[00:00:00] Speaker 02: Case number 21-5148, breaking the door, Ed Al at Balance versus United States Department of Homeland Security. [00:00:08] Speaker 02: Mr. Cleveland for the balance, Mr. Silverman for the appellee. [00:00:15] Speaker 01: Good morning. [00:00:15] Speaker 01: Good morning. [00:00:17] Speaker 01: May it please the court, I am David Cleveland, counsel for Ms. [00:00:20] Speaker 01: Gattori and others. [00:00:22] Speaker 01: I'd like to reserve two minutes of my time for rebuttal. [00:00:26] Speaker 01: Large number of asylum applicants are still waiting. [00:00:29] Speaker 01: They have been treated unfairly. [00:00:32] Speaker 01: The claims remain unaddressed. [00:00:34] Speaker 01: Glass action device will give them justice. [00:00:37] Speaker 01: Otherwise, there's no remedy for them. [00:00:41] Speaker 01: DHS will get away with it. [00:00:43] Speaker 01: That might influence the behavior of DHS in the future. [00:00:48] Speaker 01: The district court said it was not unsympathetic to this group, a double negative. [00:00:53] Speaker 01: but it shows the district court was aware of this group. [00:00:56] Speaker 01: This group deserves a remedy. [00:00:58] Speaker 01: Class actions protect people who are unaware of their rights. [00:01:02] Speaker 01: Remember the Fair Credit Reporting Act? [00:01:06] Speaker 05: Mr. Cleveland, the district court understood that the only aspect of the putative class claims that remained unresolved was [00:01:18] Speaker 05: segregation and production of the portions of the class member assessments to refer that were not properly withheld under exemption five. [00:01:27] Speaker 05: And the district court concluded that that further action on the part of DHS would require individualized consideration. [00:01:39] Speaker 05: What was erroneous about that? [00:01:43] Speaker 01: That's true for all class actions, Your Honor. [00:01:46] Speaker 01: The question is, does commonality prevail? [00:01:48] Speaker 01: Is there typicality? [00:01:49] Speaker 01: DHS does not argue that in their briefs that there's a lack of commonality, a lack of typicality. [00:01:55] Speaker 01: In an asylum officer assessment, the only issue is, do we give three paragraphs or do we give seven paragraphs? [00:02:01] Speaker 01: That can be determined. [00:02:02] Speaker 01: The asylum officer assessment starts off with paragraphs of facts. [00:02:07] Speaker 05: So in 30 seconds... I understand the factual circumstances. [00:02:11] Speaker 05: I'm trying to figure out what is and isn't left of your claim. [00:02:14] Speaker 05: And the district court concluded that you fail to meet representativeness because once the named plaintiffs, reasonably segregable portions have been released to them, he thought that the named plaintiffs claims were no longer representative of the absent class members claims. [00:02:40] Speaker 05: Did you contest that? [00:02:42] Speaker 05: Did you appeal that? [00:02:44] Speaker 05: Determination? [00:02:45] Speaker 01: Your Honor, I would phrase it that the district court said because the named representatives were given their paragraphs, they were no longer members of the class. [00:02:55] Speaker 01: That's how I would phrase what the district court did. [00:02:57] Speaker 01: That is erroneous. [00:02:58] Speaker 01: And yes, we argued that was clearly erroneous. [00:03:00] Speaker 01: The mere fact that the movement of the individual does not prevent that person from being class representative. [00:03:06] Speaker 05: Well, it does in some situations. [00:03:08] Speaker 01: Some, but at the time of the filing of the complaint, all of the plaintiffs had valid claims. [00:03:17] Speaker 01: DHS agrees with me on page 34 of their brief that the class representative has two claims, a claim for their own documents and a claim to be a class representative. [00:03:29] Speaker 01: The history of this case includes eight plus two plus 30. [00:03:33] Speaker 05: Page 34 of their brief, I don't see a page 34. [00:03:38] Speaker 05: I'm looking at the right case and the right brief. [00:03:43] Speaker 05: It's 25 pages long? [00:03:48] Speaker 01: There's different page numbers, I think. [00:03:54] Speaker 05: Anyway, you can make your substantive point. [00:03:56] Speaker 05: Go ahead. [00:03:59] Speaker 01: 8 plus 2 plus 3 is what the court should keep in mind. [00:04:04] Speaker 01: Eight plaintiffs step forward. [00:04:05] Speaker 01: We want our paragraphs. [00:04:06] Speaker 01: We want a class action. [00:04:08] Speaker 01: DHS gives the eight paragraphs and then says, Mrs. Mu, go away. [00:04:12] Speaker 01: Two more plaintiffs step forward, Mr. Dramu and Ms. [00:04:16] Speaker 01: Mulango. [00:04:17] Speaker 05: What relief exactly is the class seeking? [00:04:22] Speaker 05: I understand there were several prayers for relief. [00:04:27] Speaker 05: But one claim was a policy or practice claim against the policy of DHS, which was if exemption five applies at all to an assessment for referral, then we don't look at it for segregability. [00:04:46] Speaker 05: That was a policy or practice claim. [00:04:49] Speaker 05: And I take it that you, [00:04:53] Speaker 05: that that was mooted by DHS changing its policy. [00:04:57] Speaker 05: Do you disagree about that? [00:04:59] Speaker 01: No, I agree. [00:05:00] Speaker 01: DHS did change its policy as a result of the complaint. [00:05:03] Speaker 05: And you're arguing that the change in policy was sufficient to moot that claim? [00:05:09] Speaker 01: Yes, we acquiesce that they say that in the future they shall give portions of paragraphs. [00:05:16] Speaker 01: We accept that. [00:05:17] Speaker 05: And that meets the Supreme Court's and our court's mootness standard in your view? [00:05:22] Speaker 01: Yes. [00:05:23] Speaker 01: I'm sorry, what? [00:05:24] Speaker 05: It's moot. [00:05:25] Speaker 05: That renders that policy or practice claim moot. [00:05:27] Speaker 05: So what you have left is whether asylum seekers who filed FOIA claims and during the time period of the proposed class, but were not the named plaintiffs, whether those people are entitled to relief [00:05:50] Speaker 05: That's what's at issue in your view. [00:05:54] Speaker 01: Correct. [00:05:54] Speaker 01: The people who made FOIA request from 2009 to December, 2017, that group of people, they're unaware of their rights. [00:06:03] Speaker 01: They don't know what's going on. [00:06:04] Speaker 05: Now, if there were a class certified, isn't it the law under Eisen versus Karla and Jacqueline that the plaintiffs would have to pay for no. [00:06:13] Speaker 01: Well, perhaps the plaintiffs, the district court, [00:06:19] Speaker 01: 26C says, or 23C, they shall get such notice as is appropriate. [00:06:26] Speaker 01: And that's- Right. [00:06:26] Speaker 05: And one of the things I read your brief to be saying is that they're entitled to notice and that they shouldn't have to file new FOIA claims. [00:06:34] Speaker 01: Indeed. [00:06:34] Speaker 01: The question of what is appropriate notice is best resolved by the district court. [00:06:40] Speaker 01: There's different ways to give notice by email, by publication. [00:06:44] Speaker 01: DHS has based other class action lawsuits. [00:06:46] Speaker 01: They make notices on their webpage. [00:06:50] Speaker 01: That's a question for, anyway, that's what we're seeking is the class shall be certified and then we figure out what kind of notice to give to the class members. [00:06:59] Speaker 05: And which portion of rule 23B are you proceeding under here? [00:07:03] Speaker 01: B3. [00:07:04] Speaker 05: Not B2. [00:07:05] Speaker 01: Correct. [00:07:07] Speaker 01: They have changed their policy, but however, for the people that don't know about that, 2009 to December 2017, that group of people, they're waiting for relief. [00:07:19] Speaker 05: And the relief, again, I mean, notice is typically part of a class proceeding. [00:07:26] Speaker 05: It is not typically the relief. [00:07:29] Speaker 05: And that's the only thing I identified in your appellate brief is that you're seeking notice on behalf of the absent class, imputed class members. [00:07:40] Speaker 01: That's true. [00:07:40] Speaker 01: And then each person who wants to can step forward and we'll figure out a remedy for those people. [00:07:46] Speaker 01: How much work do they have to do to be identified? [00:07:49] Speaker 05: So what's the common question that remains? [00:07:52] Speaker 05: The common question. [00:07:55] Speaker 05: If the question that they're entitled to reasonably segregable portions under FOIA has been resolved, the remaining common question is what? [00:08:07] Speaker 01: A point that has been conceded by DHS that [00:08:10] Speaker 01: During the time period, 2009 to 2017, DHS did not even attempt to give any remedy to the class. [00:08:17] Speaker 01: They did not attempt to segregate. [00:08:20] Speaker 01: We're asking them to look at each one and do a segregable analysis. [00:08:26] Speaker 05: What is the common question that the district court needs to, as a legal or factual matter, resolve still? [00:08:34] Speaker 05: I don't see one. [00:08:35] Speaker 01: Neither do I. They've conceded that the [00:08:39] Speaker 01: The policy was unfair. [00:08:41] Speaker 01: Now the question is remedy and how do we remedy the people who are still waiting? [00:08:44] Speaker 01: DHS proposes nothing for these people. [00:08:47] Speaker 01: I think that's wrong. [00:08:48] Speaker 01: I think that there should be a class should be certified so that they can be given notice. [00:08:53] Speaker 03: Why is certification necessary here? [00:08:56] Speaker 03: I mean, where DHS has already changed its policy, right? [00:09:00] Speaker 03: So, so members of the class can simply file a FOIA request and get the relief that they are seeking. [00:09:08] Speaker 01: And if they're aware of their rights, I think they're not. [00:09:11] Speaker 01: DHS doesn't claim that they are aware of their rights. [00:09:13] Speaker 03: Well, so presumably, presumably you could tell the members of the class that this policy has changed. [00:09:18] Speaker 03: I'm not sure why a class like why you need a redressable. [00:09:21] Speaker 03: I'm not sure how that harm is redressable by this part. [00:09:25] Speaker 01: Maybe if the case goes to district court, that could be a way to settle the case. [00:09:29] Speaker 01: DHS gives notice at some level. [00:09:31] Speaker 01: And then maybe that would go away. [00:09:32] Speaker 01: But I think notice should be given to the class one way or the other. [00:09:36] Speaker 01: And I think the best method is through the class action device. [00:09:39] Speaker 05: So Mr. Cleveland, you're referring to FOIA requesters who got a determination that was categorical and erroneous during the class period? [00:09:52] Speaker 05: Or are you referring to people who have not received it? [00:09:56] Speaker 01: Those people who said, please give me my assessment, and DHS gave them nothing. [00:10:01] Speaker 01: And DHS responded, processed the request and said, no. [00:10:06] Speaker 05: Those are the ones, because if they haven't processed the request yet, then the FOIA request is still pending and presumably will proceed under the new policy, no? [00:10:16] Speaker 01: Well, I doubt that. [00:10:18] Speaker 01: Well, I don't. [00:10:20] Speaker 01: The class ends in December 2017, that's five years ago. [00:10:23] Speaker 01: I hope that everything has been processed by now, but certainly many have not, because they did not even attempt to process them. [00:10:29] Speaker 05: So they processed them, they just processed them wrong in your view. [00:10:33] Speaker 01: They issued a form letter that said, go away, we give you nothing. [00:10:37] Speaker 05: Right. [00:10:37] Speaker 05: So they think that that FOIA matter is closed. [00:10:41] Speaker 05: And you're saying, well, no, it's within the class period. [00:10:44] Speaker 05: It was under an unlawful policy. [00:10:45] Speaker 05: And therefore, it would have been correct [00:10:50] Speaker 05: to certify a class and those people would be entitled to a redo without a new FOIA filing. [00:10:57] Speaker 05: That's your contention. [00:10:59] Speaker 01: Yes, I think that would be a good remedy. [00:11:02] Speaker 05: That's the remedy you in fact are seeking. [00:11:04] Speaker 01: Well, the class is certified and notice is given and then we figure out what is appropriate after that. [00:11:11] Speaker 04: Just to be clear, you have not appealed the district court's denial of 23B2 class certification. [00:11:18] Speaker 01: We did that, I reconceived that as well. [00:11:21] Speaker 04: And so you want to proceed on 23B3. [00:11:26] Speaker 04: In its 2018 order, Judge Walton said he would not certify the class under 23B3. [00:11:34] Speaker 04: And that was unappealed. [00:11:38] Speaker 04: So how can you appeal, how can you raise 23B3 now? [00:11:42] Speaker 01: Mr. Keisunga steps forward in 2018. [00:11:45] Speaker 01: He's one of the new plaintiff. [00:11:47] Speaker 01: He was part of the motion 57 plaintiffs. [00:11:50] Speaker 01: He was declared to be a plaintiff in October 2020. [00:11:51] Speaker 04: He was declared to be a plaintiff, but the district court had already said that he would not certify this under 23B3. [00:11:57] Speaker 01: Well, the court said that concerning the plaintiffs who were there. [00:12:01] Speaker 01: He had eight plaintiffs in front of him. [00:12:02] Speaker 01: Mr. Keisunga is a new guy. [00:12:04] Speaker 01: Did he file a new complaint? [00:12:07] Speaker 01: Because he filed an amendment complaint in 2018 and he became known as a, he became named as a plaintiff October 2020. [00:12:15] Speaker 01: He has forfeited nothing. [00:12:17] Speaker 01: He filed a 23B3 motion. [00:12:19] Speaker 01: He certainly should be the class action representative. [00:12:22] Speaker 01: He has forfeited nothing. [00:12:25] Speaker 05: What, Mr. Cleveland, what's your best case in support of your argument that plaintiffs who have individually received relief may nonetheless act as class representatives [00:12:37] Speaker 05: to obtain class certification and litigate class claims for individuals whose relief is distinct. [00:12:46] Speaker 01: JD versus Azar. [00:12:48] Speaker 01: JD was pregnant in custody. [00:12:51] Speaker 01: Later she becomes not pregnant and she's out of custody and the court says she can go to the clinic. [00:12:56] Speaker 05: But there the question is, it's the common legal question. [00:12:59] Speaker 05: That case in a sense is [00:13:01] Speaker 05: in a different posture because the government had not conceded that the policy that it was following with respect to all the detainees was unlawful, whereas here they did change the policy. [00:13:15] Speaker 01: That's true. [00:13:15] Speaker 01: So it makes the case easier, from my point of view. [00:13:18] Speaker 01: DHS is acquiescing and they're conceding, so it makes it easier. [00:13:22] Speaker 05: It makes it harder because the commonality that justifies certifying a class is, in Judge Walton's view, [00:13:32] Speaker 05: lacking here, and you haven't exactly explained why that's wrong. [00:13:37] Speaker 05: The common question that the court needs to resolve. [00:13:42] Speaker 01: The common question is that DHS treat the class unfairly by not even considering giving them any portion of their assessment. [00:13:49] Speaker 01: And that's the question. [00:13:50] Speaker 01: And we also we know the answer. [00:13:51] Speaker 01: They admit they didn't. [00:13:53] Speaker 01: The common question, we don't need it because it's conceded. [00:13:57] Speaker 01: I think the question is, what about this class of people that are waiting? [00:14:01] Speaker 01: And what relief shall be given to them? [00:14:03] Speaker 01: I think this is the perfect case for a class action certification. [00:14:07] Speaker 01: They shall be given notice. [00:14:09] Speaker 01: When people are unaware of their rights, class action steps in. [00:14:12] Speaker 01: Consider the Fair Credit Reporting Act, the Disabled Children Seeking Health Insurance, and the strip search of Nassau County. [00:14:19] Speaker 01: When a large group of people don't know what's going on, they need protection from the court so they can be given notice of their rights. [00:14:25] Speaker 01: I would suggest that's appropriate in this case. [00:14:29] Speaker 04: All right. [00:14:29] Speaker 04: Anyone? [00:14:29] Speaker 04: All right. [00:14:30] Speaker 04: Thank you very much, Mr. Krugman. [00:14:38] Speaker 00: Good morning, your honors. [00:14:39] Speaker 00: May it please the court, Bradley Silverman, for the control and security. [00:14:43] Speaker 00: The district court's denial of class certification warrants affirmance for at least three reasons. [00:14:49] Speaker 00: One, the only claim that is before this court, the Rule 23B3 claim, was raised on time several years. [00:14:58] Speaker 00: Two, the plaintiffs are not, the named plaintiffs, are not, in fact, members of the class that they are seeking to certify. [00:15:06] Speaker 00: And three, [00:15:07] Speaker 00: plaintiffs have failed to demonstrate compliance with Rule 23B3's superiority. [00:15:12] Speaker 05: I'm going to start with the first issue because in a way... Let me just ask you as a matter of background and context. [00:15:22] Speaker 05: Why is it that the department doesn't routinely give statements [00:15:28] Speaker 05: to asylum applicants, why don't they routinely disclose the reasonably segregable information without any FOIA request? [00:15:38] Speaker 05: I mean, I read your briefs and I appreciate that there's a lot of FOIA processing burden on DHS, but it seems that in other kinds of legal proceedings, [00:15:48] Speaker 05: the government routinely just provides a party opposing party its own statements. [00:15:53] Speaker 05: And, um, you know, if that happened, wouldn't substantially cut down the FOIA burden. [00:16:00] Speaker 05: It's very peculiar that this provision of information in an asylum proceeding doesn't doesn't happen in that proceeding. [00:16:09] Speaker 00: Your honor, I could only speculate. [00:16:11] Speaker 00: It could be a matter of administrative convenience. [00:16:13] Speaker 00: It could be a matter of this containing at least some conceivably deliberative material. [00:16:18] Speaker 00: But actually, I do not have an answer to that particular question. [00:16:22] Speaker 00: I would just be thinking. [00:16:25] Speaker 00: Mr. Cleveland, I think he was up here, acknowledged that the B2 claim is no longer for this board. [00:16:33] Speaker 00: He doesn't raise it on appeal. [00:16:35] Speaker 00: That is the only basis for class certification that the plaintiffs raised. [00:16:39] Speaker 05: The district court was not concerned about B3 being materially different from B2. [00:16:44] Speaker 05: So it seems odd that we would reverse on that ground, that somehow there's a lack of notice that B3 was going to be the avenue. [00:16:53] Speaker 05: I appreciate your argument on timeliness. [00:16:58] Speaker 05: I have a question about the mootness. [00:17:03] Speaker 05: Does the department take the position that the policy that it was following before failing to segregate the segregable portions where exemption five was asserted that that's contrary to FOIA? [00:17:15] Speaker 05: Is that the department's view? [00:17:17] Speaker 00: We take no position on that. [00:17:19] Speaker 00: We did change the policy. [00:17:21] Speaker 00: And it's not before the court right now. [00:17:22] Speaker 00: We do not take the position that it was unlawful. [00:17:25] Speaker 00: What did happen was there were a number of lawsuits seeking assessments [00:17:31] Speaker 05: that were not provided pursuant to this policy, DHS changed its policy in response to litigation, but we do not- But there wasn't a court holding, and was it the Bayala, Bayada case that's mentioned in the Eggleston declaration? [00:17:47] Speaker 05: There wasn't a holding in that case that the policy was unlawful. [00:17:54] Speaker 05: And so I guess what I'm interested in is whether the district court was correct [00:17:59] Speaker 05: in essentially failing to hold the department to its burden to show that its voluntary cessation actually mooted the policy or practice claim. [00:18:09] Speaker 05: I mean, how can we conclude that DHS is committed to the new policy? [00:18:16] Speaker 05: It's a heavy burden. [00:18:17] Speaker 05: The burden's on you. [00:18:19] Speaker 00: Well, under this court's decision in forum, [00:18:22] Speaker 00: declaration by an agency official with sufficient responsibility and, for lack of a word, credibility to make that attestation that the agency has backed away from its previous policy, it's implemented a new policy, will be taken in good faith. [00:18:42] Speaker 00: Here, the Egglestill Declaration, we believe, provides that assurance, and neither parties don't dispute it. [00:18:48] Speaker 05: Cleveland does not argue that the new policy... Yeah, but important, part of the reason I'm asking you these questions is that significant to our court in Porop was the counsel at argument confirmed that the policy was understood by the CIA in that case to be mandatory on the agency by operation of the FOIA statute. [00:19:09] Speaker 05: And I thought you just told me that that is not DHS position here. [00:19:14] Speaker 05: So it would seem to me that Porop actually cuts the other way for you. [00:19:18] Speaker 00: We do not take the position that the previous policy was unlawful under FOIA. [00:19:23] Speaker 00: What I can say is that I have spoken with the agency, and they are firmly committed to not reverting to the previous policy to implementing this policy. [00:19:33] Speaker 00: They are not going to back away from it. [00:19:34] Speaker 05: How do we know that, though? [00:19:35] Speaker 05: You haven't taken the position that the agency feels bound, which is something we relied on in PORP. [00:19:41] Speaker 05: So where is the evidence of DHS's commitment to the policy going forward? [00:19:45] Speaker 05: I see the Eggelson. [00:19:47] Speaker 05: but they refer to the guidance in the USCIS FOIA Processing Guide and we don't have the FOIA Processing Guide in the record. [00:19:55] Speaker 05: We don't have, this is not like the Alaska case where there was notice and comment rulemaking and in fact in Alaska we have a footnote saying we wouldn't necessarily hold voluntary cessation to sufficiently moot if it were the kind of policy that the agency could just change with the stroke of a pen and that seems like that's exactly the kind of policy [00:20:16] Speaker 05: we have here that the agency could just change it by the stroke of a pen. [00:20:23] Speaker 00: Honor, DHS is giving this board its word that it is not going to revert to the previous policy. [00:20:29] Speaker 00: Whether DHS could or could not is not important to DHS. [00:20:34] Speaker 04: In making that statement, do you purport to bind DHS for all time forward? [00:20:39] Speaker 00: all time forward. [00:20:41] Speaker 00: I do not know if I have the authority to bind them for all time forward. [00:20:43] Speaker 04: Do you have the ability, do you have the authority to bind them for three years forward? [00:20:48] Speaker 00: Truthfully, the duration of how long I could bind them did not come up when I spoke to them and I hesitate to speak beyond the scope. [00:20:54] Speaker 04: So you can't assure us that they wouldn't change, change back to the old policy in three years? [00:21:00] Speaker 00: Three years? [00:21:00] Speaker 00: No, I do not believe they will, but I truthfully cannot believe that. [00:21:03] Speaker 04: Could you keep going? [00:21:04] Speaker 04: Could you, you couldn't confirm two years? [00:21:06] Speaker 05: See, this is the difficulty for us. [00:21:09] Speaker 05: And I saw some puzzlement when I mentioned Alaska, which I know wasn't in the briefs. [00:21:13] Speaker 05: It's 17F4. [00:21:15] Speaker 05: 1224, 1229 at note five, we distinguish notice and comment rulemaking, which, for example, if this policy had been changed in notice and comment rulemaking, technically it would be changeable, but there's a lot of friction to doing that. [00:21:30] Speaker 05: Whereas we mentioned that actions that can be reversed at the stroke of a pen or otherwise face minimal hurdles to reinforcement can thwart mootness. [00:21:38] Speaker 05: And that's the situation that I'm concerned with. [00:21:41] Speaker 05: I don't see another case where there isn't [00:21:44] Speaker 05: confirmation in the record that the agency believes that the prior policy was unlawful. [00:21:50] Speaker 05: And, you know, there's no notice in common rulemaking. [00:21:53] Speaker 05: Like, when do we accept just the government saying, hey, you know, we changed. [00:22:00] Speaker 05: So that's the difficulty in terms of finding this policy challenge actually to be moved. [00:22:05] Speaker 00: I hear you, Your Honor. [00:22:06] Speaker 00: And there is nothing in the record that says that. [00:22:08] Speaker 00: I guess what I would say is that given that the parties agree that the policy is moved, [00:22:14] Speaker 00: I would submit that the appellants have not raised this issue on appeal. [00:22:18] Speaker 00: It is waived and it's not properly before this court. [00:22:22] Speaker 05: I mean, it's a tough question whether because it goes to subject matter jurisdiction, is it waived? [00:22:29] Speaker 05: I guess you could waive an assertion of jurisdiction in a way that you can't waive an agreement to jurisdiction. [00:22:38] Speaker 05: In other words, he can say, we don't want to assert jurisdiction the court might have. [00:22:42] Speaker 05: as opposed to saying waiving, you know, we're enjoying jurisdiction and you're waiving a challenge to it. [00:22:48] Speaker 05: So I appreciate that. [00:22:50] Speaker 00: I didn't quite mean that jurisdictions waive. [00:22:52] Speaker 00: What I meant is the claim the rule 23B2. [00:22:54] Speaker 05: You said that much more succinctly than I did. [00:22:58] Speaker 05: So what about what about Mr. Cleveland's contention? [00:23:03] Speaker 05: You know, we've had the district court has been burdened with numerous [00:23:08] Speaker 05: claims where individuals have had to file in order to get secondable material and they're continuing to have to file in some cases since the quiet change in policy. [00:23:20] Speaker 05: And that's another thing frankly that is disturbing here is that the government apparently changed the policy and didn't even mention it in its litigation. [00:23:26] Speaker 05: So the commitment [00:23:27] Speaker 05: to the change, you know, that's another question mark over the degree of the department's commitment to the change. [00:23:32] Speaker 05: So there are all these different cases, individual cases, and Mr. Cleveland says, look, you have a change in policy, the new policy would have entitled people during the class period to have a segregability analysis, right? [00:23:46] Speaker 05: And I understand that all the different formal challenges and difficulties with his position. [00:23:51] Speaker 05: But just as a matter of good agency practice, isn't it the case that those people were unlawfully denied within the limitations period their entitlement to a segregability analysis on their assessments to refer? [00:24:09] Speaker 00: It is the case that while the old policy was in effect, USCIS did not consider whether portions of their assessments were segregable. [00:24:17] Speaker 00: While we do not take the position that was unlawful, if this court were to believe that were unlawful, then that would have been unlawful. [00:24:24] Speaker 00: We don't dispute that no second ability analysis was performed under the prior policy as to those risks. [00:24:30] Speaker 00: You don't what? [00:24:31] Speaker 00: We don't dispute that no second ability analysis was performed. [00:24:34] Speaker 05: And so the difficulty is that with this population where it's [00:24:39] Speaker 05: a burden and difficult for them to file a FOIA request. [00:24:43] Speaker 05: The department's position is, go ahead and file a new one, because now we've changed our policy. [00:24:48] Speaker 05: And I take Mr. Cleveland's position to be that they shouldn't have to do that. [00:24:53] Speaker 05: They've already gotten a no. [00:24:55] Speaker 05: There's no way it's going to occur to them that this policy has changed, which was not even made public for the first two years after it was changed. [00:25:03] Speaker 05: They're not going to do that. [00:25:04] Speaker 05: So they're going to be deprived of an entitlement. [00:25:07] Speaker 05: What's your response to that? [00:25:10] Speaker 00: He thinks first, I don't think anyone disputes right now that the fact of the change in policy is public. [00:25:16] Speaker 00: It is nothing else. [00:25:17] Speaker 00: It is public through this litigation. [00:25:19] Speaker 00: This is not anything DHS is trying to secret. [00:25:22] Speaker 00: Beyond that, I question whether it's really [00:25:25] Speaker 00: completely accurate to say that this class of would-be plaintiffs is too uninformed to file a new FOIA request for two reasons. [00:25:35] Speaker 00: One, these are people who have already filed a FOIA request, which takes some degree of sophistication. [00:25:40] Speaker 05: And gotten a no answer and have every reason to believe that the book is closed on that. [00:25:46] Speaker 00: And there are organizations like Catholic Charities, which actually were what was a party in the district court that can help them file a new FOIA request. [00:25:54] Speaker 04: Is there anything on your website that announces this policy? [00:25:57] Speaker 04: On the assumption that maybe people who are in this country trying to obtain asylum are not following particularized cases and litigation on the filings they're in? [00:26:08] Speaker 04: No? [00:26:09] Speaker 00: I do not know if it is on the website, Your Honor. [00:26:11] Speaker 00: If Your Honor would like, then I can file a notice with the court informing it and talking with DHS about whether that's something we should put on the website. [00:26:19] Speaker 05: Yes, that would be good. [00:26:22] Speaker 05: And there's been no, well, I was just going to ask about settlement discussions, but obviously I shouldn't be asking about that. [00:26:28] Speaker 05: I would just note that in Larson versus the Navy, no, I'm sorry, not Larson, Wilson, which is a Sixth Circuit case, Wilson versus Gordon, the government and not a FOIA case offered not only to process name plaintiffs claims that had been denied under a challenge policy, but also claims of a hundred other claims [00:26:49] Speaker 05: individuals who had been denied under policy. [00:26:51] Speaker 05: It just, I mean, that was just a settlement proposal, but it was in recognition that the, that the policy, the erroneous policy that had been in place had affected more than just the putative named planets. [00:27:04] Speaker 05: And that was a, that was a resolution that recognizes something that I don't see the department recognizing here, the harm from its prior policy. [00:27:12] Speaker 00: Your honor, I hear what you're saying there. [00:27:14] Speaker 00: One, I guess, challenge that that sort of, [00:27:18] Speaker 00: action would present in this case is that if it were 100 requesters, that would be one thing. [00:27:27] Speaker 00: Here, we're talking about more or less 95% of all part 2 million FOIA requests that USCIS has received since 2009. [00:27:41] Speaker 05: So 95% of them are for assessments to refer and their asylum claimants? [00:27:46] Speaker 00: No, 95%, roughly 95% of lawyer requests that USCIS receives are for an individual's immigration records. [00:27:56] Speaker 00: Now that is not always specifically for an assessment. [00:27:59] Speaker 00: Oftentimes it is for a voluminous set of records such as someone's entire A file or for a substantial portion of someone's A file. [00:28:06] Speaker 00: But a set of records that could likely in many cases would include an assessment. [00:28:13] Speaker 05: What about asylum applicants? [00:28:16] Speaker 05: How big of a chunk is that? [00:28:18] Speaker 00: I cannot answer that question. [00:28:21] Speaker 05: And is that something you can research for? [00:28:23] Speaker 05: I know you mentioned in your brief the various, the primitive state of the electronic database in the agency. [00:28:33] Speaker 05: Pardon? [00:28:33] Speaker 00: I said primitive is a good word for it. [00:28:35] Speaker 05: And could you word search for asylum applicants or people seeking asylum? [00:28:41] Speaker 00: The issue is not that we can't word search it. [00:28:44] Speaker 00: We can. [00:28:44] Speaker 00: The issue is that it could be under inclusive. [00:28:47] Speaker 00: That's just given the way. [00:28:48] Speaker 05: Right. [00:28:48] Speaker 05: But under inclusive is better than nothing. [00:28:50] Speaker 00: It is better than nothing. [00:28:52] Speaker 05: And nothing is what these people are facing under your position. [00:28:56] Speaker 00: We could do a word search for asylum just that, you know, [00:29:01] Speaker 00: and Mr. Cleveland would need to understand that just given the way these records are inputted, these requests are inputted, it would necessarily be under inclusive, potentially very under inclusive. [00:29:11] Speaker 04: Can I ask you something in your, I'm just trying to understand something about the argument to the district court, that the district court accepted. [00:29:18] Speaker 04: And that is that you have, when a FOIA request comes in, you have to go through, and let's say it's just for the assessments, they'll take out the A for the ones. [00:29:31] Speaker 04: Even then, you can't sort of quickly lop off the factual section that they can receive as opposed to the analytical section that you don't disclose. [00:29:41] Speaker 04: I was trying to figure out, and I know you said, well, sometimes it's three paragraphs, sometimes it's six paragraphs. [00:29:46] Speaker 04: That doesn't seem complicated. [00:29:50] Speaker 04: Is that it? [00:29:51] Speaker 04: You're just trying to figure out where the factual assessment stops and the analytical section begins in these assessments? [00:29:58] Speaker 04: Or is it that you have to, even through factual assessments, have to go line by line to apply other exemptions? [00:30:06] Speaker 00: Here, my understanding is that the desegregability analysis was determined on a paragraph basis rather than a line by line basis. [00:30:15] Speaker 00: So essentially, you're right that it's a matter of [00:30:18] Speaker 00: distinguishing what is purely factual from what is analytical, the problem, as I'm sure, you know, will not surprise us for it, that can be a tricky line and not one that is susceptible to being drawn on a broad basis. [00:30:33] Speaker 00: It really requires looking at each individual assessment. [00:30:36] Speaker 04: Just to see what, but the facts always come at the beginning. [00:30:38] Speaker 04: Okay. [00:30:39] Speaker 04: So the fact, so you're just trying to find that transition point when they stopped, talked about the facts and start analyzing. [00:30:45] Speaker 04: That's all you have to do in each case. [00:30:46] Speaker 00: Essentially, I say that with just the caveat that there could be assessments that pose a little more of a difficult analytical conundrum. [00:30:55] Speaker 00: But in the mind run, that's correct. [00:30:56] Speaker 04: Because what assessment would cause more of a conundrum and why? [00:31:00] Speaker 00: I can't think of one on top of my head. [00:31:02] Speaker 00: I just want to see the possibility. [00:31:04] Speaker 04: You're not aware of any of that. [00:31:06] Speaker 04: When you say it has to be done individually, all they have to do is figure out when the fact section stops and the analysis section begins. [00:31:14] Speaker 04: You're not doing line by line. [00:31:16] Speaker 00: Yes. [00:31:16] Speaker 00: And all I said before, the caveat was just to contemplate the possibility. [00:31:20] Speaker 04: Well, you tell me they aren't looking line by line. [00:31:22] Speaker 04: So I don't know what else. [00:31:23] Speaker 04: I don't know what a for example applies on the paragraph basis. [00:31:26] Speaker 00: Generally speaking, Your Honor, it should only be a matter of determining which paragraphs are factual and which start to be analytic. [00:31:32] Speaker 04: And you're going to have to do that every time you get a FOIA request going forward for this, for the assessment. [00:31:39] Speaker 04: Correct. [00:31:40] Speaker 04: And your proposal to deal in with individuals who were improperly denied before is that they all file FOIA requests. [00:31:49] Speaker 00: That is correct. [00:31:49] Speaker 04: And then you'll have to do this one by one analysis. [00:31:52] Speaker 04: Correct. [00:31:53] Speaker 04: So what's if they're going to do if let's assume all of them get notice and learn about this and all of them file individual floor requests. [00:32:02] Speaker 04: Is that burden any different than the burden you would have under the class action. [00:32:06] Speaker 00: Here, your honor. [00:32:07] Speaker 00: If every I don't want to hear. [00:32:08] Speaker 00: I just want to know practically If every class member were to file a new FOIA request, then [00:32:14] Speaker 00: Assuming that we can put aside the questions of statute of limitations or plaintiffs in this case, let's say there are no statute of limitations issue. [00:32:21] Speaker 00: If every single class member files a new FOIA request, then the burden would be... How is there any statute of limitations on a new FOIA request? [00:32:28] Speaker 00: Nevermind. [00:32:30] Speaker 04: Okay. [00:32:32] Speaker 04: Your answer to the district court was, we're fine if they all file a FOIA request. [00:32:37] Speaker 04: We just don't want it done as a class. [00:32:39] Speaker 04: Correct. [00:32:40] Speaker 04: And I'm trying to figure out why the burden, and your answer was burden, but the burden is exactly the same, whether they do it individually or they could all do it next month. [00:32:47] Speaker 00: The reason this makes a difference to us is because some number, many most likely FOIA requesters probably would not file a new FOIA request because they no longer have it. [00:32:58] Speaker 04: They'll opt out of the class action. [00:33:00] Speaker 04: They're not going to have any interest in it. [00:33:02] Speaker 00: If every class member were to file a new FOIA request, then the burden would be, [00:33:08] Speaker 04: And do you think there's no way to just contact them? [00:33:13] Speaker 04: So the burden explanation that you gave to the district court is really no burden at all, because it's what you've already welcomed when you tell the district court, we invite all of these potential class members to go ahead and refile FOIA requests. [00:33:27] Speaker 00: I guess it really depends on the opt-in, opt-out mechanics. [00:33:31] Speaker 04: So you're just hoping people won't know, and that's how you'll have less burden? [00:33:35] Speaker 00: Not that we're hoping people don't know. [00:33:36] Speaker 04: You're hoping people won't file? [00:33:38] Speaker 00: If the notice were to go out and if, let's say, some number of plaintiffs were to opt in, and then the same number of... Well, it's opt out under B3, but... Opt out, yes. [00:33:54] Speaker 00: If they were to opt out, then let's say there are no opt-outs, but there are only some opt-outs, then that would require USAIS to [00:34:04] Speaker 00: do this reprocessing for every requester who has not opted out. [00:34:08] Speaker 00: That could include a significant portion of people who their immigration proceedings are over. [00:34:15] Speaker 00: In some cases. [00:34:16] Speaker 04: That doesn't stop them from filing a FOIA request. [00:34:18] Speaker 04: Again, you told the district court the way for them to do this is to file a FOIA request. [00:34:21] Speaker 04: When they file a FOIA request, you don't say, well, do you really want this? [00:34:25] Speaker 04: Do you still need it? [00:34:26] Speaker 04: You just have to respond to it. [00:34:28] Speaker 04: And so I'm just, again, I'm continuing to have trouble understanding why it's any more of a burden to proceed as a class than to proceed on the invitation that you provided, that the agency is providing these file for requests if you want it. [00:34:45] Speaker 04: It's just you don't want them, the problem with the class action is they'll get notice. [00:34:49] Speaker 04: And so you think you'll get more requests. [00:34:52] Speaker 04: Well, how would you put it? [00:34:54] Speaker 00: The way I would put it is that, [00:34:57] Speaker 00: In an opt-out class, you're going to have a large number of people who would be part of the class who would not, even if given notice, would not necessarily file a new FOIA request because they don't have any ongoing interest in their assessments. [00:35:13] Speaker 00: And that doesn't just go to the burden. [00:35:14] Speaker 04: Why don't you let them decide that rather than you assuming that? [00:35:19] Speaker 04: Why don't you? [00:35:19] Speaker 04: Because they get to make that very decision whether they really still want this in the opt-out decision. [00:35:26] Speaker 04: Your Honor, this goes to the superiority requirement, whether a class action would be a superior mode of... And your argument to the district court was all one of burden, and yet the burdens are exactly the same, unless government's interest is the people don't learn about it, and so they won't file a floor request. [00:35:47] Speaker 00: Well, one thing I want to point out is... Right? [00:35:49] Speaker 04: The burden would be the same. [00:35:50] Speaker 00: No, Your Honor, we're not hoping that no one finds out. [00:35:55] Speaker 00: about the new policy. [00:35:56] Speaker 04: If everybody in the class found out, then they just do notice on their own right now. [00:36:01] Speaker 04: Nothing in the law requires it to go through a court. [00:36:03] Speaker 04: They do notice. [00:36:04] Speaker 04: Or they do a FOIA request to you asking for the names of everyone that was denied and assuming you comply. [00:36:12] Speaker 04: There's no difference, right? [00:36:17] Speaker 00: There's no difference to the burden on USCIS if every class member were to file a new FOIA request. [00:36:25] Speaker 05: So circling back on two points, assuming that the 23B3 certification motion was timely, your best response legally to why that doesn't survive is what? [00:36:45] Speaker 00: If you assume it's timely, then our next argument would be that the plaintiffs were not members of the class they sought to certify at [00:36:53] Speaker 00: time that the district court ruled on class certification, which is the moment in time that matters. [00:36:58] Speaker 05: And it matters your best case for that mattering. [00:37:02] Speaker 00: It is Falcon Rodriguez and Hartman in all three of these. [00:37:06] Speaker 05: So in Falcone, it was someone who's with a representative problem because the claim never was [00:37:13] Speaker 05: And we have several cases where the claim was really on all fours with the class claim and it was allowed to go forward. [00:37:21] Speaker 05: I'm thinking about a case that Mr. Cleveland mentioned. [00:37:26] Speaker 05: I'm thinking about the, I think it was the, I'm mixing up my mootness cases and my class cases. [00:37:40] Speaker 05: But there's several cases where we said, [00:37:43] Speaker 05: Somebody who, because of the error of the district court and not certifying the class, it would have been certified had it been looked at promptly. [00:37:51] Speaker 05: And it doesn't, we can relate it back. [00:37:54] Speaker 05: The IDEA case that's cited in the briefs. [00:37:58] Speaker 00: The standard here, the rule as I understand it, is that if the district court erroneously denies class certification, and then after that a named plaintiff ceases to be a class member, then you're correct. [00:38:12] Speaker 00: then that can relate back to before the denial. [00:38:15] Speaker 00: But that involves a situation where the name plaintiff ceases to be a class member after the district court grants or denies rules on class certification. [00:38:26] Speaker 00: Whereas here you have a situation where the name plaintiff ceased to be class members before the district court ever ruled on class certification. [00:38:34] Speaker 00: And so it's similar, you know, we were distinguishing between the issues of whether you're a member of the class under rule 23 at the [00:38:41] Speaker 00: that you seek to represent and mootness, but as in the mootness context, the key point in time is when the district court rules on classification. [00:38:50] Speaker 05: Didn't the district court rule on representativeness back in the early written order before? [00:38:57] Speaker 05: And then there were other named plaintiffs whose claims were responded to by DHS after that. [00:39:05] Speaker 05: So there are some named plaintiffs who are in that position with respect to the representativeness determination. [00:39:10] Speaker 00: Your honor, actually, I'm glad you brought that up because Mr. I believe it's the other new supposedly called plaintiffs that Mr. Cleveland referred to. [00:39:21] Speaker 00: They were not plaintiffs. [00:39:22] Speaker 00: They were never actually added to the case. [00:39:26] Speaker 05: I thought the district court granted that. [00:39:27] Speaker 05: He said he was granting the motion to amend. [00:39:30] Speaker 00: Not quite. [00:39:31] Speaker 00: And I'm glad you asked about that because what the district court did was the plaintiffs had moved relief to add 57 new plaintiffs and amend their complaint. [00:39:40] Speaker 00: The district court granted and denied that motion in part. [00:39:44] Speaker 00: It granted leave to file a new complaint adding those plaintiffs whom counsel had a good faith basis to believe could maintain a claim. [00:39:54] Speaker 00: It denied the motion in all other respects. [00:39:57] Speaker 00: And rather than sort out for itself which of those plaintiffs could maintain a claim or not, it invited plaintiffs to file an amended motion for leave to file an amended complaint [00:40:08] Speaker 00: and then ordered the government to respond to that. [00:40:11] Speaker 00: But the district court never actually granted leave to file that amended complaint. [00:40:16] Speaker 00: So Mr. Kayadashanga and the other supposed new plaintiffs actually never were plaintiffs in the district court and are not appellants in these proceedings now. [00:40:28] Speaker 04: The plaintiffs have complained pretty vociferously that the government is picking off plaintiffs as fast as they can name them. [00:40:36] Speaker 04: And there are doctrines by which the defendants picking off of either named or would be proposed named plaintiffs even before class certification does not create moot as a problem. [00:40:54] Speaker 04: Let's assume not moot due to voluntary cessation so the merits aren't moot because it's just voluntary cessation. [00:41:02] Speaker 04: And so that question is live. [00:41:05] Speaker 04: And the plaintiffs here keep getting picked off. [00:41:08] Speaker 04: And there's plenty of case law that says that cannot count for disqualifying named plaintiffs from pursuing a class action. [00:41:17] Speaker 04: And you did not address that issue, but I didn't see it at all in your brief. [00:41:22] Speaker 04: So have you just waived that argument? [00:41:25] Speaker 04: And so you're not objecting to their claim that they qualify under the pickoff exception theory? [00:41:31] Speaker 00: No, Your Honor. [00:41:31] Speaker 00: We didn't address it because that's a mootness argument. [00:41:34] Speaker 00: And our argument here is not a mootness argument. [00:41:36] Speaker 00: We're not arguing that in general. [00:41:39] Speaker 04: Your argument that you have to have live claims, you have to have plaintiffs that are members of the class and pick off is an exception to that they raised you didn't address. [00:41:47] Speaker 00: A couple points, Your Honor. [00:41:48] Speaker 00: First, the pick-off doctrine is an Article 3, it's a mutinous doctrine, and we are not, our argument is that as a matter of Rule 23, Rule 23 requires, not Article 3 of the Constitution, Rule 23 separately requires that a name plaintiff be a member of the class [00:42:05] Speaker 00: I am unaware of any cases that have recognized the picking off doctrine in the Rule 23 context as opposed to the Boonis context, but even putting that aside, let's just assume for the sake of argument. [00:42:17] Speaker 04: If there are cases that have allowed classes to proceed in the face of picking off under Rule 23, you've waived any argument against that. [00:42:26] Speaker 00: Well, I think if you look at the sequence of events that occurred in the district court, you'll see... I'm looking at your brief and I don't see an argument, so I'm just asking you whether you waive that argument. [00:42:36] Speaker 04: In this court, not what happened in District Court. [00:42:38] Speaker 00: We waived any argument as to move this. [00:42:42] Speaker 04: You waived any argument as to the pick-off exception, the flag in their opening brief, and you didn't respond to it. [00:42:49] Speaker 00: The position is that we were not required to respond to anything. [00:42:51] Speaker 04: Okay, not required to respond to anything. [00:42:54] Speaker 04: Here's what you respond to, that's why. [00:42:57] Speaker 00: Let me try to phrase this maybe in a way that's more responsive to your question. [00:43:01] Speaker 00: We waive any argument concerning the pick-off doctrine in the mootness context. [00:43:07] Speaker 00: We do not waive it in the Rule 23 context because we don't believe the plaintiffs raised such an argument in the Rule 23. [00:43:12] Speaker 05: Except aren't they overlapping? [00:43:14] Speaker 05: Isn't the non-representativeness of the named plaintiffs' claims limited to the fact that they have received responses and the [00:43:26] Speaker 05: absent class members haven't. [00:43:28] Speaker 05: And so the non-representativeness that the district court pointed to was mootness. [00:43:34] Speaker 05: There's nothing else. [00:43:35] Speaker 05: There's nothing Falcone like about their non-representativeness. [00:43:38] Speaker 05: It's just that they got picked off or they got relief. [00:43:42] Speaker 05: And so it really is a mootness point and a rule 23 point. [00:43:47] Speaker 00: It's similar to a mootness point. [00:43:49] Speaker 00: We're not asserting a mootness point. [00:43:50] Speaker 00: There is a similarity in this context between the requirement of Rule 23 that you be a member of the class that you are seeking to represent and the mootness requirement. [00:44:00] Speaker 05: In fact, that's the only non-representativeness is that their claims are ostensibly moot. [00:44:04] Speaker 00: Well, the way that plaintiffs themselves chose to define the class [00:44:10] Speaker 00: is it is a class of persons who requested their assessments but received no portion of it. [00:44:16] Speaker 00: And that framing was plaintiff's claim. [00:44:18] Speaker 05: Well, right, okay. [00:44:20] Speaker 05: Why isn't DL versus District of Columbia authority for this idea that a claim of a named plaintiff that becomes MOOC can nonetheless relate back to the time of the complaint filing and therefore retain the representativeness that Rule 23 requires? [00:44:39] Speaker 00: up to two points, Your Honor. [00:44:40] Speaker 00: First, and I know that you don't care, but just preserving this. [00:44:43] Speaker 00: And our position is not a mootness, it's rule 23. [00:44:47] Speaker 00: And so we'd argue that DL is an absent for that reason. [00:44:49] Speaker 05: Don't say I don't care. [00:44:50] Speaker 05: I'm just playing devil's advocate and I'm not necessarily decided. [00:44:55] Speaker 00: But moving past that, we would go back to the idea that the key moment in time is the moment when the district court grants or denies when it rules on class certification. [00:45:08] Speaker 00: I can't remember the precise facts of D.L. [00:45:11] Speaker 00: on my head. [00:45:12] Speaker 00: But here, the plaintiff sees to be members of the class before the district court ruled on certification. [00:45:20] Speaker 00: And we believe that is the moment that really matters. [00:45:24] Speaker 03: Mr. Silverman, if I could just ask you, why doesn't the government raise a more robust mootness claim here? [00:45:31] Speaker 03: I mean, what type of redressability can this court offer these plaintiffs after DHS has changed its policy? [00:45:38] Speaker 00: So our position is that the named plaintiffs claims, not any new plaintiffs subsequently added, but the original named plaintiffs, their claims are moot, but that doesn't preclude them necessarily from serving as class representatives. [00:45:55] Speaker 00: So that yes, their claims are moot, but our understanding is that if a named plaintiff's claims become moot, [00:46:04] Speaker 00: after the district court rules on class certification, they may nonetheless serve as class representatives. [00:46:10] Speaker 00: And so that's why we haven't raised this mootness argument, because while their claims are moot, that alone does not preclude them from serving as class representatives, but does preclude them from serving as class representatives, is that they're no longer members of the class they seek to certify, and they weren't even before the district court ruled on class certification. [00:46:29] Speaker 04: I just want to clear, I've kept you way over your time, just one procedural factual, [00:46:33] Speaker 04: The question I just want to confirm. [00:46:35] Speaker 04: I know they file, after the second amended complaint, which the district court ruled on, they filed a lot of amended complaints adding new people, but the district court never accepted any of those other complaints. [00:46:47] Speaker 04: The second amended complaint is the last one, correct? [00:46:49] Speaker 00: That is correct, Your Honor. [00:46:51] Speaker 04: Any further questions? [00:46:52] Speaker 04: Thank you very much for your patience with us. [00:46:58] Speaker 04: Okay, Mr. Cleveland, we'll give you two minutes to respond. [00:47:04] Speaker 01: I think Mr. Taiyashunga is the important person in this case. [00:47:07] Speaker 01: He enters the picture in 2018, Appendix 1441. [00:47:12] Speaker 01: That's the motion to add plaintiffs. [00:47:15] Speaker 01: October 2020, the court made a ruling, A, 1746. [00:47:19] Speaker 01: And he promptly filed a B3 motion, Appendix 1764. [00:47:24] Speaker 01: He's very much in the picture. [00:47:26] Speaker 01: He forfeited nothing. [00:47:28] Speaker 01: In DL versus DC, it was a case of three to five-year-old kids who were unfairly treated. [00:47:33] Speaker 01: But at the time, 10 years later, the case is still at the D.C. [00:47:37] Speaker 01: Circuit. [00:47:38] Speaker 01: They said, well, yeah, the case has been moved for a decade. [00:47:40] Speaker 01: So what? [00:47:41] Speaker 01: There's still a large group of kids that have been unfairly treated. [00:47:45] Speaker 01: In regard to assessments, I believe there are 15 assessments in the record. [00:47:49] Speaker 01: It's easy as pie to read it and start off with the facts are all the same. [00:47:53] Speaker 01: I was got hit on the head because blah, blah, blah. [00:47:56] Speaker 01: And then the asylum officer says, no, you lose for some reason. [00:47:59] Speaker 01: Very easy to segregate. [00:48:02] Speaker 01: The Abtou case in 2018, the judge said his portions are easily segregated. [00:48:07] Speaker 01: I would suggest that this report should be reversed. [00:48:11] Speaker 04: Any questions? [00:48:12] Speaker 04: Thank you very much. [00:48:14] Speaker 04: The case is submitted.