 05:
which is that the authority conveyed by this statute would allow the president to choose subsets of individuals crossing the border to suspend the introduction of, prohibit the introduction of precisely in order to reflect judgments about the difference in consequence and impact of bringing, for example, immigrants versus travelers who came for tourism or pleasure purposes.

[00:49:24] Speaker 05:
immigrants versus US citizens or US persons.

[00:49:28] Speaker 05:
So I think it envisioned, you know, I appreciate that immigration policy gets kind of caught up in this, but I think that is by virtue of the sort of basic set of circumstances that this statute is intended to address, which is the fear of significant danger of transmission of a disease over the border coming from people crossing the border.

[00:49:53] Speaker 06:
I have one last question along these lines, and then I want to make sure my colleagues don't have additional questions for you, which is you're not going to buy this premise, but I'm just going to ask you to buy it just for purposes of understanding the architecture of the case.

[00:50:06] Speaker 06:
And that is that among the various grounds that the plaintiffs have asserted before us, not writ large in the case, but before us, am I right in understanding that the one that would be the narrowest

[00:50:19] Speaker 06:
limitation on the scope of the CDC's authority under section 265 would be the title aid ground as opposed to either the ground on which the district court rested, which is that the power to stop introduction just doesn't encompass expulsions at all.

[00:50:37] Speaker 06:
or the notion that the statute was directed at either common carriers or third parties, and you can glean that from the use of the locution, the introduction.

[00:50:48] Speaker 06:
The Title 8 one is narrower in scope, not narrow in scope in a way that you would accept, but narrower in scope than those other two grounds.

[00:50:58] Speaker 05:
I do think in that sense, it's probably technically narrower in scope because, of course, there are other arguments would leave section 265 essentially insignificant or really a nullity.

[00:51:11] Speaker 05:
I would say that as a practical matter, the ramifications of that would be substantial because it would require offering processes, procedures for any individual subject potentially subject to the order

[00:51:28] Speaker 05:
to invoke rights or protections under the asylum laws or the CAT beyond what is being done now in a way that effectively would, I think, eviscerate the authority of the government to apply the order in the way that it's actually protective of public health.

[00:51:50] Speaker 06:
Yeah, certainly with respect to the order, I completely take that point.

[00:51:53] Speaker 06:
With respect to the scope of 265 writ large,

[00:51:57] Speaker 05:
Yes, I agree, Your Honor.

[00:51:59] Speaker 05:
Certainly the other arguments that this is only intended to be a regulation of common carriers or that I think the most extreme version of the argument that the government can issue a prohibition on entry but has no ability to enforce that except through criminal prosecution and fines, those would obviously be much more sweeping.

[00:52:23] Speaker 04:
If I could ask a question or two on the merit and likelihood of success.

[00:52:30] Speaker 04:
I think I'm with you on both on this statute, not just applying to transportation, third party providers, and also I think I'm with you on the statute didn't need to expressly give the executive the authority to expel

[00:52:52] Speaker 04:
in order for the executive to be able to expel under this statute.

[00:52:57] Speaker 04:
And even on some of the Title 8 questions, I think I might be with you.

[00:53:06] Speaker 04:
It seems odd to give an asylum process to someone who under a 265 order is guaranteed to not be able to get asylum to someone who's

[00:53:20] Speaker 04:
whose very presence is rendered illegal under 265.

[00:53:26] Speaker 04:
And then on the convention against torture, as you mentioned, there may be some accommodations for that under the order as it exists.

[00:53:33] Speaker 04:
So what do I do if I think only on the right to withholding of removal is this order inconsistent with

[00:53:49] Speaker 04:
the statutory right to withholding of removal.

[00:53:55] Speaker 04:
What do I do then?

[00:53:58] Speaker 05:
So again, Your Honor, I think we would urge, because those were not issues that the district court ruled on, if the court thought that that were a significant question, we think it ought to be sent back to the district court.

[00:54:10] Speaker 05:
I do think withholding of removal is somewhat different from the right to apply for asylum in the sense that it is a defense

[00:54:19] Speaker 05:
to removal, which is a process, a term of art under the immigration laws.

[00:54:24] Speaker 05:
And of course, the individuals here are not being removed within the meaning of that term of art.

[00:54:30] Speaker 05:
They are simply being expelled.

[00:54:32] Speaker 05:
And I want to be clear, this is not actually an adverse immigration act.

[00:54:37] Speaker 05:
It has no adverse consequences under the immigration laws, unlike removal, which has some legal consequences for non-citizens.

[00:54:47] Speaker 05:
This is simply not

[00:54:49] Speaker 05:
that process, it's a wholly different thing.

[00:54:52] Speaker 04:
Can you spell that out a little bit for me?

[00:54:54] Speaker 04:
Because I think that may be the solution to this case from my perspective.

[00:55:00] Speaker 04:
The difference between expelling as you're doing under this order and removing in the sense that the statutory right to withholding of removal to a place where you'll be persecuted uses the term removal.

[00:55:13] Speaker 05:
Yes.

[00:55:15] Speaker 05:
And again, this has not been briefed and so I'm

[00:55:17] Speaker 05:
weighing it a little bit here and I want to not be inaccurate for the court.

[00:55:22] Speaker 05:
And certainly if this is something your honor would like supplemental briefing on, we would be happy to provide it.

[00:55:28] Speaker 05:
Withholding of removal is a defense to removal for somebody who would otherwise be subject to removal, either expedited removal or the normal removal under Title VIII.

[00:55:41] Speaker 05:
And what is happening in the

[00:55:45] Speaker 05:
the implementation of this order at ports of entry or outside of ports of entry is that individuals who are encountered, who are subject to Title 42, the government obtains some basic biographic information on them just to check to make sure that they are not criminal aliens who would be subject to prosecution under the criminal laws.

[00:56:12] Speaker 05:
But to the extent that they are not,

[00:56:14] Speaker 05:
They are then simply transported to a port of entry and walked across the border, or if it's not possible to expel them to Mexico, flown to another country.

[00:56:24] Speaker 05:
But there is no adjudication made that would have any adverse consequences for them.

[00:56:32] Speaker 05:
The way it's documented in the government's systems is not something that has any negative legal ramifications for a non-citizen.

[00:56:41] Speaker 05:
who subsequently attempts to enter the country or apply for relief or some type of right under the immigration laws.

[00:56:48] Speaker 05:
It's of no consequence.

[00:56:50] Speaker 05:
Unlike removal, which may affect a statutory bar, for example, to a subsequent effort to enter the United States.

[00:56:58] Speaker 04:
And in some ways, because it wasn't briefed in, it wasn't the basis of the district court decision, I'm flying a bit blind myself.

[00:57:09] Speaker 04:
So don't take this as a hostile question.

[00:57:14] Speaker 04:
But the right to removal to a country where you'll be persecuted seems to kind of make real a value that we have as a nation that if there were a genocide in another country, we wouldn't

[00:57:32] Speaker 04:
put somebody who's currently on American soil back into that country if their group is the target of the genocide.

[00:57:41] Speaker 04:
And I'm not saying it only applies to genocide, but that'd be like the most drastic example.

[00:57:46] Speaker 04:
So imagine that there was a genocide against a certain religion in Mexico and someone of that religion crosses the border and encounters border patrol 10 minutes later.

[00:58:02] Speaker 04:
Are you saying that the statutory right to withholding of removal would not prevent the United States from taking that person from American soil and putting them back in Mexico, where in my hypothetical there's a genocide, and their group is the target of the genocide?

[00:58:23] Speaker 05:
So two things, Your Honor.

[00:58:24] Speaker 05:
First, to the extent that that person expresses a fear of mistreatment, a fear of torture upon expulsion,

[00:58:32] Speaker 05:
that person is going to be referred to USCIS for relief.

[00:58:36] Speaker 05:
So the order contemplates application of humanitarian exceptions to expulsion.

[00:58:44] Speaker 05:
But in our view, the order is not removal.

[00:58:49] Speaker 05:
It is sort of operating apart and entirely separate from the operation of the immigration laws.

[00:58:56] Speaker 05:
And so no statutory defenses to removal

[00:59:01] Speaker 05:
being effectuated under title eight do not apply.

[00:59:04] Speaker 06:
Right.

[00:59:05] Speaker 06:
So I mean, if I go, please, please, please.

[00:59:08] Speaker 04:
I was, I was just going to correct something that I said earlier.

[00:59:10] Speaker 04:
I misspoke when I said every American can be vaccinated.

[00:59:13] Speaker 04:
It's it'll be every American over, over five and at least unless they have health conditions that that prevented, I just wanted to correct my misstatement.

[00:59:21] Speaker 06:
So as I understand your response, as a matter of legal authority, the hypothetical that was presented by Judge Walker, the answer would be yes, the 265 authority would allow for sending that person back in the face of the circumstances that he outlines.

[00:59:37] Speaker 06:
There may be some minimal process that even you acknowledge, I think you have to, is not the normal title aid process for someone who's seeking withholding or relief or protection under the convention against torture.

[00:59:50] Speaker 06:
that may exist as a matter of grace under the order, but as a matter of the government's understanding of the 265 authority, it does completely supersede the withholding of removal of protection that otherwise would exist.

[01:00:01] Speaker 05:
That is correct, Your Honor.

[01:00:03] Speaker 05:
Although, as I understand the withholding of removal, you know, that is a statutory defense to removal under Title VIII, which is obviously not, in our view, what's happening.

[01:00:14] Speaker 06:
And do you see a distinction between withholding a removal and conventioning as torture?

[01:00:19] Speaker 06:
I'm not aware that there's any distinction between those other than I know that the order carves out this non-Title 8 compliant minimalist process by which somebody can affirmatively exclaim that they have

[01:00:33] Speaker 06:
that they would be subjected to torture if they were sent back.

[01:00:36] Speaker 06:
I understand that that's a possibility and it's happened in a handful of instances.

[01:00:39] Speaker 06:
But in terms of the relationship between convention against torture and withholding of removal, I didn't understand there to be a distinction between those two, but maybe there is.

[01:00:51] Speaker 05:
We have not drawn a distinction for purposes of this humanitarian exception under 265.

[01:00:57] Speaker 05:
You're correct, Your Honor.

[01:00:58] Speaker 05:
In our view, the 265 expulsion authority

[01:01:02] Speaker 05:
is independent from Title VIII and supplants what would otherwise apply under Title VIII including any Title VIII defenses to removal.

[01:01:15] Speaker 04:
Let me just anticipate something that the plaintiffs are going to say.

[01:01:20] Speaker 04:
They're going to say we shouldn't ask for supplemental briefing, or they're going to say we shouldn't send this back to the district court on this Title VIII question.

[01:01:27] Speaker 04:
If the court's inclined to disagree with the district court on what it did, but wants to not decide the Title VIII question, they're going to say don't send it back to the district court because that will just put these plaintiffs through months and months more of delay.

[01:01:43] Speaker 04:
What's your response to that?

[01:01:45] Speaker 05:
So we don't disagree that the court can reach that question.

[01:01:49] Speaker 05:
We do think it's somewhat anomalous to say the district court didn't abuse its discretion because it could have, but didn't rely on wholly independent grounds.

[01:02:00] Speaker 05:
But it's certainly within the court's authority to reach that.

[01:02:03] Speaker 05:
We just think that they're wrong on the Title VIII question.

[01:02:07] Speaker 05:
And if I can be precise about one thing, Judge Walker, in offering supplemental briefing, we're certainly happy to offer

[01:02:14] Speaker 05:
supplemental briefing on Title 8 writ large, but I think the precise issue I was suggesting hadn't been briefed really at all is whether if one were to look at Title 8 defenses to removal or particular rights available under Title 8, whether the defense for withholding of removal might be differently situated, for example, than

[01:02:43] Speaker 05:
the right to apply for asylum, which is not a defense to removal, but is, you know, a freestanding Title VIII provision.

[01:02:56] Speaker 06:
Okay.

[01:02:56] Speaker 06:
Thank you, Ms.

[01:02:56] Speaker 06:
Wigle.

[01:02:57] Speaker 06:
If my colleagues have no further questions for you at this time, we'll give you some time for rebuttal, but we'll hear from the plaintiffs now.

[01:03:03] Speaker 06:
Mr. Gellern.

[01:03:04] Speaker 03:
Good morning, Your Honors.

[01:03:06] Speaker 03:
May it please the Court, legal earned from the ACLU for a plaintiff's appellees.

[01:03:10] Speaker 03:
I want to just jump into the conversation you've just been having.

[01:03:14] Speaker 03:
about reconciling Title 8 with 265.

[01:03:18] Speaker 03:
Just to clear up a few points, withholding applies regardless of whether you're in the immigration system, because I gather that's what my friend's argument is, that that's clear cut.

[01:03:31] Speaker 03:
The Refugee Convention says, to quote, is, expel or return, refowler, in any manner whatsoever,

[01:03:42] Speaker 03:
our domestic law makes it clear you can apply.

[01:03:45] Speaker 03:
And the reason is sort of common sense.

[01:03:46] Speaker 03:
And this is laid out in the UNHCR brief and the IRAP amicus brief, is otherwise a sovereign nation could just relabel their laws and then send anybody back who they want to to persecution.

[01:04:00] Speaker 03:
So it can't be that it's limited to the immigration laws.

[01:04:04] Speaker 03:
That still leaves reconciling with 265, but I just wanted to clear up that very specific point.

[01:04:10] Speaker 03:
On asylum, of course, you have a statutory right to apply.

[01:04:14] Speaker 03:
You have no statutory right ultimately to be granted it.

[01:04:17] Speaker 03:
Withholding in CAT are mandatory, but ultimately the government's not raising a distinction.

[01:04:22] Speaker 03:
I think that's because they need to provide these protections.

[01:04:25] Speaker 03:
Putting aside 265, they do need to provide these protections.

[01:04:29] Speaker 03:
And just one other note about CAT, as Judge Srinivasan has said, it's not a legal answer for the government because even if they were providing for CAT relief,

[01:04:40] Speaker 03:
cat screenings at least, they would under Title 8 have to provide for asylum and withholding screenings.

[01:04:47] Speaker 03:
And in any event, I think we've pointed out, and some of the amicus presa pointed out, it's a fairly illusory cat screening.

[01:04:52] Speaker 03:
But I want to turn to the larger issue about reconciling 265 with these Title 8 protections.

[01:05:00] Speaker 03:
I think the key is that the later statute applies if there's a conflict.

[01:05:05] Speaker 03:
But you don't need to get to that conflict.

[01:05:07] Speaker 03:
As Your Honors have been pointing out,

[01:05:09] Speaker 03:
because it can be harmonized.

[01:05:10] Speaker 03:
And I just want to raise one nuanced point about what may be a nuance about the harmonization.

[01:05:16] Speaker 03:
We think that the first step in harmonizing as the Brown and Williams case lays out and as what's more recent case in Epic lays out is you try and construe the two statutes not to have a conflict.

[01:05:29] Speaker 03:
If that doesn't work, you then go to the specific versus general canon.

[01:05:34] Speaker 03:
So I want to start with trying to harmonize the laws.

[01:05:37] Speaker 03:
I think what's clear is that

[01:05:39] Speaker 03:
Congress in enacting the asylum laws does not have a carve out for communicable diseases.

[01:05:46] Speaker 03:
Congress has repeatedly amended the asylum laws, repeatedly created additional exemptions every few years, but has never put in an exception for communicable diseases or pandemics.

[01:05:59] Speaker 03:
And that's consistent with the Refugee Convention, which we're bound by.

[01:06:03] Speaker 03:
And as again, laid out by UNHCR, there is no exception in the Refugee Convention

[01:06:08] Speaker 03:
for pandemics or communicable diseases.

[01:06:11] Speaker 03:
And that's because what the nations of the world decided was you can deal with those with mitigation, but you're not to send someone back to danger because of a communicable disease.

[01:06:23] Speaker 03:
And so I think that what we have are settled asylum laws.

[01:06:28] Speaker 03:
And so to the extent you can harmonize the two laws not to conflict, the law that's not settled in its interpretation that's never been interpreted is 265.

[01:06:39] Speaker 03:
And 265, we have multiple reasons why we don't believe 265 conflicts, because we don't believe it allows for expulsions, because we don't believe it applies to only transportation providers.

[01:06:51] Speaker 03:
But ultimately, I think you would have to read a lot into 265 to override the balance Congress has struck.

[01:06:58] Speaker 03:
with these protective statutes.

[01:07:00] Speaker 06:
Just to make sure I'm understanding this part of your argument.

[01:07:03] Speaker 06:
So let's suppose, and I know you're going to disagree with the premise, but let's just suppose to get down to the nub of it on this axis of the argument that we disagree with you on expulsion and we disagree with you on third party slash transportation.

[01:07:17] Speaker 06:
So we're only talking about the interrelationship between 265 and the title eight entitlements.

[01:07:22] Speaker 06:
And as to that,

[01:07:24] Speaker 06:
I'm not understanding how it's a harmonization to say that the Title VIII provisions should be given effect in the face of 265 any more than I understand why it's a harmonization to say the opposite.

[01:07:39] Speaker 06:
It just seems like at the end of the day, one of them is going to be viewed as a carve out to the other.

[01:07:45] Speaker 06:
Under your argument, it's that Title VIII is a carve out to what otherwise exists under 265.

[01:07:49] Speaker 06:
Under the government's argument, it's that

[01:07:51] Speaker 06:
265 is a carve out from what otherwise exists under Title 8.

[01:07:55] Speaker 06:
So it's not a harmonization.

[01:07:56] Speaker 06:
It's just a decision that one of the statutory regimes is going to govern in the face of the otherwise applicable other one.

[01:08:05] Speaker 03:
Sure, Your Honor.

[01:08:06] Speaker 03:
So I think ultimately if you got to the point where there's an irreconcilable conflict, then ultimately you would apply the later enacted statutes.

[01:08:14] Speaker 03:
That's sort of black letter law.

[01:08:15] Speaker 03:
But as to the harmonization point, I think what you would be saying is 265

[01:08:21] Speaker 03:
on the assumption it applies to individuals, not just transportation providers, and allows for expulsion, still should be understood in light of the later statutes to have Congress's policy decision to not send people back to danger.

[01:08:35] Speaker 03:
And I think that's what Brown and Williamson teaches is you had an earlier statute construed in light of later statutes and policy directives from Congress in later statutes.

[01:08:46] Speaker 03:
And so the Supreme Court went back and construed the earlier statute in light of those later enactments.

[01:08:51] Speaker 03:
I think that's what we're saying here.

[01:08:52] Speaker 03:
On the premise of your question, it applies to individuals and allows expulsion, but it doesn't mean it needs to be interpreted inconsistently with later enactments from Congress in the asylum laws.

[01:09:04] Speaker 03:
Because I think it's very clear that Congress did not want people sent back because of communicable diseases.

[01:09:11] Speaker 03:
And the Charming Betsy canon obviously comes in here, where you have the international laws being very clear, and UNHCR rarely submits

[01:09:20] Speaker 03:
an amicus brief, much less takes a position on a very specific policy in one country.

[01:09:25] Speaker 03:
But they have here to point out that the Refugee Convention does not allow for a communicable disease exception.

[01:09:33] Speaker 03:
And I would just note, just as a practical matter, with the exception of Hungary, every European Union country now has the exception allowing people to apply for asylum.

[01:09:44] Speaker 03:
There's been some differences in how they do it, but ultimately only Hungary

[01:09:49] Speaker 03:
is not allowing people to apply for asylum.

[01:09:52] Speaker 01:
And on the government's- Can I ask a question about whether these can be harmonized?

[01:10:01] Speaker 01:
Section 265 discusses communicable diseases, but it has the additional language that there is a serious danger of the introduction of such disease into the United States.

[01:10:18] Speaker 01:
Is it true that that clause there a serious danger of the introduction of such disease into the United States does not appear in any of the title eight provisions?

[01:10:33] Speaker 03:
In the asylum provisions, it does not, Your Honor.

[01:10:36] Speaker 03:
What the asylum laws and the withholding laws set out are various exceptions.

[01:10:40] Speaker 03:
A good many of them have to do with criminal convictions.

[01:10:44] Speaker 03:
in asylum, it has to do with when you apply.

[01:10:46] Speaker 03:
There's various exceptions that Congress has repeatedly enacted different exemptions, but they have never put in a communicable disease exception.

[01:10:55] Speaker 01:
And I think that's- I guess my question then is, if our duty is to try to harmonize these, then isn't that the answer as to how you can harmonize 265 with the Title 8?

[01:11:10] Speaker 01:
is that Title VIII Congress meant, well, we're not going to deny asylum to people with communicable diseases, so long as there is no serious danger of them introducing such disease into the United States.

[01:11:30] Speaker 01:
But if the Surgeon General makes that finding under 265, then the person with the communicable disease will be treated differently.

[01:11:40] Speaker 01:
Isn't that the answer as to how you harmonize these?

[01:11:43] Speaker 03:
Sure, Your Honor.

[01:11:44] Speaker 03:
I don't think that's the way we would view it, obviously, because we think that Congress, in refusing to make an exception for communicable diseases, even if you actually had a communicable disease, would have put something in.

[01:11:58] Speaker 03:
And I think the reason they didn't is because they're following international law.

[01:12:01] Speaker 03:
And if you were to reconcile the two statutes that way,

[01:12:05] Speaker 03:
you would then be creating an inconsistency between domestic law and international law.

[01:12:09] Speaker 03:
And as the charming Betsy Cannon suggests, that is something that the court should try and avoid.

[01:12:14] Speaker 03:
And so I think what you have are the domestic laws specifically based on our treaty obligations.

[01:12:21] Speaker 03:
And those treaty obligations are very clear that there is no exception even for a pandemic.

[01:12:27] Speaker 03:
And that once you have that, the domestic law should be construed consistent.

[01:12:32] Speaker 03:
And I think there's nothing in 265

[01:12:35] Speaker 03:
that's clear enough to say, yes, this overrides the later statutes.

[01:12:40] Speaker 03:
I think to the extent you can harmonize it, you have a statute that's never been interpreted.

[01:12:45] Speaker 03:
And to go to your earlier point, Judge Wilkins, it's absolutely unprecedented to be used against individuals.

[01:12:50] Speaker 03:
And contrary to my friend's explanation in 1929, that was only against ships.

[01:12:55] Speaker 03:
I think you can look at the public health historian's brief to see that it was only against ships.

[01:13:00] Speaker 03:
So this is the first time

[01:13:01] Speaker 03:
in more than 100 years of its enactment since 1893 that it's ever been used.

[01:13:06] Speaker 03:
So you have a statute that's never been used this way, has no definitive interpretation, does not have language making it clear that you should override Congress's policy judgments later on.

[01:13:19] Speaker 03:
And so you have those policy judgments that are very clear, codified in the statute based on our treaty obligations,

[01:13:26] Speaker 03:
Congress very easily could have put in.

[01:13:28] Speaker 01:
But are you telling me that it would violate international law if there were a disease with 90% or more lethality, like some of the Ebola strains that was very communicable as a virus airborne, and there was no cure, no vaccine, no effective treatment for it?

[01:13:54] Speaker 01:
that it would violate international law for the United States or any other country to bar persons from entering and expel them even if they had a valid asylum claim.

[01:14:14] Speaker 01:
If that country made a determination and it's technical scientific medical judgment that there was no safe way to kind of quarantine that person.

[01:14:26] Speaker 01:
That it would violate international law to expel that person.

[01:14:32] Speaker 03:
Your honor, so certainly your hypothetical puts this into sharp relief, but it is the position of UNHCR that there can be no exception.

[01:14:41] Speaker 03:
Now, I want to make clear, and this also is a takeaway, maybe the biggest takeaway from the Supreme Court's decisions that you referenced earlier, is ultimately, Congress could decide to change the law and pull us out of the treaty or make a reservation about that aspect of the treaty.

[01:14:58] Speaker 03:
But right now, under international law,

[01:15:01] Speaker 03:
There is no exception.

[01:15:03] Speaker 03:
And I think you look at the European Union countries, they've all managed to do this.

[01:15:08] Speaker 03:
I think your hypothetical, it does put this position to the test for UNHCR.

[01:15:15] Speaker 03:
But I think this is the position that international law has taken because the commitment to asylum is so solemn.

[01:15:23] Speaker 03:
And for the US after World War II, it has been so solemn.

[01:15:27] Speaker 03:
I think in this case, going to the equities,

[01:15:30] Speaker 03:
I think there's no reason why you would need to expel asylum seekers.

[01:15:35] Speaker 03:
And I just want to say a couple of points.

[01:15:39] Speaker 03:
I'm sorry, Judge Wilkins.

[01:15:41] Speaker 03:
No, go ahead.

[01:15:43] Speaker 03:
I think two points, one raised by Chief Judge Srinivasan and the other by Judge Walker.

[01:15:50] Speaker 03:
Judge Srinivasan's point about really, it's all about Congress settings and UCs.

[01:15:54] Speaker 03:
I want to address that.

[01:15:55] Speaker 03:
And I also want to come to Judge Walker's point about

[01:15:58] Speaker 03:
what is going on here with CDC, and I think they're related.

[01:16:04] Speaker 03:
We are not contesting, and I think this is critical, we are not contesting CDC's expert judgment.

[01:16:11] Speaker 03:
I think it is absolutely clear from CDC's August 2nd order what they are doing, the line they are, the needle they're threading, and our experts also pointing this out.

[01:16:25] Speaker 03:
What CDC is saying is, look, the whole country's open.

[01:16:28] Speaker 03:
Unaccompanied minors are processed in the exact same Congress setting, and sometimes even longer.

[01:16:35] Speaker 03:
It varies how long they spent and sometimes the numbers are exactly the same going to your earlier question to judge.

[01:16:42] Speaker 03:
In November, for example, of this year, the numbers were the same between how many expulsions of families there were and how many UCs had to be unaccompanied minors, sorry, had to be processed.

[01:16:52] Speaker 03:
And, you know, again, as Judge Walker pointed out, there has not been an affidavit by CDC.

[01:16:56] Speaker 03:
There's no administrative record, but of course, CDC was free to put in an affidavit.

[01:17:00] Speaker 03:
Everybody under the sun for the government put in an affidavit except CDC.

[01:17:05] Speaker 03:
And you also, this is mentioned in the amicus briefs because it was post-R briefs, but second in command at CDC,

[01:17:12] Speaker 03:
And Chakart recently came out of a test fight before the House that there's never been a public health justification for this.

[01:17:19] Speaker 03:
She's since resigned.

[01:17:21] Speaker 03:
And I want to get to the point about UCs, because I think that's critical.

[01:17:23] Speaker 03:
It's all about concrete settings.

[01:17:26] Speaker 03:
The whole country is open.

[01:17:27] Speaker 03:
Even a basketball arena, one-third of NBA arenas do not require testing or vaccines.

[01:17:32] Speaker 03:
CDC has not said you shouldn't ride Amtrak, airlines, domestic.

[01:17:38] Speaker 03:
All different sorts of concrete settings are open.

[01:17:41] Speaker 03:
government says, well, this Congress setting's different.

[01:17:43] Speaker 03:
Unaccompanied minors are processed in the exact same place.

[01:17:48] Speaker 03:
In the July order with unaccompanied minors, it mentions that unaccompanied minors were spending 131 hours.

[01:17:55] Speaker 03:
Still, they signed off, CDC signed off on the exemption for them.

[01:18:00] Speaker 03:
So there's, and there's really no difference.

[01:18:03] Speaker 03:
Once you get out of, and setting that it's for all the reasons, Chief Judge Srinivasan pointed out Judge Walker,

[01:18:08] Speaker 03:
then those people are just the same as anybody else.

[01:18:11] Speaker 03:
And they represented 0.1 of the traffic over Mexico, 0.01% of the traffic from Mexico.

[01:18:19] Speaker 03:
And that was even before they've opened the country up to non-essential traffic over Mexico.

[01:18:25] Speaker 01:
But isn't this in all part of an arbitrary and capricious argument that's not before us?

[01:18:31] Speaker 03:
Well, Your Honor, sure.

[01:18:33] Speaker 03:
I think it is most central to the arbitrary and capricious argument that Judge Solomon could look at on remand.

[01:18:38] Speaker 03:
But I think it does also go to the equities because I think the theme here is that the government's brief is essentially applying a different standard to family asylum seekers than they are to anybody else.

[01:18:51] Speaker 03:
And I think that's most clear if you look at the government's brief, opening brief at 50 and 51, and the reply brief at 25.

[01:18:58] Speaker 03:
Every time we point out the mitigation steps that CDC has suggested, they say, well, that would not, quote unquote, fully eliminate the risk or eliminate the risk.

[01:19:08] Speaker 03:
But of course, that can't be the standard as CDC has pointed out.

[01:19:11] Speaker 03:
It's not the standard for unaccompanied minors.

[01:19:13] Speaker 03:
It's whether it's an acceptable risk, whether it's a significant risk, a serious risk.

[01:19:18] Speaker 03:
And I think that's really what's happening here is that this is getting caught up in a debate about immigration, but it can't be that these asylum seekers are presenting more of a risk.

[01:19:28] Speaker 03:
And I think that's why Dr. Fauci came out and said, well, look, I'm not responsible for Title 42.

[01:19:33] Speaker 03:
I don't know everything about it.

[01:19:34] Speaker 01:
But still, the likelihood of success on the merits council

[01:19:39] Speaker 01:
I mean, just common sense introduce has to include expel.

[01:19:44] Speaker 01:
I mean, if a parent tells children living in the house, you're not allowed to introduce drugs into this house.

[01:19:53] Speaker 01:
And they search the kid's bedroom and find drugs.

[01:19:56] Speaker 01:
You're not gonna tell me with a straight face that the parent couldn't throw the drugs away.

[01:20:04] Speaker 01:
But the parent somehow has to quarantine the drugs because introduced doesn't mean expelled, right?

[01:20:12] Speaker 03:
So, Your Honor, as a parent, I'm going to definitely agree with you that I could throw the drugs away.

[01:20:20] Speaker 03:
But I think it's different here for a few reasons.

[01:20:23] Speaker 03:
And I don't want to spend too much time.

[01:20:24] Speaker 03:
I want to answer your question as directly as I can, but ultimately agree that the narrowest way to do this is to reconcile with the asylum.

[01:20:32] Speaker 03:
But on your expulsion point,

[01:20:33] Speaker 03:
I think a few things, where someone's liberty is at stake, there's never been a statute that allows someone's body to be taken and moved from the country without a clear statement, whether that's immigration or extradition.

[01:20:44] Speaker 03:
The other point I would make is that the government concedes, and I think everyone concedes, that this applies to U.S.

[01:20:50] Speaker 03:
citizens.

[01:20:50] Speaker 03:
So what you would be having is Congress implicitly saying, we can summarily expel

[01:20:57] Speaker 03:
US citizens, that would have been a big thing for Congress to do in 1898.

[01:21:02] Speaker 01:
But that's not before us.

[01:21:03] Speaker 01:
All that's before us is this order.

[01:21:06] Speaker 01:
This order doesn't say anything about US citizens.

[01:21:09] Speaker 01:
It explicitly excludes US citizens.

[01:21:11] Speaker 03:
Well, I think, Your Honor, you would have to bring that into bear for the reasons that the Supreme Court has laid out in the Zivitis case and the Clark case.

[01:21:19] Speaker 03:
And interpreting a statute, whether the litigants who raised the constitutional problem were actually before you,

[01:21:25] Speaker 03:
You ought to take that account into account in interpreting the statue.

[01:21:29] Speaker 03:
I think the other thing the Supreme Court has said is where it's so unprecedented, you ought to bring a skeptical eye to this but ultimately your honor I recognize that the court may be not not ready to go to that argument on the merits and so

[01:21:44] Speaker 03:
On the asylum question, that's a much more narrow issue.

[01:21:47] Speaker 06:
Before we go to asylum, let me just ask one follow-up question on the theory that's most squarely before us, which is the one that the district court adopted and that you're defending.

[01:22:00] Speaker 06:
What is the implication of that theory for whether the plaintiffs have committed a crime?

[01:22:05] Speaker 06:
Because as I understand it, that theory would mean that there's been an introduction

[01:22:12] Speaker 06:
And under the way you can see about the case, and I think your brief spells this out, there's an alternate avenue of enforcement that's available to the government, which is criminal prosecution under 271.

[01:22:24] Speaker 06:
So does that mean that for this part of the case that the plaintiff's class is subject to criminal punishment?

[01:22:37] Speaker 03:
They are your honor and I think that's one of the reasons why there are enforcement mechanisms are heavy civil penalties there are criminal penalties there's quarantine, and ultimately they can be removed on the immigration laws, and this I think scopes over all our arguments is, and does the commission of a crime not affect the entitlement to any of the relief under Title

[01:23:00] Speaker 03:
It does not, Your Honor.

[01:23:01] Speaker 03:
It has to be a more serious penalty.

[01:23:03] Speaker 03:
I would also note that even without 265, it is illegal to cross between ports of entry.

[01:23:09] Speaker 03:
That's 8 USC 1325.

[01:23:11] Speaker 03:
It's a misdemeanor.

[01:23:13] Speaker 03:
But the one thing Congress made clear is whether or not you cross between a port of entry, you can still apply for asylum.

[01:23:20] Speaker 03:
So for the government to suggest, well, they have no right to be here, therefore, it's absolutely not true.

[01:23:25] Speaker 03:
That's 8 USC 1158, the Ninth Circuit,

[01:23:29] Speaker 03:
in the East Bay case said, it doesn't matter that people cross between ports illegally.

[01:23:34] Speaker 03:
They have a right to apply for asylum.

[01:23:36] Speaker 03:
That was Judge Bybee's decision that ultimately the government asked the Supreme Court to stay and the Supreme Court refused to.

[01:23:42] Speaker 03:
So what I think there are are there are a lot of deterrents.

[01:23:46] Speaker 03:
There are penalties.

[01:23:47] Speaker 03:
It's not as if you can't do anything and you ultimately can expel them under the immigration laws.

[01:23:51] Speaker 03:
And I want to be clear about how quick that is because I think the government is suggesting a huge gulf in the time period.

[01:23:58] Speaker 03:
The expedited removal statute was enacted in 1996.

[01:24:02] Speaker 03:
What Congress thought was we need a swift way to remove people right at the border, the people who are covered by the CDC order, in effect.

[01:24:09] Speaker 03:
And so Congress said, we're going to allow expedited removal.

[01:24:13] Speaker 03:
If you're not applying for asylum, that can be a matter of minutes.

[01:24:16] Speaker 03:
But a supervisor just has to sign off.

[01:24:19] Speaker 03:
They have to ask you, do you want to apply for asylum?

[01:24:21] Speaker 03:
If no, the supervisor signs off.

[01:24:24] Speaker 03:
You're gone, right out of the country.

[01:24:26] Speaker 03:
If you want to apply for asylum, you can, but it's a very quick timetable that under the regulations can last about a week.

[01:24:35] Speaker 03:
And on that, Congress, again, was very clear.

[01:24:38] Speaker 03:
You still have to be allowed to apply for asylum, even if this expedited removal process is going to be applied to you.

[01:24:45] Speaker 03:
And again, put no exceptions for communicable diseases.

[01:24:49] Speaker 03:
So I think it's much quicker.

[01:24:51] Speaker 03:
And so I take Judge Wilkins

[01:24:54] Speaker 03:
hypothetical and it's a fair one, but I think there are ways to deal with it.

[01:24:59] Speaker 03:
Ultimately, Congress can change it, but I think international law takes the idea that people running for their lives have to be allowed to apply.

[01:25:08] Speaker 03:
There have to be mitigation steps taken.

[01:25:10] Speaker 03:
If we ever get to a disease where there are literally no way to handle it,

[01:25:15] Speaker 03:
I ensure Congress will react to that and perhaps.

[01:25:18] Speaker 06:
So I guess I guess the question is, I guess the question is whether to 65 already did that and and forecast that possibility and left it up to the CDC director at that time the search in general I guess but the CDC director, as to whether we're in that situation now.

[01:25:35] Speaker 06:
I take the point that under the existing laws under Title 8, Congress has already struck a balance between somebody who has a communicable disease and whether they're nonetheless entitled to apply for asylum.

[01:25:48] Speaker 06:
That balance has been struck.

[01:25:50] Speaker 06:
And I also take the point that because having a communicable disease is a ground for inadmissibility, then we're already talking about

[01:25:58] Speaker 06:
people who at least pose some danger to the United States because otherwise why make it a ground of inadmissibility if they're not going to pose a danger to the United States in the first place.

[01:26:06] Speaker 06:
That's the reason the communicable disease is a problem because it could be introduced.

[01:26:10] Speaker 06:
But as Judge Wilkins points out, 265 talks about a serious danger.

[01:26:14] Speaker 06:
And the argument that the government makes is that

[01:26:18] Speaker 06:
It's only a narrow emergency situation in which you have the serious danger and Congress hasn't yet struck that balance.

[01:26:25] Speaker 06:
That's 265 does that.

[01:26:27] Speaker 06:
265 says in this narrow necessarily historically almost unprecedented circumstances in which this kind of authority can be asserted, Congress did strike the balance and say that 265 governs even if in non-emergency situations,

[01:26:46] Speaker 06:
the entitlement to asylum would overcome somebody who has a communicable disease?

[01:26:52] Speaker 03:
Sure, Your Honor.

[01:26:53] Speaker 03:
So I think what we have then is a statute in 1893 that's not specific to asylum and protection of what it might overcome.

[01:27:03] Speaker 03:
So there's no sort of clear statement in the statute.

[01:27:06] Speaker 03:
And I think that's sort of like Brown and Williamson.

[01:27:08] Speaker 03:
You have a statute that's not been definitively interpreted

[01:27:12] Speaker 03:
and you then get later statutes where Congress is making clear what they think about the very specific issue.

[01:27:18] Speaker 03:
And I think that's the asylum laws.

[01:27:20] Speaker 03:
So I don't think you're foreclosed from interpreting 265 to say, well, there's going to be an exception because I don't think 265 directly addressed it.

[01:27:30] Speaker 03:
And I want us to take a step back because even if it goes more to our first two arguments that there's no expulsion only applies to transportation providers, I do think some of the historical context is worth emphasizing.

[01:27:43] Speaker 03:
It may seem implausible in today's day that Congress would have only regulated transportation providers or not put in an expulsion for individuals.

[01:27:52] Speaker 03:
The reason is because two things were markedly different back in 1893.

[01:27:56] Speaker 03:
The first was the immigration landscape.

[01:27:59] Speaker 03:
As the legislative history points out, 95% of immigrants came just to the New York Harbor.

[01:28:06] Speaker 03:
And that doesn't include Boston and San Francisco harbors.

[01:28:09] Speaker 03:
So virtually all immigrants came by ship to the harbor.

[01:28:13] Speaker 03:
So there was very little land migration.

[01:28:15] Speaker 03:
Secondly, the federal government really wasn't involved in the public health sphere.

[01:28:20] Speaker 03:
They were just tipping their toe in in 1893, but they were relying on the states.

[01:28:26] Speaker 03:
And the historian's brief lays this out.

[01:28:29] Speaker 03:
The states could criminalize, they even expelled people.

[01:28:32] Speaker 03:
And the federal government couldn't practically actually enforce

[01:28:36] Speaker 03:
the border.

[01:28:36] Speaker 03:
They did not have agents along the border.

[01:28:38] Speaker 03:
The states did that.

[01:28:40] Speaker 03:
So for the Congress looking at this, they would have said, well, there's very few people coming at land.

[01:28:45] Speaker 03:
We don't have agents along the border.

[01:28:47] Speaker 03:
We're going to leave that to the states.

[01:28:49] Speaker 03:
So I think what's happening is the government is suggesting, well, it couldn't be that they wouldn't regulate individuals back in 1893.

[01:28:57] Speaker 03:
But the fact is, again, as the historians brief lays out, that's what they were doing because that was the landscape.

[01:29:02] Speaker 03:
But even if you don't accept either of those two arguments,

[01:29:05] Speaker 03:
I think there's nothing in that statute that says you can't reconcile it with very clear pronouncements by Congress later on.

[01:29:15] Speaker 06:
And what about the language that says suspension of the right to introduce?

[01:29:18] Speaker 06:
Because if we're past the transportation part, I take it, I know that you have the response that what that was about was licenses, but for purposes of this part of the argument, we're already past that.

[01:29:30] Speaker 06:
Then the suspension of the right to introduce

[01:29:34] Speaker 06:
It could be that the right to introduce is the sort of thing that asylum covers.

[01:29:38] Speaker 06:
And what 265 contemplates is suspension of that kind of right.

[01:29:42] Speaker 03:
Sure, Your Honor.

[01:29:43] Speaker 03:
And that is the government's argument.

[01:29:44] Speaker 03:
I think what we believe is that that's not sufficiently clear language.

[01:29:50] Speaker 03:
And it was in a dependent clause.

[01:29:52] Speaker 03:
And I think, as Your Honor just pointed out, it's most naturally read to suspend the license of a shipping company.

[01:29:58] Speaker 03:
And I think what it goes to is the larger point of, is there anything in 265 that is so clear that it's gonna allow the CDC director to wipe away all our asylum laws, withholding laws, cat laws?

[01:30:13] Speaker 03:
That really is an enormous change to the landscape.

[01:30:15] Speaker 03:
But I know the major questions issue that's raised in the Cato brief has been used with economic questions, but I think to wipe away

[01:30:26] Speaker 03:
all of the US's protection statutes and violation of international law would be an enormous step.

[01:30:32] Speaker 03:
And I think there's nothing that suggests you cannot reconcile 265.

[01:30:37] Speaker 03:
And it would be very different, I think.

[01:30:39] Speaker 03:
I don't know that the legal question would be different, but I think we might be in a different conversation if there was really no way to mitigate.

[01:30:46] Speaker 03:
And one thing I want to mention about what my friend said, and my friend said, well, we really want to do this.

[01:30:52] Speaker 03:
We're working at it.

[01:30:54] Speaker 03:
That was a fine response, the first month, second month, third month.

[01:30:58] Speaker 03:
But we're two years into this and we're six months from CDC saying, you can do this.

[01:31:03] Speaker 03:
Here's the roadmap.

[01:31:05] Speaker 03:
You've done it for unaccompanied minors, or at least HHS has done it for unaccompanied minors, put up 14 new emergency shelters in only two months, 20,000 new beds.

[01:31:15] Speaker 03:
Here's the roadmap for you to do it.

[01:31:17] Speaker 03:
And so I think what Judge Sullivan just bringing a common sense approach to it said is,

[01:31:21] Speaker 03:
look, at some point, this is just a matter of allocating resources.

[01:31:25] Speaker 03:
CDC is giving you a roadmap how to do this.

[01:31:28] Speaker 03:
It's been a long time.

[01:31:30] Speaker 03:
It seems like DHS needs a little bit of a push.

[01:31:33] Speaker 03:
There's something going on here that can't be strictly about public health, because as Judge Walker pointed out, when you start, and Chief Judge Srinivasan pointed out, when you start comparing the various groups

[01:31:45] Speaker 03:
it's clear that these asylum seekers don't prevent such a different risk.

[01:31:49] Speaker 03:
So we are not taking issue with CDC.

[01:31:51] Speaker 03:
We are simply saying at some point DHS needs to comply with CDC.

[01:31:55] Speaker 03:
And it's been a long, long time now.

[01:31:58] Speaker 03:
And we, as your honors know, we put this case on hold.

[01:32:02] Speaker 01:
But how are we supposed to look at that?

[01:32:04] Speaker 01:
I mean, either the statute, we're to decide whether the statute gives the government the authority to do this or not.

[01:32:14] Speaker 01:
Whether it's wise for them to be doing it or not, I don't think it's for us to assess.

[01:32:20] Speaker 01:
Whether they could avoid doing this if they allocated their resources differently or more efficiently or more wisely is not for us to assess.

[01:32:32] Speaker 01:
We're assessing whether the statute gives them this authority.

[01:32:35] Speaker 01:
So what are we supposed to do with that argument that you're making?

[01:32:41] Speaker 03:
Sure, Your Honor.

[01:32:42] Speaker 03:
And I apologize if I was conflating two different parts of our case.

[01:32:46] Speaker 03:
But I was simply going to the, I moved without much of a transition.

[01:32:50] Speaker 03:
I apologize for that.

[01:32:51] Speaker 03:
Moving to the equities arguments, simply saying, I think that they can reconcile with the asylum withholding and CAD statutes.

[01:33:00] Speaker 03:
And I don't think it raises the specter.

[01:33:03] Speaker 03:
Going to the balance of harms, it raises the specter that Your Honor's hypothetical presented, because I do think

[01:33:10] Speaker 03:
And if anything like that ever came about, it may be that they don't have the power to do it, but the injunction wouldn't be proper.

[01:33:16] Speaker 03:
You can deal with that at the equities.

[01:33:18] Speaker 03:
But ultimately, I think if something catastrophic like that ever did happen where there were literally no vaccines mitigation steps, I think that's probably where Congress steps in and says, we're bowing out of the treaty, or maybe even the international community says, we need to adjust.

[01:33:33] Speaker 03:
I was simply going to the equities, and I think there's absolutely no question

[01:33:38] Speaker 03:
that the theme here is that the government's brief is treating asylum seekers very differently.

[01:33:43] Speaker 03:
All the mitigation steps that have been recommended by everyone are not enough according to the government because they don't fully eliminate.

[01:33:50] Speaker 03:
And again, CDC has repeatedly said it cannot be a zero risk.

[01:33:53] Speaker 03:
They're letting people go to basketball games, fly on planes, Amtrak, unaccompanied minors.

[01:33:59] Speaker 03:
The other thing I would make as a point of comparison is in litigation over

[01:34:05] Speaker 03:
ice facilities where people are being detained long term.

[01:34:08] Speaker 03:
The government has repeatedly said in every brief, we don't have to eliminate all risks, just have to make it acceptable and mitigation steps are sufficient like testing and various things.

[01:34:20] Speaker 03:
So I think even there the government has made it clear there is absolutely no way there could be zero risk.

[01:34:26] Speaker 03:
And so they're applying a different standard.

[01:34:28] Speaker 03:
I think that's not dissimilar to the contradictions that Judge Walker pointed out with the MPP briefing.

[01:34:35] Speaker 03:
about individual harms.

[01:34:36] Speaker 03:
And I haven't, I wanna just turn for one second to the individual harms.

[01:34:40] Speaker 03:
I don't need to dwell on, I think Judge Walker laid them out carefully, but it's literally like the families are walking a plank and the US government knows it.

[01:34:47] Speaker 03:
US government's pushing them over the bridge, walks as they walk over the bridge.

[01:34:52] Speaker 03:
The cartels are sitting there waiting for them.

[01:34:54] Speaker 03:
Mothers and fathers are holding their little kids' hands, knowing that the cartels are at the other end.

[01:34:59] Speaker 03:
In some regions, between 20 and 40% of the families are being targeted.

[01:35:03] Speaker 03:
and then for kidnapping.

[01:35:05] Speaker 03:
And then after the kidnapping, the most brutal treatment, sexual assault, mothers being assaulted in front of their kids.

[01:35:12] Speaker 03:
And so for the government to say, well, the transmission risks for this one group outweigh all those harms, I don't think is plausible.

[01:35:20] Speaker 03:
And I think Judge Sullivan was right to find that the balance of equities favors us.

[01:35:25] Speaker 01:
But again, what's your response to the government's argument that

[01:35:32] Speaker 01:
that this case is not really like the OSHA reg, that it's really more like the Medicaid reg.

[01:35:42] Speaker 03:
Yeah, I think, Your Honor, that what the Supreme Court said in the Medicare is the law was very specific, that they had done all these types of things, protected from infection and answered questions, argument that, sorry, that the companies

[01:36:03] Speaker 03:
arguments at oral argument that they could do various measures, make them wear gloves.

[01:36:09] Speaker 03:
So it was just a matter of degree, I think.

[01:36:12] Speaker 03:
And the statute was much clearer.

[01:36:13] Speaker 03:
I think this is closer to OSHA where it was unprecedented this time.

[01:36:17] Speaker 03:
And this is really night and day from regulating ships.

[01:36:22] Speaker 03:
In 1893, we have gone through a number of pandemics, including the Spanish Flu and meningitis.

[01:36:27] Speaker 03:
They have never used it to expel people.

[01:36:30] Speaker 03:
And so the other thing I would, and with all due respect to my friend on the other side, the government's letter said, well, this is only non-citizens, a certain group of non-citizens being expelled.

[01:36:41] Speaker 03:
It's not economic impact on Americans.

[01:36:45] Speaker 03:
I would submit that.

[01:36:46] Speaker 03:
I don't want to minimize any of the economic impact, but I would submit that the harm here is equally great.

[01:36:53] Speaker 03:
And what the Supreme Court, to the extent there's a takeaway in all the Supreme Court cases, and I think there is,

[01:36:59] Speaker 03:
You can't factor in the dangers of COVID in interpreting the statute.

[01:37:03] Speaker 03:
You need to find that very specific statutory authority.

[01:37:07] Speaker 03:
And you ought to be very skeptical if it's never been used before.

[01:37:10] Speaker 03:
And this statute goes way back, obviously, before the OSHA statute.

[01:37:14] Speaker 03:
The statute goes back to 1893.

[01:37:16] Speaker 03:
And again, I would urge the court to look at the historians brief because the sample the government gave of it being used in 1929, which is already almost 100 years,

[01:37:25] Speaker 03:
simply wrong.

[01:37:26] Speaker 03:
That was only for transportation entities.

[01:37:28] Speaker 03:
So it's never been used for expulsions and certainly not after Congress said we have to have these asylum laws.

[01:37:35] Speaker 03:
We're never going to allow what happened after World War II to happen again.

[01:37:41] Speaker 04:
The balance of equities, I can imagine two very different responses, different from each other, but that would be responses to your argument on the equities.

[01:37:55] Speaker 04:
One is an argument, neither endorsing nor criticizing either of these arguments.

[01:38:01] Speaker 04:
One is an argument that we've heard that

[01:38:07] Speaker 04:
you'll ultimately have a better humanitarian situation with fewer people taking great risks to cross the border if the government makes it extremely painful on them when they are apprehended.

[01:38:26] Speaker 04:
So that's one.

[01:38:29] Speaker 04:
I'd like you to respond to that.

[01:38:29] Speaker 04:
I'll give you the other one as well.

[01:38:31] Speaker 04:
It's very different.

[01:38:33] Speaker 04:
We heard in the vaccine oral argument, Justice Breyer asked,

[01:38:37] Speaker 04:
on multiple occasions a question along these lines, he would say to the challengers, I'll assume your argument is reasonable.

[01:38:46] Speaker 04:
I'll assume the government's argument is reasonable rather than exactly trying to figure out, you know, which is better.

[01:38:54] Speaker 04:
There have been, he had mentioned the statistic of 750,000 new COVID cases yesterday, he said.

[01:39:03] Speaker 04:
He said, I mean, there were three quarters of a million new cases yesterday, new cases, nearly three quarters, seven and some odd thousand.

[01:39:09] Speaker 04:
Okay.

[01:39:11] Speaker 04:
And he said, the hospitals are today, yesterday full, almost to the point of the maximum that ever seen in this disease.

[01:39:16] Speaker 04:
Okay.

[01:39:17] Speaker 04:
And he said, are you telling me that when I consider the state factors or when this court considers preliminary injunction factors,

[01:39:23] Speaker 04:
that that really shouldn't just be the end of the case.

[01:39:27] Speaker 04:
Uh, their covid is covid is prevalent and the government is trying to protect people from covid and we ought to just when we balance equities, you know, just do whatever the government and the CDC say.

[01:39:40] Speaker 03:
Sure, Your Honor.

[01:39:41] Speaker 03:
Maybe take those in the order you gave them to me.

[01:39:45] Speaker 03:
One is on the deterrence.

[01:39:46] Speaker 03:
And I think that goes to a point that you, Judge Trina Boston asked, which is

[01:39:51] Speaker 03:
isn't really what's going on here in light of the lack of a CDC affidavit and other indications that this is being used as an immigration statute.

[01:40:01] Speaker 03:
People can debate whether the border policy is working or the asylum policy is working, but ultimately this can't be used as an immigration provision to deter people.

[01:40:11] Speaker 03:
And I think that relates to your second point and what other people are coming over.

[01:40:15] Speaker 03:
One point I neglected to mention is that

[01:40:18] Speaker 03:
At one point, the government was safely doing 70,000 families, processing 70,000 families.

[01:40:24] Speaker 03:
They're only doing 30,000 families now.

[01:40:27] Speaker 03:
So it's absolutely clear they can do more.

[01:40:29] Speaker 03:
But as to Judge Justice Breyer's point, I mean, obviously he was in dissent in one of the cases, but putting that aside, I think it goes to there they were simply asking, can we force mitigation steps here?

[01:40:44] Speaker 03:
We were saying, even with mitigation steps, we want to actually expel you.

[01:40:49] Speaker 03:
And so all we're saying is that the mitigation steps are sufficient to make family asylum seekers the same as all the other groups who are being allowed to do stuff.

[01:40:59] Speaker 03:
I think CDC is saying, yes, go to a basketball game, 15,000 people, as long as we urge you to vaccinate, we urge you to wear a mask, but the arenas are not requiring that.

[01:41:12] Speaker 03:
in many, many college arenas and one third of the FDA areas.

[01:41:15] Speaker 03:
CDC is not saying don't ride Amtrak, don't go on planes.

[01:41:19] Speaker 03:
And so I think ultimately that's what's going on here is that we can't have a zero risk.

[01:41:25] Speaker 03:
We're never gonna have a zero risk.

[01:41:26] Speaker 03:
And asylum seekers can't be singled out for worse treatment and have a zero risk applied to them, especially not where the harm is so great.

[01:41:35] Speaker 03:
Whatever.

[01:41:36] Speaker 01:
But people have a choice to whether to go to the basketball game, to get on Amtrak, to get on an airplane,

[01:41:43] Speaker 01:
you know, border patrol officer who's working, you know, they have to do their job.

[01:41:52] Speaker 01:
And to the extent that they are exposed to increased risk from congregate settings from these people, they're not similarly situated to those other circumstances.

[01:42:07] Speaker 01:
They're basically kind of forced into this.

[01:42:10] Speaker 01:
And isn't that part of what this order is trying to prevent?

[01:42:16] Speaker 03:
Sorry, Your Honor.

[01:42:19] Speaker 03:
A few responses.

[01:42:21] Speaker 03:
One is I think that the government had been making that argument much more forcefully and CDC had been pointing it out much more forcefully in the very beginning.

[01:42:29] Speaker 03:
Now that there are vaccines and there's a mandate for federal employees and most CBP officers are now vaccinated

[01:42:36] Speaker 03:
I don't think that's an argument that can be made that the border patrol is any different than other people who come into contact.

[01:42:44] Speaker 03:
The other point is that they're already coming into contact with unaccompanied minors.

[01:42:48] Speaker 03:
The CDC has said that's fine.

[01:42:51] Speaker 03:
So I think ultimately they're not that much different.

[01:42:54] Speaker 03:
The people who work in the arenas, the people who work on the planes, I think once you get out of that Congress setting, then the order can no longer be justified.

[01:43:03] Speaker 03:
And within the Congress setting,

[01:43:05] Speaker 03:
I think that's why the government and CDC have pulled back from that argument because of the vaccinations, because they're saying it's okay for unaccompanied minors to be exempted.

[01:43:15] Speaker 03:
And so, I want to be clear, Judge Williams, we are not being cavalier.

[01:43:20] Speaker 03:
We hope we are not coming off as cavalier about COVID, but I do think the country now has moved

[01:43:27] Speaker 03:
And I think more importantly, CDC has said we've moved to a place where mitigation steps are the solution.

[01:43:34] Speaker 03:
And notably, not only has CDC not put an affidavit in and made that clear in its August 2nd order that mitigation steps are the way to go, but I am not aware of any real public health support for this CDC order.

[01:43:46] Speaker 03:
We've put in affidavits from former CDC officials and other public health experts saying that mitigation steps are the way to go.

[01:43:53] Speaker 03:
What's really happening is DHS is refusing

[01:43:57] Speaker 03:
take those steps.

[01:43:58] Speaker 03:
And I know that they've said that they're trying and they're, they want to do it.

[01:44:01] Speaker 03:
But now it's been two years and it's been six months, even since the August 2nd order at an absolute, absolute minimum.

[01:44:09] Speaker 03:
One thing this court can do is send it back to judge Sullivan and say, does DHS have a plan for putting these mitigation steps in place?

[01:44:20] Speaker 03:
Because right now, DHS is refusing to even say how the mitigation steps are coming along.

[01:44:26] Speaker 03:
And you see in their affidavits, for example, the Chihulyan affidavit, where he says, these Congress settings were not designed for this.

[01:44:35] Speaker 03:
Well, that's all well and good that they weren't designed, but now it's been two years to change them.

[01:44:40] Speaker 03:
I mean, it can't be that hard to build outdoor processing.

[01:44:43] Speaker 03:
And yet they haven't done that or not sufficiently.

[01:44:47] Speaker 03:
The NGOs are saying, we have more capacity.

[01:44:50] Speaker 03:
We'll help you.

[01:44:51] Speaker 03:
And ultimately, the government know this is not asking the government to reverse gravity.

[01:44:55] Speaker 03:
They know how to do this because they've done it and safely process at the time of the order.

[01:44:59] Speaker 03:
86% of the families.

[01:45:02] Speaker 03:
We were talking about another 8,000 families that represents the 14%.

[01:45:06] Speaker 03:
That's 267 a day.

[01:45:09] Speaker 03:
That's half a plane load coming for the entire southern border.

[01:45:13] Speaker 03:
We had ever said to TSA, can you process it for 267 people from a plane load in the entire US?

[01:45:20] Speaker 03:
And they said, well, we can't do it.

[01:45:22] Speaker 03:
It's been two years.

[01:45:23] Speaker 03:
That would be inconceivable.

[01:45:26] Speaker 03:
Right now, they're processing 30,000 people.

[01:45:29] Speaker 03:
They absolutely can do this.

[01:45:31] Speaker 03:
And again, I'm just stressing with Judge Sullivan.

[01:45:33] Speaker 03:
I think looking at it from a common sense standpoint said, if there's a likelihood of success on the merits, which yes, Judge Walters, we absolutely have to show that, but if there is,

[01:45:42] Speaker 03:
Ultimately, there is extraordinary harm to these families, maybe out of sight, out of mind to most of the American public, but just really gruesome harm.

[01:45:51] Speaker 03:
And DHS can do this.

[01:45:53] Speaker 03:
They're doing it for unaccompanied minors.

[01:45:54] Speaker 03:
They're doing it around the country.

[01:45:57] Speaker 03:
So ultimately, I think that's where the case comes down to.

[01:46:00] Speaker 03:
And I would urge the court to at least take the narrowest ground and reconcile with, as Brown and Williams did with the later statutes, the Congress has specifically looked at this issue.

[01:46:14] Speaker 06:
Make sure my colleagues don't have additional questions for you, Mr. Gelernt.

[01:46:19] Speaker 06:
Thank you.

[01:46:20] Speaker 06:
Thank you, Your Honors.

[01:46:22] Speaker 06:
Ms.

[01:46:22] Speaker 06:
Swingle will give you three minutes for rebuttal.

[01:46:24] Speaker 05:
Thank you, Your Honor.

[01:46:26] Speaker 05:
I'd like to just turn to this question where Mr. Gelernt left off and which was a focus of the court's questioning earlier, which is how to best harmonize what seems to be his primary argument today, how to harmonize section 265

[01:46:40] Speaker 05:
and international treaties providing a right to apply for asylum or for relief under the convention against torture.

[01:46:48] Speaker 05:
So this perhaps seems self-evident, but I would note that those conventions, the Convention Against Torture and the Refugee Protocol, which is the only one that the United States is a party to, are non-self-executing treaties.

[01:47:04] Speaker 05:
They are non-self-executing treaties that Congress then implemented into domestic law

[01:47:09] Speaker 05:
And so I think it is extremely odd to invoke the charming Betsy principle to try and harmonize the statutes.

[01:47:17] Speaker 05:
I think the question is, what did Congress intend?

[01:47:21] Speaker 05:
And so the best evidence, I think, of what Congress intended is to put those statutes side by side.

[01:47:28] Speaker 05:
And when we look at section 265, I think there are multiple indicia that Congress intended for it to displace and be the more specific rule of decision

[01:47:39] Speaker 05:
in contradistinction to the immigration laws.

[01:47:43] Speaker 05:
First, I think as Judge Wilkins pointed out, it applies only where there is a determination of a serious danger of the introduction of a communicable disease from a foreign country into the United States.

[01:47:55] Speaker 05:
We know from the title of the section when it was originally enacted, it was entitled suspension of immigration during existence of contagious diseases.

[01:48:07] Speaker 05:
we can look to see that the president was originally given the authority to invoke authority under this section.

[01:48:13] Speaker 05:
It was considered so significant a power to be invoked that unlike the other provisions of the 1893 act, which were invoked at the authority of the secretary of treasury or of various health officials, this was the president alone who had the power

[01:48:34] Speaker 05:
And it's notable that even in the current version of 265, the Surgeon General, now the CDC, has to act in accordance with regulations approved by the President, which I think is reflective of sort of the significant nature of the decision being made under this provision.

[01:48:52] Speaker 05:
And then I think we can look to, as we've noted, that the determination is that a suspension of the right to introduce persons

[01:49:03] Speaker 05:
is necessary to protect the public health.

[01:49:05] Speaker 05:
And that was intended to confer the authority to suspend immigration, which I think necessarily envisions suspension of what would be the otherwise applicable immigration laws.

[01:49:18] Speaker 05:
And even today, the section is entitled Suspension of Entries from Designated Places.

[01:49:25] Speaker 05:
And so I think together that all manifests a pretty clear congressional intent that this statute should take precedence

[01:49:33] Speaker 05:
in the extraordinary circumstances in which it is necessary to invoke this authority.

[01:49:38] Speaker 05:
And I just want to, one final point.

[01:49:43] Speaker 05:
It is true that the only time that the president has previously invoked section 265 to suspend entry, it related to entry from foreign countries.

[01:49:54] Speaker 05:
But I think that tells you very little about what the outer scope of the authority is, obviously.

[01:50:00] Speaker 05:
In 1929, when you're talking about passengers coming from China and the Philippines to the United States, it would not be surprising that they would be traveling by vessel.

[01:50:13] Speaker 05:
But I would also note that the actual suspension order was not by its terms so limited.

[01:50:19] Speaker 05:
And it referred to introduction directly or indirectly and by transshipment or otherwise.

[01:50:27] Speaker 06:
Thank you, counsel.

[01:50:29] Speaker 06:
If my colleagues don't have additional questions for you, thank you to you.

[01:50:34] Speaker 06:
Thank you to both counsel for your arguments this morning.

[01:50:36] Speaker 06:
We will take this case under submission.