[00:00:00] Speaker 04:
822-5071.

[00:00:03] Speaker 04:
I am the balance versus United States Customs and Border Protection, Ed Al.

[00:00:08] Speaker 04:
Mr. Dugner for the balance, Mr. Ward for the avalanche.

[00:00:15] Speaker 04:
Good morning, Mr. Dugner.

[00:00:16] Speaker 03:
Good morning.

[00:00:22] Speaker 03:
Good morning, Thomas.

[00:00:23] Speaker 03:
This case is about the appointments clause, one of the significant structural safeguards of our constitutional scheme.

[00:00:29] Speaker 03:
Appellant I.M.

[00:00:30] Speaker 03:
brought a claim under 8 U.S.C.

[00:00:32] Speaker 03:
1252E2B alleging that the Appointments Clause restricts the issuance of expedited removal orders to appointed officers and that because no appointed officer ordered him removed, he was not removed.

[00:00:44] Speaker 03:
The District Court dismissed the case because it believes Section 1252E2 has an implicit custodial requirement.

[00:00:51] Speaker 03:
That was incorrect as well explained today.

[00:00:53] Speaker 03:
The court then made a further error by failing to consider IAM's alternative argument that if there were a custodial requirement in 1252E2, it would be satisfied by the government's obstruction of his ability to file while in custody.

[00:01:08] Speaker 00:
Mr. Governor, why isn't the first argument ruled out by the limited jurisdiction we have with respect to review of these decisions?

[00:01:16] Speaker 03:
The first argument you mean in terms of the Appointments Clause piece?

[00:01:19] Speaker 03:
Yes.

[00:01:20] Speaker 03:
So E2B gives jurisdiction over whether a petitioner was ordered removed.

[00:01:26] Speaker 03:
As this court said in Noel Canning and a punitive order issued in violation of the Appointments Clause is void ab initio.

[00:01:34] Speaker 03:
It's a nullity that never had any legal effect.

[00:01:36] Speaker 00:
But our jurisdiction is specifically limited to certain claims.

[00:01:42] Speaker 00:
It's not one of them.

[00:01:43] Speaker 03:
But yes, Your Honor, E2B specifically gives jurisdiction over whether the petitioner was ordered removed.

[00:01:48] Speaker 03:
Because no appointed officer ever ordered, I am removed.

[00:01:52] Speaker 03:
He was not ordered to move.

[00:01:53] Speaker 00:
And it was not by an appropriate officer.

[00:01:58] Speaker 00:
Excuse me.

[00:01:58] Speaker 00:
He was literally ordered to be moved, but not by an authorized officer.

[00:02:03] Speaker 00:
I didn't know, Your Honor.

[00:02:04] Speaker 03:
The government presents the question as whether a piece of paper was handed out by somebody with the position of immigration officer.

[00:02:10] Speaker 03:
And that's simply not the operative question.

[00:02:13] Speaker 03:
The operative question is whether the United States or the person moved.

[00:02:17] Speaker 03:
The United States can only act in this capacity if I ask Merritt's claim is correct through an appointed officer.

[00:02:24] Speaker 03:
We would point to the Dugdale case, as we discussed, as a good example of how this works.

[00:02:30] Speaker 03:
There's no question the government handed the petitioner in that case a piece of paper, and that piece of paper reported to remove him.

[00:02:38] Speaker 03:
However,

[00:02:39] Speaker 03:
the piece of paper had not been issued by a supervisor, as required by regulation.

[00:02:46] Speaker 03:
The court said that arguably goes to whether or not the petitioner was in fact ordered removed, and therefore we have jurisdiction to consider it.

[00:02:54] Speaker 03:
It is certainly a narrow head of jurisdiction, but it goes to whether or not the United States ordered the person removed.

[00:03:00] Speaker 04:
What about E5, the scope of inquiry, right?

[00:03:03] Speaker 04:
Which says that in determining whether an alien has been ordered removed under 1255B1,

[00:03:09] Speaker 04:
court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner.

[00:03:16] Speaker 03:
That's correct, Your Honor.

[00:03:17] Speaker 03:
We would argue, as we explained, that an order was not in fact issued.

[00:03:22] Speaker 03:
The court in Ryder just the year before iRyro was enacted.

[00:03:27] Speaker 03:
explained that a punitive order issued in violation of the Appointments Clause is not valid de facto.

[00:03:33] Speaker 03:
De facto, there is no order that can have effect.

[00:03:38] Speaker 03:
And so, you know, we believe that that's what, in fact, issued Judge Cooper in explaining the difference between his Dugdale and TAM decisions, one of which he found order removed to

[00:03:48] Speaker 03:
be properly invoked and one which found it wasn't, explained that as petitioners must raise a claim that their removal orders were, as a matter of law, not issued.

[00:03:56] Speaker 03:
That's exactly what IM is arguing here.

[00:04:01] Speaker 03:
To the government's argument that this actually should have been brought under 1252-3, we would disagree.

[00:04:08] Speaker 03:
First off, IM is not challenging the constitutionality of the statute or any regulation or written guidance or written policy directive implementing it.

[00:04:18] Speaker 03:
he's challenging whether he himself was ordered removed.

[00:04:23] Speaker 03:
And there's nothing in E3 that takes away from the jurisdictional grant in E2.

[00:04:27] Speaker 03:
That's clear because there is naturally some overlap between some of those subjects.

[00:04:34] Speaker 03:
For example, the DHS has issued regulations about how to determine whether somebody who claims that they are not an alien or claims they have received

[00:04:45] Speaker 03:
asylee or refugee status is to be adjudicated.

[00:04:49] Speaker 03:
Those could have been challenged under 1252E3, but the fact that they could have been challenged under 1252E3 doesn't take away the grants of jurisdiction in 1252E2A and E2C.

[00:05:03] Speaker 03:
Thus, the government's argument that somehow there's an unstated limit on 1252E2B is simply incorrect.

[00:05:12] Speaker 04:
And of course... Mr. Dugner, didn't IM have filed his habeas petition while he was in custody?

[00:05:20] Speaker 04:
I mean, the arguments in the blue brief focus a lot on the fact that the removal order wasn't given to him until he was essentially out of custody.

[00:05:28] Speaker 04:
on his way back to his home country.

[00:05:32] Speaker 04:
But why was the removal order necessary in order to seek habeas?

[00:05:36] Speaker 04:
I don't understand that.

[00:05:38] Speaker 04:
I mean, he was in fact in custody.

[00:05:40] Speaker 04:
and so could have presumably filed a habeas petition while in custody.

[00:05:45] Speaker 04:
I'm not sure what the removal order of that affects, you know, at least, you know, his entitlement or jurisdiction or habeas.

[00:05:53] Speaker 03:
And I wasn't challenging his custody.

[00:05:55] Speaker 03:
He's not arguing that an appointed officer is necessary to detain somebody.

[00:06:00] Speaker 03:
or anything of the sort, nothing short of issuing the removal order itself.

[00:06:06] Speaker 03:
His argument is that no appointed officer ordered him removed.

[00:06:10] Speaker 03:
He couldn't know if that was going to be the case until seeing who reported to order him removed.

[00:06:16] Speaker 03:
Isn't it always the case?

[00:06:19] Speaker 03:
I don't know if it's always the case or not.

[00:06:22] Speaker 03:
In field offices around the country, there are some people who are appointed, there are some people who are not.

[00:06:27] Speaker 03:
Um, you know, this, we're not purporting to say this is something that is unique to I am by any stretch, but I don't know that this indicates for everybody.

[00:06:35] Speaker 00:
What about the practice around the country, even in this office, subject office with respect to when the order is handed to the deportee?

[00:06:45] Speaker 03:
Yeah, we know that to be a practice, or we've been told, of course, that to be a practice in the Chicago field office operating out of O'Hare.

[00:06:51] Speaker 03:
We don't know whether it's the case in other offices.

[00:06:52] Speaker 03:
But certainly, that goes to this extraordinary circumstances question and whether or not it was in any way possible to file a claim before IM was released from custody.

[00:07:07] Speaker 03:
And this also overlaps with the question of whether there's a custodial requirement.

[00:07:10] Speaker 03:
How is it an extraordinary circumstance that happens to everybody in O'Hare?

[00:07:15] Speaker 03:
It's a fair question, an extraordinary circumstance is an unfortunate name for the doctrine of constructive science.

[00:07:22] Speaker 03:
Might be an unfortunate doctrine.

[00:07:24] Speaker 03:
Whether it's an unfortunate doctrine or not is a separate question.

[00:07:27] Speaker 03:
Of course, the government hasn't challenged the doctrine here.

[00:07:29] Speaker 03:
It hasn't denied that that doctrine is correctly stated by other courts, although, of course, this court hasn't reached the question.

[00:07:34] Speaker 03:
But the government hasn't disputed that if the government obstructed him from filing, then that could satisfy the doctrine.

[00:07:42] Speaker 03:
The reason that I say the extraordinary circumstances name is a little unfortunate is because, of course, the government can't do something in every case with the intention of manipulating and forwarding jurisdiction

[00:07:53] Speaker 03:
and get away with it just because it does it so many times.

[00:07:56] Speaker 03:
If the conduct, if wanted to hear, and I'm sorry, it's extreme circumstances, not extraordinary circumstances.

[00:08:01] Speaker 03:
If the conduct here was extreme, it's extreme with reference to IM's ability to file rather than how frequently the government does it.

[00:08:11] Speaker 03:
But I think this overlaps significantly with the question of whether there's a custodial requirement to begin with.

[00:08:18] Speaker 03:
Because Congress did intend that people would be removed immediately upon issuance of a expedited removal order.

[00:08:27] Speaker 03:
It intended for everybody who doesn't assert a fear of persecution, for them to be out the door right away, turned around in the next plane, or if they're in a car or on foot,

[00:08:37] Speaker 03:
turned right around the border.

[00:08:39] Speaker 03:
And so Congress intended for there not to be custody.

[00:08:42] Speaker 03:
And yet we also know Congress intended for there to be jurisdiction over claims in E2.

[00:08:47] Speaker 03:
And so it doesn't seem like it could have been Congress's intent to have a custodial requirement here.

[00:08:54] Speaker 03:
That also tracks with the text of the statute, unlike every other radius statute we're aware of.

[00:09:00] Speaker 03:
There is no reference to custody whatsoever.

[00:09:03] Speaker 03:
Even more pointedly, there is no ability to seek or obtain a writ of habeas corpus.

[00:09:09] Speaker 03:
Congress... Judge Rao?

[00:09:11] Speaker 04:
But he too seems to presuppose that there is some habeas corpus proceeding.

[00:09:18] Speaker 04:
already.

[00:09:18] Speaker 04:
I mean, it doesn't read naturally like a separate grant of habeas jurisdiction.

[00:09:23] Speaker 04:
It seems to be referring to a habeas corpus proceeding that would be under, say, 2241.

[00:09:33] Speaker 03:
I don't believe that's correct.

[00:09:35] Speaker 03:
And, you know, for a couple of reasons.

[00:09:37] Speaker 04:
Why don't you read it as an independent grant of habeas?

[00:09:40] Speaker 04:
I mean, it says

[00:09:41] Speaker 04:
You know, that judicial review of any determination made under section 1225B1 of this title is available in habeas corpus proceedings and then has to be limited to the three grants.

[00:09:54] Speaker 03:
Yes, and so I would give a few different textual reasons why that doesn't refer to the general federal habeas statute in Chapter 153.

[00:10:03] Speaker 03:
The first is contrasting what Your Honor just read in 1252E2 with 1252A1, which is the overall provision giving authority to consider petitions for review.

[00:10:15] Speaker 03:
1252A1 specifically says, traditional review of a final order of removal

[00:10:21] Speaker 03:
is governed only by Chapter 158 of Title 28, except as provided below.

[00:10:27] Speaker 03:
That's how Congress cross-references other statutes when it means to incorporate the, especially jurisdictional, but when it means to incorporate the provisions of another statute.

[00:10:36] Speaker 03:
Congress did no such thing in E2, and that difference has to be significant.

[00:10:42] Speaker 03:
We, of course, take, you know, your point, Judge Rao, and the government's point that Congress meant something when it said habeas purpose proceedings.

[00:10:49] Speaker 03:
But what it meant was proceedings, the form of the proceedings, habeas corpus proceedings, as is well explained in the O'Brien case we cite in our reply brief, follow a completely different sequence and procedural structure than ordinary civil actions.

[00:11:04] Speaker 03:
Just to give a couple examples,

[00:11:07] Speaker 03:
rule 12 generally doesn't apply by and large in habeas proceeds.

[00:11:11] Speaker 03:
The government doesn't need to respond to a petition at all unless the district court reviews it first, declines to dismiss it, which is instructed to do it, finds no basis for relief.

[00:11:22] Speaker 03:
and only then orders the government to respond.

[00:11:25] Speaker 03:
Similarly, discovery.

[00:11:27] Speaker 03:
In an ordinary civil action, of course, parties move for discovery if there's no stay or not move, but serve discovery requests on the other party, and they have to respond to them unless they move for protective order.

[00:11:38] Speaker 03:
In habeas corpus proceedings, no discovery can be served unless submitted to the court ahead of time and explicitly authorized

[00:11:46] Speaker 03:
for each specific request that's going to be served.

[00:11:50] Speaker 03:
So when Congress uses the phrase habeas corpus proceedings, without authorizing the grant of habeas corpus, without referencing the general federal habeas statute, and in a context that suggests it knew that some of the challenges it was authorizing were going to have to come after an order, after the person was removed,

[00:12:10] Speaker 03:
I think it makes the most sense to read it as not having that kind of custodial requirement.

[00:12:15] Speaker 04:
And to the extent... Do you think E2 is a separate grant of jurisdiction?

[00:12:20] Speaker 03:
I do read it that way, Your Honor, yes.

[00:12:22] Speaker 03:
That is the only provision establishing how final orders of expedited removal can be reviewed.

[00:12:30] Speaker 03:
And so, yes, I do read that as a grant of jurisdiction, in part because if you look at it in the context of

[00:12:41] Speaker 03:
I'm going to have to find the specific provision earlier in the statute.

[00:12:55] Speaker 03:
I'm not just slipping through it now.

[00:12:57] Speaker 03:
I'm not sure which one it says that no.

[00:13:01] Speaker 03:
No petition can be brought except as stated in E. But that is implicitly authorizing.

[00:13:10] Speaker 03:
It's taking away any other field of jurisdiction and granting jurisdiction in this as stated in E, too.

[00:13:18] Speaker 04:
So you think the exception to a jurisdiction stripping provision is itself a grant of jurisdiction?

[00:13:25] Speaker 04:
Excuse me?

[00:13:26] Speaker 04:
So the exception to the jurisdiction stripping provision

[00:13:31] Speaker 04:
is itself a grant of jurisdiction?

[00:13:33] Speaker 03:
Yes, I would say that, Your Honor.

[00:13:34] Speaker 03:
And I think E3 is another way of understanding this.

[00:13:38] Speaker 03:
E3, just like E2, says judicial review of determinations under Section 1225B of this title and its implementation is available in an action instituted in DDC.

[00:13:50] Speaker 03:
That's not saying that if you have an action under some other head of jurisdiction, you can also bring these claims.

[00:13:57] Speaker 03:
That's saying that courts can hear these claims

[00:14:00] Speaker 03:
in an action to bring only these claims.

[00:14:02] Speaker 03:
That's exactly the same thing that he, too, is doing.

[00:14:05] Speaker 03:
I would also point to the extent that this is ambiguous.

[00:14:09] Speaker 03:
Of course, various kinds of construction require it to be construed in item's favor.

[00:14:14] Speaker 03:
And the government, frankly, had it right the first time.

[00:14:18] Speaker 03:
The government, in multiple briefs and multiple courts, has previously argued that there is no custodial requirement.

[00:14:25] Speaker 03:
The government is, of course, entitled to change its position

[00:14:28] Speaker 03:
But it's hard for credibly argue that this exact same language this exact same statute without amendment.

[00:14:35] Speaker 03:
previously meant there was no custodial requirement, now unambiguously has a custodial requirement.

[00:14:41] Speaker 03:
So at a minimum, the statute is ambiguous on issue.

[00:14:46] Speaker 03:
And then you get to various canons of construction, the canon that judicial jurisdiction stripping provisions are read narrowly, the canon that ambiguous immigration statutes are construed against the federal government, and the canon of constitutional avoidance.

[00:15:01] Speaker 04:
You're not relying on the presumption of reviewability?

[00:15:03] Speaker 03:
Excuse me?

[00:15:04] Speaker 04:
The presumption of reviewability?

[00:15:05] Speaker 03:
I would rather put it as the presumption that jurisdiction stripping statutes are construed narrowly, even when, and when they include exceptions to jurisdiction stripping, that those are given their full force.

[00:15:22] Speaker 03:
So I would put that a little bit differently.

[00:15:23] Speaker 04:
And again, of course- I find the presumption of reviewability to be a very strange fit with the jurisdiction stripping statute.

[00:15:29] Speaker 03:
It is, and yes and no.

[00:15:31] Speaker 03:
I mean, certainly there's no question Congress intended to strip jurisdiction of many claims.

[00:15:35] Speaker 03:
There's also equally no question that Congress did intend there to be jurisdiction over the claims in E2.

[00:15:41] Speaker 03:
The Supreme Court addressed this, not with E2 in particular, but about IRIRA in Pusana v. Holder.

[00:15:48] Speaker 03:
It said many provisions of IRIRA were aimed at protecting from court review exercises of the executive discretion.

[00:15:54] Speaker 03:
But no law pursues its purpose at all costs, and the textual limitations upon a law's scope are no less a part of its purpose.

[00:16:01] Speaker 03:
There is no question Congress wanted E2 to be usable, and in the vast majority of cases, given Congress's overall intent to get people out of the country without judicial review to

[00:16:14] Speaker 03:
In every case, avoid having people released into the interior, if at all possible.

[00:16:19] Speaker 03:
It wanted to get judicial review out of the way of removal.

[00:16:22] Speaker 03:
It wanted to cut down on stays of removal so judicial review could proceed.

[00:16:26] Speaker 03:
And so it had to want HBS to proceed on claims related to a removal order after the removal order was issued, at which point it expected people to be out of custody.

[00:16:37] Speaker 03:
So we think the text and the intent of the statute both point this direction.

[00:16:41] Speaker 03:
even before you get to the cannon, which we believe to be dispositive.

[00:16:45] Speaker 03:
I know I'm over my time.

[00:16:47] Speaker 03:
If there are any other issues, I'd be happy to address them.

[00:16:50] Speaker 04:
Thank you.

[00:16:52] Speaker 03:
And I've reserved two minutes.

[00:17:09] Speaker 04:
Good morning, Mr. Ward.

[00:17:11] Speaker 01:
Good morning, may please support Brian more on behalf.

[00:17:16] Speaker 01:
Guys, the court should have firm the decision of the district court finding there is no jurisdiction over the habeas petition that issue.

[00:17:22] Speaker 01:
The tax structure and history of section twelve twenty five sets out the expedited removal process and section twelve fifty two all support the conclusion first.

[00:17:32] Speaker 01:
that Congress didn't intend to grant jurisdiction in Section 1252E2 over a habeas petition brought by a petitioner who's already been removed, at which point there's no longer any detention to challenge.

[00:17:44] Speaker 01:
And even if the court doesn't agree with that, I think it's clear from the statutory text and the way the statutory structure is set up that Congress clearly didn't intend to provide jurisdiction in Section 1252E2 for an individual to challenge the process or the authority by which

[00:18:03] Speaker 01:
In section 1225 itself, 1225B, you have Congress saying plainly that unless an individual can raise an asylum claim, they should be removed without any further hearing or review.

[00:18:14] Speaker 01:
And then in section 1252A2A, you have Congress setting out a near universal limit on jurisdiction to raise challenges related to the expedited removal process.

[00:18:24] Speaker 01:
saying explicitly that unless Congress reserved or authorized jurisdiction under section 1252 E2 or E3, and not withstanding any other provision of law, there should be no jurisdiction for any court to hear a claim arising from or related to an expedited removal order.

[00:18:40] Speaker 02:
So E2 allows you to bring a challenge to whether an order was actually issued.

[00:18:47] Speaker 01:
It does not.

[00:18:49] Speaker 01:
It allows you to challenge the fact of whether you received.

[00:18:52] Speaker 01:
Whether you received.

[00:18:55] Speaker 01:
Yes.

[00:18:55] Speaker 01:
And the third circuit said in the casket that the challenge is limited to whether you were given a piece of paper called an expedited removal.

[00:19:04] Speaker 02:
What if a random name in the phone book handed you a piece of paper with your name on it said, here's a removal.

[00:19:13] Speaker 02:
Challenge that under E2.

[00:19:17] Speaker 02:
So I think that would be a closer question that we have here.

[00:19:20] Speaker 02:
And I think that's the issue that, so how is that different than an order signed by someone who is not properly appointed?

[00:19:28] Speaker 02:
Both of them have zero power to issue the order.

[00:19:33] Speaker 01:
So I think section 1252 E five says again, that the question is a factual question of whether you were given a piece of paper.

[00:19:41] Speaker 02:
You just said, you know, it might not, it might not count if it was some random person off the street.

[00:19:47] Speaker 02:
who gave you the order and signed the order.

[00:19:51] Speaker 02:
I agree with you.

[00:19:52] Speaker 02:
Clearly that would not count as an order.

[00:19:55] Speaker 02:
So how is this different?

[00:19:58] Speaker 01:
I think the problem with reading any authority to challenge the way in which the order was issued or any aspect of the process

[00:20:06] Speaker 01:
issuing the order as part of what Congress was reserving in Section 1252 E2B means that the limits on jurisdiction and channeling of claims in Section 1252 E3.

[00:20:17] Speaker 01:
So it's clear that Congress intended in Section 1252 E3 that to be the place where individuals could challenge the way in which... So for this particular habeas petitioner, when could he have filed a habeas petition challenging

[00:20:36] Speaker 02:
the appointment of the person who issued.

[00:20:42] Speaker 01:
He could not.

[00:20:42] Speaker 01:
He couldn't so in order to challenge

[00:20:47] Speaker 01:
process by which the order was issued or the authority of constitutional authority of the immigration officers that issue these expedited removal orders.

[00:20:55] Speaker 01:
That sort of claim is a challenge to the system by which the orders are issued.

[00:20:58] Speaker 01:
Now we need to be brought within 60 days of the process.

[00:21:02] Speaker 01:
Section 1225B itself.

[00:21:04] Speaker 02:
There's some stuff in your brief that says, you know, he could have filed a habeas petition while he was in custody before he got the final order.

[00:21:10] Speaker 02:
But I take what you're saying now.

[00:21:11] Speaker 02:
I think I probably agree with you.

[00:21:15] Speaker 02:
to be and he could have filed a habeas petition while he was in custody but he couldn't have filed a habeas petition that challenged the appointment of the person who is going to issue the order.

[00:21:24] Speaker 01:
That's correct.

[00:21:25] Speaker 01:
So there's two ways in which this case can be resolved I think.

[00:21:28] Speaker 01:
There is a custody requirement in section 1252 E2.

[00:21:32] Speaker 01:
There has to be some reason that Congress used habeas corpus proceedings in that provision.

[00:21:37] Speaker 01:
The opening language of section E2 and E3 is nearly identical, except in E2 Congress says that judicial review of determination under section 1225B is available in habeas corpus proceedings.

[00:21:50] Speaker 01:
And then the immediately following section it says, judicial review of determination under section 1225B and its implementation is available in action.

[00:22:02] Speaker 01:
Certainly, there are other differences between habeas proceedings and other actions in federal court.

[00:22:08] Speaker 01:
But I don't think any of them explain why Congress would have specifically chosen to limit E2 to habeas.

[00:22:15] Speaker 02:
Imagine that E3 didn't exist.

[00:22:17] Speaker 02:
And I think that this challenge could be brought under E2 if the timing was right.

[00:22:25] Speaker 02:
When could he have filed that petition?

[00:22:29] Speaker 02:
I'm not sure I understand the question.

[00:22:30] Speaker 02:
Say that he could bring a claim under E2.

[00:22:33] Speaker 02:
Imagine that I think you can bring a challenge to the appointment of the person who issued the order under E2.

[00:22:43] Speaker 02:
I know you don't agree with that.

[00:22:43] Speaker 02:
You think it has to happen under E2.

[00:22:45] Speaker 02:
Imagine, I think it could happen under E2.

[00:22:49] Speaker 02:
When could that happen?

[00:22:52] Speaker 01:
So a challenge under E2 needs to be brought while the individual is still in the team.

[00:22:56] Speaker 02:
So in this situation, on these facts, it could never have

[00:23:00] Speaker 01:
No, so he could have brought a habeas claim while he was still detained.

[00:23:04] Speaker 01:
He was well aware that he was in the expedition.

[00:23:06] Speaker 01:
But he could have brought it before the final order while he was still detained.

[00:23:09] Speaker 02:
Yes, sir.

[00:23:10] Speaker 02:
If I'm right about reading each of these.

[00:23:12] Speaker 02:
Yes, sir, I still think.

[00:23:13] Speaker 02:
That would be right.

[00:23:17] Speaker 02:
He's challenging the appointment of a person who hasn't yet issued the order.

[00:23:23] Speaker 01:
Well, again, I think there's a separate barrier to bring that challenge, even if you can bring a habeas challenge to custody under.

[00:23:31] Speaker 02:
And maybe that this doesn't matter.

[00:23:34] Speaker 02:
And what I just asked doesn't matter.

[00:23:36] Speaker 02:
Why is the government's policy to not issue the final order?

[00:23:41] Speaker 02:
Not his hand.

[00:23:42] Speaker 02:
So he's on the plane.

[00:23:44] Speaker 01:
I don't know that there is a policy of doing that.

[00:23:47] Speaker 01:
I would say that in this case,

[00:23:49] Speaker 01:
The timeline was that he came in, he was detained at the airport, and he raised a fear of persecution.

[00:23:55] Speaker 01:
And there's a process under the expedited removal statute that allows that process to play out.

[00:24:00] Speaker 02:
You get an interview with him.

[00:24:02] Speaker 02:
Maybe policy's the wrong word, but assume it's the practice.

[00:24:05] Speaker 02:
This happens to everybody in this situation, at least at O'Hare.

[00:24:09] Speaker 02:
Why is that the practice?

[00:24:11] Speaker 01:
I don't know that it's a standard practice, Your Honor, although I do think anecdotally it does often happen in close removal.

[00:24:17] Speaker 02:
You know why?

[00:24:18] Speaker 01:
But I think that the idea of the expedited removal statute, this court is held and the Supreme Court is held, is to quickly remove individuals once it's been determined that they can't raise a credible fear of persecution or asylum.

[00:24:30] Speaker 01:
And so it's often close to when these people are quickly removed once they have a final expedited removal order.

[00:24:37] Speaker 01:
So it's often very close in time to when they receive the order.

[00:24:43] Speaker 04:
I think it's interesting that government suggests that this type of appointments clause could fit under E3 if it were brought within the 60 days.

[00:24:53] Speaker 04:
Because the regulation here says a number of different types of officials can serve as immigration officers.

[00:25:01] Speaker 04:
And as I read the regulations, some of those officials are officers of the United States, you know, it's confirmed by the Senate, appointed by the president.

[00:25:12] Speaker 04:
So how could a person bring an appointments clause challenge within 60 days, not knowing whether their removal order would be signed by someone who was in fact an officer of the United States or by someone who was not an officer of the United States?

[00:25:29] Speaker 04:
I mean, how could they in fact challenge that until it was applied to them?

[00:25:34] Speaker 01:
But I think the statute 1225B contemplates that integration officers will sign these orders.

[00:25:40] Speaker 01:
There's nothing in that statute that can be read to require appointment of individuals.

[00:25:44] Speaker 01:
And it's long been the practice.

[00:25:46] Speaker 04:
Well, it may be that the Appointments Clause challenge fails on the merits.

[00:25:51] Speaker 04:
But the government's position in its brief seems to be that that type of challenge would be appropriate as a challenge to the system.

[00:25:58] Speaker 04:
And I'm just not sure how it fits under E3 at all.

[00:26:02] Speaker 01:
So I think it would be a challenge to the system that permits unappointed immigration officers to issue these orders, which has been a practice that's existed since.

[00:26:10] Speaker 04:
You wouldn't necessarily be able to raise such a challenge until you knew whether an officer or a non-officer was signing your removal order.

[00:26:21] Speaker 04:
The system or the regulation would not be facially invalid on Appointments Clause grounds.

[00:26:28] Speaker 04:
It might end up being invalid as applied to a person, but not facially.

[00:26:33] Speaker 01:
Well, I think that there were a number of obviously a number of expedited removal orders issued in the first 60 days after section 1225 B was passed.

[00:26:43] Speaker 01:
Those individuals could have raised an appointments clause claim or challenged the statute.

[00:26:48] Speaker 01:
And we know that part of the limits on a 60 day limit in section 1225 E3 was in place because Congress have viewed this expedited removal system is very important.

[00:27:00] Speaker 01:
as a process for dealing with a large number of individuals arrived in the United States.

[00:27:06] Speaker 01:
So it wanted any challenge to the system quickly resolved and resolved in a consolidated way.

[00:27:12] Speaker 02:
Congress could have avoided E3 review by just waiting 60 days before they reported the first person.

[00:27:23] Speaker 01:
So this court is held in the MMV case.

[00:27:25] Speaker 01:
that that 60-day limit is jurisdiction.

[00:27:27] Speaker 01:
So a claim has to be brought within 60 days of when the policy first went into place.

[00:27:33] Speaker 04:
So that's not the allegation of what happened in this case, and there's no... I'm just very skeptical that an Appointments Clause challenge is a challenge to the system.

[00:27:43] Speaker 04:
I mean, maybe that the government prevails for other reasons, but this idea that an Appointments Clause challenge, which affects someone's individual rights, arguably is a challenge to the system seems like a

[00:27:55] Speaker 04:
or fit?

[00:27:58] Speaker 01:
Well, I would say just generally, Your Honor, I think it's helpful to look at the legislative history here.

[00:28:03] Speaker 01:
And I think that it's hard to read the legislative history and what Congress was doing in Act in Iran, to read it to Congress to be intending for there to be wide review or lots of opportunities for judicial review related to explanation.

[00:28:18] Speaker 01:
Right.

[00:28:18] Speaker 04:
I mean, the fact that you can't be under A3 doesn't mean that you get review of an appointments clause challenge under E2.

[00:28:23] Speaker 04:
It's just that you might not be able to get it under E3.

[00:28:26] Speaker 01:
Yes, Your Honor.

[00:28:26] Speaker 01:
And if you could raise the habeas challenge under Section E2, those challenges obviously arise when an individual is dealing with their individual circumstances.

[00:28:35] Speaker 01:
So when they're detained, they can be raised anywhere in the country.

[00:28:38] Speaker 01:
There aren't the venue limitations in E2 that there are in E3.

[00:28:42] Speaker 01:
So it would eliminate Congress's intent to consolidate and quickly resolve claims in Section E3.

[00:28:48] Speaker 01:
could just reframe any claim so that the process by which the order was issued as a habeas claim, raise it at any time.

[00:28:56] Speaker 01:
Thank you.

[00:29:21] Speaker 03:
To pick up on the discussion that the court just had on the interaction between 1252E3 and 1252E2, Judge Rao, I believe, is correct that this is not a challenge to any of the subjects listed in E3.

[00:29:37] Speaker 03:
E3 is not about anything that might have broader consequences for the statute.

[00:29:41] Speaker 03:
It's specifically the constitutionality of the statute or the constitutionality or lawfulness of any regulation implementing it.

[00:29:50] Speaker 03:
not a word of the statute or any 1225 regulations needs change.

[00:29:55] Speaker 03:
IM takes all of those to be a given, and if an appointed officer had done exactly what these unappointed employees had done, there would be no claim.

[00:30:05] Speaker 03:
IM, of course, thinks they wouldn't have made the same errors, but that's not a claim you can review, because 1252E2 is still limited to those three very narrow heads of jurisdiction.

[00:30:16] Speaker 03:
And that, I think, takes care of much of the concern the government raises for escaping E3's 60-day time limit.

[00:30:26] Speaker 03:
Even if an E3 challenge would have or did succeed, that still doesn't allow an E2 challenge unless it fits within one of those three heads of jurisdiction.

[00:30:35] Speaker 03:
And as I explained previously, we believe this fits into E2B.

[00:30:40] Speaker 03:
Judge Cooper's D.A.M.

[00:30:41] Speaker 03:
decision is a good example where

[00:30:43] Speaker 03:
The petitioners there were arguing their orders of removal were unlawful because they were issued pursuant to the transit bar, a regulation that had already been enjoined at that point.

[00:30:53] Speaker 03:
And yet the fact that they were outside the 60-day window meant even that plain unlawfulness was not a claim they could bring.

[00:31:00] Speaker 03:
So there's no real floodgates problem of all sorts of claims escaping E3.

[00:31:05] Speaker 03:
I would also respond to what my friend at the other table suggested that Congress didn't intend these claims.

[00:31:13] Speaker 03:
Congress doesn't get to set the boundaries of the appointments.

[00:31:18] Speaker 03:
The Supreme Court has said repeatedly that neither Congress nor the executive may modify the prohibitions, the rules of the Appointments Clause.

[00:31:27] Speaker 03:
It said that immigration decisions such as these may be entrusted to executive officers.

[00:31:33] Speaker 04:
Congress can't change the meaning of the Appointments Clause, of course.

[00:31:37] Speaker 04:
But can it strip jurisdiction from the courts to consider an Appointments Clause challenge?

[00:31:42] Speaker 04:
I mean, that's really the question here.

[00:31:43] Speaker 03:
It's not something Congress has ever tried to do explicitly, and so the court has never reached it.

[00:31:47] Speaker 03:
I think it would raise substantial constitutional concerns.

[00:31:51] Speaker 03:
As you said, Judge Rao, in your Make the Road dissent, Congress, of course, cannot violate other constitutional provisions in the exercise of its control over jurisdiction.

[00:31:59] Speaker 03:
So at an absolute minimum, the idea that if no challenge was brought within a 60-day window in 1997, Congress is immunized for all-time future appointments clause violations

[00:32:10] Speaker 03:
That raises massive constitutional concerns for our separation of powers.

[00:32:15] Speaker 03:
And so to the extent that there's ambiguity, that should be construed in favor of jurisdiction here.

[00:32:23] Speaker 03:
If I could, I know I'm over my time for rebuttal, just to pick up on Judge Walker's hypothetical, if I could, because I think that is a useful thought experiment.

[00:32:34] Speaker 03:
And I'm happy to stop if the court would approve.

[00:32:40] Speaker 03:
The question of whether or not a claim in fact was issued.

[00:32:43] Speaker 03:
And that's what E-5 says, not in the handout piece of paper, but it was an order in fact issued.

[00:32:49] Speaker 03:
If I purported to issue an order, there of course would be jurisdiction to say no, the United States didn't authorize that person, no order was issued.

[00:32:57] Speaker 03:
If an IRS agent purported to issue an order, the courts would have jurisdiction to say no.

[00:33:03] Speaker 03:
Congress didn't authorize that person to issue an expedited removal order.

[00:33:08] Speaker 03:
No order, in fact, was issued.

[00:33:10] Speaker 03:
Similarly, a CBP agent who had been fired a month before.

[00:33:13] Speaker 03:
the courts could say the executive didn't authorize that person to issue an order, and so an order, in fact, is issued.

[00:33:19] Speaker 03:
And then we come to this case.

[00:33:20] Speaker 03:
The Constitution does not authorize unemployed employees to issue these orders.

[00:33:26] Speaker 03:
And it can't be that a regulatory or statutory challenge outranks the Constitution and changes the meaning of E2B.

[00:33:35] Speaker 03:
And suddenly, it's no longer a challenge to whether an order, in fact, is issued.

[00:33:39] Speaker 03:
Thank you for the court's indulgence.

[00:33:42] Speaker 04:
Thank you.

[00:33:43] Speaker 04:
Casey Simone.