[00:00:01] Speaker 00: Case number 21-5275, NS, individually and on behalf of all others similarly situated, versus Robert A. Dixon, United States Marshal, District of Columbia Superior Court, in his official capacity, appellant. [00:00:15] Speaker 00: Ms. [00:00:15] Speaker 00: Feudum for the appellant, Mr. Gonen for the appellate. [00:00:21] Speaker 02: Good morning, Your Honors. [00:00:22] Speaker 02: Elissa Feudum on behalf of the appellant of the United States. [00:00:27] Speaker 02: The attorney general acted well within his statutory authority when he delegated to the US Marshals the powers and duties of immigration officers, including the power to briefly hold class members pursuant to a detainer and an administrative warrant. [00:00:43] Speaker 02: The district court's order to the contrary should be overturned and the injunction vacated because it violates 8 USC 1252 F1 and incorrectly found the delegation to be unlawful. [00:00:56] Speaker 02: ICE relies upon cooperation from the U.S. [00:00:59] Speaker 02: Marshals Service to carry out its duties to arrest and detain certain removable non-citizens, as directed by Congress under sections 1226 and 1231 of the INA. [00:01:12] Speaker 03: If the Homeland Security Act transferred immigration arrest and detention authority to the Secretary of Homeland Security, how is it that power could live on in the marshals under the authority of the Attorney General when the Attorney General no longer has the authority to delegate? [00:01:39] Speaker 02: Because the HSA contained a savings provision for completed actions, and Congress defined completed actions. [00:01:49] Speaker 02: And its definition was broad to include, I believe it said, all grants, orders, and privileges. [00:01:54] Speaker 03: It doesn't refer to delegations. [00:01:57] Speaker 03: It doesn't. [00:01:58] Speaker 03: It doesn't. [00:01:59] Speaker 03: You're relying, I take it, on the 2002 order, the 1996 order. [00:02:05] Speaker 03: Those are, as a formal matter, orders. [00:02:07] Speaker 03: But one typically thinks of an order as something that could be complete, a completed administrative action. [00:02:15] Speaker 03: Whereas the nature of the delegation, as you are relying on it, [00:02:19] Speaker 03: is as something ongoing. [00:02:21] Speaker 03: So, for example, who are the marshals supervised by in the exercise of the authority that you contend they have under the 2002 order? [00:02:32] Speaker 03: The attorney general? [00:02:34] Speaker 02: Well, as the court noted, the immigration powers that were previously vested in the attorney general were transferred to the Department of Homeland Security, and the marshals are not a subcomponent agency. [00:02:45] Speaker 02: of the Department of Homeland Security. [00:02:47] Speaker 03: Right, so they're not supervised in this activity by the Secretary of Homeland Security. [00:02:52] Speaker 02: I wouldn't describe it as supervision, no. [00:02:55] Speaker 03: And they're not supervised in this role by the Attorney General because the Attorney General's authority has all rolled over to the Secretary of Homeland Security. [00:03:04] Speaker 02: Yeah, and I would say that it's not a function of supervision but one of cooperation between ICE and the U.S. [00:03:13] Speaker 02: Marshals Service, which is a [00:03:15] Speaker 02: a law enforcement agency, the oldest law enforcement agency in this country. [00:03:19] Speaker 02: And I would draw the court's attention to the fact, I know you've focused on the word orders, but I would draw the court's attention to the word grants and privileges, which are also preserved by the completed administrative actions. [00:03:31] Speaker 02: And I would submit that the delegations are a grant and that they bestow upon the US Marshals a privilege and that as a result, [00:03:43] Speaker 02: The HSA is not an impediment to the powers that were bestowed. [00:03:49] Speaker 03: Are you aware whether there are any other delegations of authority that were made before the 2003, before the Homeland Security Act, that might similarly be grandfathered and be continuing? [00:04:08] Speaker 02: I'd have to look at that. [00:04:09] Speaker 02: I'm not aware off the top of my head if there were. [00:04:14] Speaker 02: I would suspect that there probably are, just by the time frame that we're talking about and the fact that your question would encompass decades of administrative action. [00:04:26] Speaker 02: My guess would be that there is, but I can't point. [00:04:29] Speaker 06: There's a delegation from the attorney general to the DAAC, isn't there? [00:04:33] Speaker 02: Yes, that's correct. [00:04:34] Speaker 02: Yeah, that would be an example. [00:04:36] Speaker 02: Thank you. [00:04:36] Speaker 02: Yes, I would have to imagine that the answer would be yes. [00:04:40] Speaker 02: I mean, I know that. [00:04:43] Speaker 02: there was an argument made by my friends regarding if this delegation that talked about this delegation with respect to the delegation to the deputy and whether it continues to live on in our position as we expressed in our papers is that there is a difference between a specific delegation, which is governed by terms and a catch all designation, which says whatever powers I have, you have to. [00:05:09] Speaker 02: And I think that there is a [00:05:11] Speaker 02: a distinction to be drawn between a delegation of such generality of whatever powers I have, you have too, and a specific delegation like the one we have here, which encompasses specific terms. [00:05:22] Speaker 03: It's not your position. [00:05:23] Speaker 03: I mean, there was an amicus brief file. [00:05:25] Speaker 03: But I take it it's not your position that without the 2002 order and the 1996 order, that the marshals are authorized to carry out the function that they carried out in this case. [00:05:39] Speaker 03: They're not authorized to. [00:05:41] Speaker 03: detain people who have been released from a court. [00:05:46] Speaker 02: We did not appeal on that basis. [00:05:49] Speaker 02: And so I can see that we've we've waived those arguments here. [00:05:53] Speaker 02: I think we made that argument in the district court. [00:05:56] Speaker 02: The argument was made at the district court. [00:05:58] Speaker 02: And I do think that the argument could still be made and that there is validity to the notion that the U.S. [00:06:05] Speaker 02: Marshals have the authority pursuant to their enabling statutes to [00:06:10] Speaker 02: to act upon these warrants. [00:06:13] Speaker 02: There's all sorts. [00:06:13] Speaker 02: I mean, there's retake warrants. [00:06:15] Speaker 02: There's parole warrants. [00:06:16] Speaker 02: There's military absconcients warrants, all of which are administrative warrants that the marshals have traditionally been able to execute upon for decades. [00:06:25] Speaker 02: And so I think there are arguments that can be made. [00:06:27] Speaker 02: But I will acknowledge that we did make a decision not to pursue that basis of appeal here. [00:06:36] Speaker 03: This is an unusual kind of warrant, and maybe the military warrants that you're talking about are also civil, but marshals typically don't have authority to execute non-criminal warrants, is that correct? [00:06:50] Speaker 02: Well, I take your point that they're enabling statutes speak to their authority to arrest for felonies committed in their presence, as well as certain felonies for which they have probable cause to believe were committed. [00:07:03] Speaker 02: But I think an argument could be made that absent a statute that specifically divests them of the power to cooperate with a fellow law enforcement agency such as ICE, particularly in view [00:07:15] Speaker 02: of other statutes which provide for cooperation with ICE and between law enforcement agencies, that there are arguments that could be made that notwithstanding the, I think it's section 566 that you're referring to, that notwithstanding that apparent limitation that absent a particular statement precluding the marshals from such cooperation that it would exist. [00:07:40] Speaker 02: But again, that's not an argument that we preserve for this appeal. [00:07:43] Speaker 02: So I don't make that argument here today. [00:07:45] Speaker 03: I mean, to the extent that the marshals are being treated under the delegation orders that you do rely on as, in effect, immigration officers, isn't there a further problem that immigration officers, and I think this is true when state officials are delegated under 566 to cooperate, [00:08:12] Speaker 03: I may be mixing up my authorities. [00:08:13] Speaker 03: But when there is a statute that says state officials can work with INS, isn't there a requirement that they also have training to be de facto immigration officers? [00:08:27] Speaker 03: There's no assertion that there's been any training. [00:08:30] Speaker 02: Well, I think it's interesting because I think the section that you're referring to is 1357 G2 as well as G10. [00:08:39] Speaker 02: And I will note that I [00:08:40] Speaker 02: I was rereading my reply brief in this case, and I miscited the statute as I think 1101 in one instance. [00:08:45] Speaker 02: So apologies for that. [00:08:47] Speaker 02: But I believe that that's the statute you're referring to. [00:08:49] Speaker 02: Thank you. [00:08:50] Speaker 02: And I think there's two points to be made here. [00:08:52] Speaker 02: On the one hand, you have section G2, which says that when there is a contract-like agreement between state officials, [00:09:02] Speaker 02: and the federal government for state officials to act in a contractual capacity as immigration officers, they have to have certain training. [00:09:10] Speaker 02: And I think from that, you can say, look, Congress knew how to talk about training. [00:09:14] Speaker 02: If Congress wanted training, they knew the words, and they knew how to say it. [00:09:17] Speaker 02: I thought that was in the reg, not in the statute. [00:09:20] Speaker 02: I believe that if you look at the statute itself, where it talks about with, [00:09:27] Speaker 02: With respect to, I think it's 1357 G2. [00:09:31] Speaker 02: I believe it is in the actual statute, Your Honor. [00:09:35] Speaker 02: Give me a minute, I'll find that. [00:09:41] Speaker 02: Yeah, it's 1357 G2. [00:09:43] Speaker 02: It's in the statute, Your Honor, not the reg. [00:09:44] Speaker 02: I think you're thinking of [00:09:47] Speaker 02: the the regulation where it speaks to certain individuals that have to have right so that's speaking to federal individuals who have who act as immigration officers under the regulations of individuals. [00:10:00] Speaker 02: That would have to have certain training I think what judge pillar is asking about is 1357 G 2 which is the statue and it [00:10:06] Speaker 02: speaks to training that certain state officials have to have. [00:10:09] Speaker 02: And so my point was that when Congress wanted to enforce or require certain training, it knew how to say that. [00:10:19] Speaker 02: And it did not say anything about that when it issued, for example, other delegatory powers to the attorney general to make delegations speaking to that. [00:10:29] Speaker 02: But I would also make one other point to your point, Judge Pillard. [00:10:32] Speaker 02: If you look further down in 1357 to Section G10, [00:10:36] Speaker 02: That's a provision that says that state employees outside of this quasi-contractual relationship spoken to in G2, it says that state employees may cooperate with ICE in the apprehension and detention of removable non-citizens. [00:10:50] Speaker 02: And it doesn't say anything about training there. [00:10:53] Speaker 02: So it seems like what Congress may have been saying is if you have some sort of contractual relationship, then there has to be this training. [00:11:01] Speaker 02: But if you're just talking about cooperation, [00:11:03] Speaker 03: But that may be passing information, for example, that does not at all imply that a state officer who is not does not have knowledge of and adhere to federal law functions of these. [00:11:18] Speaker 03: officers or employees could, for example, serve an I-200 and make an arrest. [00:11:26] Speaker 03: I think the same statute seems to suggest otherwise. [00:11:30] Speaker 03: If you can act like an immigration officer in that regard, you'd be subject to the regulations that Judge Ginsburg mentioned. [00:11:38] Speaker 02: I think, and I apologize if I don't have the full statute in front of me, but I think 1357 G-10 does speak to apprehension and detention. [00:11:46] Speaker 02: or at least alludes to that. [00:11:48] Speaker 02: And so I think that there is this notion that Conk. [00:11:52] Speaker 03: Communicate with the Attorney General regarding, this is 10a, regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States. [00:12:03] Speaker 03: or otherwise to cooperate with the attorney general in the identification, apprehension, detention, or removal of aliens not lawfully present, which one way of reading that is that you're cooperating by helping the attorney general to apprehend or the attorney general, the secretary of homeland securities [00:12:25] Speaker 03: the staff to actually do the apprehending? [00:12:28] Speaker 03: I mean, that would be a way to reconcile. [00:12:30] Speaker 02: I take your point. [00:12:31] Speaker 02: That would be one way to read it. [00:12:32] Speaker 02: I think another way to read it would be that it includes references to apprehension and detention. [00:12:36] Speaker 02: But again, that has to do with state officers. [00:12:38] Speaker 02: It's not what I'm briefing. [00:12:39] Speaker 02: And I just didn't remember to say to you that I was saving time for rebuttal, although I did say it to your question. [00:12:48] Speaker 06: But G-10 also relates to state or political subdivision [00:12:54] Speaker 06: Yes, state. [00:12:56] Speaker 06: So how does that, what are you saying about that, the reflection anyway on the training requirement for federal or martial service? [00:13:06] Speaker 02: I was just making the point, Your Honor, that it seems that Congress knew how to speak to training. [00:13:11] Speaker 02: And so when you look at, for example, 1226 and Congress speaks to a warrant of the attorney general, and then if you look at the regulation for [00:13:21] Speaker 02: 236.1, which is the regulation implementing Section 1226 that identifies that warrant of the Attorney General as the I-200, which is the warrant. [00:13:31] Speaker 02: In this case, nowhere in Section 1226 does Congress say, and upon executing these warrants, there has to be some sort of training. [00:13:39] Speaker 02: And if you look at 1101A18, where Congress defined immigration officer, [00:13:46] Speaker 02: Congress did so and said it could be somebody, an employee or class of employees designated individually or by regulation. [00:13:56] Speaker 02: So there's the word or there. [00:13:58] Speaker 02: And I think if Congress wanted to say, but in case one, there has to be training, I would just point to 1367 and say, look, Congress knew how to talk about training and there's no indication. [00:14:07] Speaker 02: that Congress was doing so. [00:14:08] Speaker 02: I had some other points, but perhaps I should save my one minute for everybody, Your Honor. [00:14:13] Speaker 03: Our practice in this court is that we will give you time as long as we find it useful to keep casting. [00:14:19] Speaker 03: OK. [00:14:19] Speaker 02: Well, then thank you. [00:14:20] Speaker 03: I appreciate that. [00:14:20] Speaker 03: We've been hearing from you, so it tends to be a good sign if we're finding your. [00:14:24] Speaker 03: colloquy with you useful, and we will endeavor to give you also some time for rebuttal. [00:14:32] Speaker 03: So would the marshals be able, on your theory, to make the arrests and detentions in question if there were no I-200 forms involved? [00:14:42] Speaker 02: I think that's a closer question. [00:14:44] Speaker 02: Our position would be yes, that the detainer itself provides probable cause. [00:14:48] Speaker 02: And I think that there could be arguments to be made that under common law doctrines, like fellow officer rule and such, that there is authority for the marshals to hold somebody also under law that exists concerning wants and holds, which is other areas that we did brief before the district court on summary judgment. [00:15:06] Speaker 02: But to be fair, we did not preserve those arguments for appeal. [00:15:10] Speaker 02: And so I'm not making those arguments here. [00:15:12] Speaker 03: So the I-200 is directed at immigration officers? [00:15:18] Speaker 03: Yes. [00:15:18] Speaker 03: That are authorized under 1226 or 1357, associated regulations. [00:15:25] Speaker 03: And none of those regulations authorize the marshals to serve an I-200. [00:15:30] Speaker 02: I think that that's right. [00:15:31] Speaker 02: I mean, our position is that the 2002 delegation, and again, we can talk about the 1996 and the 2002, [00:15:38] Speaker 02: I think the 2002 can be viewed standing alone. [00:15:40] Speaker 02: I don't think it depends upon the 1996 delegation. [00:15:42] Speaker 02: So just viewing the 2002 delegation on its own, it imbues the marshals with the authority to act as immigration officers. [00:15:50] Speaker 02: And when you talk about, well, was that authority permissive? [00:15:54] Speaker 02: I think you can look back at both. [00:15:56] Speaker 02: You can look at 510, Section 510, or 1101. [00:15:59] Speaker 02: 3A4 that gave the attorney general the authority to make delegations. [00:16:03] Speaker 02: And when you look at the definition that Congress assigned to immigration officer in 1101A18, it says that that position can be bestowed either by regulation or there is a parallel track. [00:16:20] Speaker 02: And that parallel track is delegation. [00:16:21] Speaker 02: And so that's the track that we come to the court saying that these marshals were imbued with this authority. [00:16:28] Speaker 03: just the ICE that's doing it. [00:16:30] Speaker 03: Is an I-200 something that is considered to have to be personally served? [00:16:35] Speaker 02: ICE does serve the I-200, and that is by regulation or requirement, I believe, on ICE. [00:16:43] Speaker 02: In this case, I believe we did file the I-200, and there is a service signature on it. [00:16:49] Speaker 02: It's the ICE officer that I believe serves that, not the US Marshal. [00:16:53] Speaker 03: And that was attached to a brief in this court? [00:16:57] Speaker 02: Yeah. [00:16:58] Speaker 02: I can see it's perhaps not the best look of all time. [00:17:01] Speaker 02: But the PLEs want to frame the issue in this court as whether or not the US Marshals had authority to detain NS and the other class members. [00:17:14] Speaker 02: without a warrant, but that's not the issue here because it was never the issue below. [00:17:18] Speaker 02: Now, I wish I could tell you why that I-200 was not included within the appendix below. [00:17:24] Speaker 02: I didn't handle the appendix below. [00:17:26] Speaker 02: Unfortunately, the attorney who did is no longer with the U.S. [00:17:28] Speaker 02: Attorney's Office and the individual who certified the administrative record is no longer with the Marshall Service. [00:17:33] Speaker 02: And even if I spoke to them, I couldn't reveal privileged communication. [00:17:36] Speaker 02: So I can't tell you that, but I have to believe that it was an oversight or an accident at some point. [00:17:43] Speaker 02: in time. [00:17:43] Speaker 02: There was never a dispute below as to whether or not there was an I-200. [00:17:48] Speaker 02: The appellees argued repeatedly and successfully to the district court that an I-200 is not a true warrant. [00:17:54] Speaker 02: The district court accepted that position. [00:17:56] Speaker 02: We obviously disagree with that. [00:17:58] Speaker 02: And there's cases out there like Able that we've cited to in support of our disagreement. [00:18:02] Speaker 02: But the district court accepted that there was an I-200. [00:18:05] Speaker 02: District Court in writing about Section 0.111 noted that the I-200 is not addressed to the US Marshals. [00:18:12] Speaker 02: It's addressed to immigration officers. [00:18:13] Speaker 02: There was briefing on that. [00:18:16] Speaker 02: So I really think this ship has sailed in terms of a waiver doctrine in terms of whether or not we should be debating now whether or not there was an I-200. [00:18:23] Speaker 06: But I- When you're brief on this, you invoke the presumption of regularity. [00:18:28] Speaker 06: Yes. [00:18:29] Speaker 06: Nothing that you've just said, but just presumption. [00:18:35] Speaker 02: I mean, we did evoke the presumption of regularity. [00:18:38] Speaker 02: I think we also noted that there was a waiver issue below, that had it been raised below, that look, this document is missing from the record, it would have been fixed. [00:18:46] Speaker 02: It was never raised below. [00:18:47] Speaker 02: I can't speak to why. [00:18:49] Speaker 02: I wish I had more information on that myself. [00:18:51] Speaker 02: It was one of the first things I noticed about the case. [00:18:54] Speaker 06: Your point about the district court proceeding as though this were not an issue at all. [00:19:00] Speaker 02: Yes. [00:19:01] Speaker 02: I believe I did say that in the papers, that the district court [00:19:04] Speaker 02: proceeded as if it was not an issue. [00:19:05] Speaker 02: Because when we talk in the brief about section 0.111, I think we address the fact that the district court said that the I-200 is not addressed to the marshals. [00:19:16] Speaker 02: And the district court discussed the fact that it's not a true warrant, because it's an administrative warrant and not a judicial warrant. [00:19:21] Speaker 02: And then we cited ABLE, and we said that that's not correct, respectfully, to the district court. [00:19:27] Speaker 02: And so I think the issue, I think we did say below that the district court accepted that there was an I-200 in this case. [00:19:32] Speaker 03: Whether warranted or not, I have a question about the training. [00:19:37] Speaker 03: In your brief, you say nothing in the language of the regulation 287.5 purports to award exclusive authority over these arrested detentions to the listed agents and officers. [00:19:53] Speaker 03: Isn't that answered by the regulation 236.1B1, which says a warrant of arrest may be served only by those immigration officers listed in 287.5B? [00:20:10] Speaker 03: And that list does not include United States Marshals. [00:20:14] Speaker 02: Yeah. [00:20:15] Speaker 02: And I take your point. [00:20:16] Speaker 02: And I think the issue there is that at the time that the attorney general delegated [00:20:23] Speaker 02: delegated authority to the INS to issue regulations, like the regulation you're talking about in this case. [00:20:29] Speaker 02: He reserved for himself all his powers, and that's at 23 Fedreg 9117-9118. [00:20:36] Speaker 02: And that's back in 1958. [00:20:39] Speaker 02: And he noted that the delegation to the INS was made without divesting the attorney general. [00:20:44] Speaker 02: of any of his powers, privileges, or duties under the immigration and naturalization laws. [00:20:49] Speaker 02: And that includes the congressional, by congressional approval, the right to make delegations under Section 1103A4 and 28 USC 510 and USC 1101A18. [00:21:00] Speaker 02: And so I think if you took the argument regarding 236 to its logical conclusion, then the attorney general could never delegate authority to make the immigration arrests to anyone. [00:21:12] Speaker 02: And it would sort of nullify [00:21:14] Speaker 02: initial reservation of rights. [00:21:16] Speaker 03: Well, then I think your argument is that the orders [00:21:22] Speaker 03: uh 1996 and 2002 rendered the marshals for these purposes immigration officers and that would then empower them under these regulations to make the arrests but then you have the problem that they're not trained as immigration officers who do this must be trained well i think and i take that point and you know that's that's an argument my friends and they're different [00:21:46] Speaker 03: or which they're not authorized to do these activities, or they're denominated for limited purposes immigration officers, in which case one would think they have to act as immigration officers, just like the state officials have to act. [00:22:01] Speaker 02: Well, to the state official point, I think there are circumstances where they [00:22:06] Speaker 02: have to undergo the training and others where they don't. [00:22:07] Speaker 02: But to your point, I think our argument is that there's nothing inherently inconsistent about having regulations apply to people who are subject to those regulations. [00:22:17] Speaker 02: These are INS regulations. [00:22:19] Speaker 02: The marshals are not a part [00:22:20] Speaker 02: of the INS and that there's nothing inconsistent. [00:22:23] Speaker 03: But that's not a problem for you, not a benefit. [00:22:25] Speaker 03: So you effectively, let me step back and ask you, without grandfathering the authorities granted by the 1996 and 2002 orders of the attorney, attorneys general, how would the government go about accomplishing this task [00:22:50] Speaker 03: without posting an ICE officer at the Superior Court. [00:22:55] Speaker 03: What is the authority, if this were to happen today, as opposed to through pre-Homeland Security Act delegation, how would you set this up? [00:23:10] Speaker 02: I'm not sure I understand the question. [00:23:12] Speaker 02: So when ICE learned that an individual, and stop me if I'm not answering the question you're asking, [00:23:17] Speaker 02: When ICE learns that an individual is going to be released from custody, they would send somebody in a perfect world to the courthouse and wait for them. [00:23:26] Speaker 02: The reality of this world is that there's not enough ICE officers, particularly in certain districts more than others, to stand outside of courthouses all day, particularly with delays that might be occasioned by someone's trial calendar ran long or other realities of the courthouse. [00:23:42] Speaker 02: And then they would pick someone up. [00:23:43] Speaker 02: And the risk that you have [00:23:46] Speaker 03: No, I understand that. [00:23:47] Speaker 03: And that's true with state courts generally. [00:23:50] Speaker 03: I mean, DC is a special case, state, federal. [00:23:53] Speaker 03: But generally, it's true. [00:23:55] Speaker 03: And there is some provision in statute for working that through. [00:24:01] Speaker 03: So assume that we rule against you here. [00:24:05] Speaker 03: What next? [00:24:07] Speaker 02: I mean, I think if you ruled against us. [00:24:09] Speaker 03: The Attorney General issue a new order. [00:24:11] Speaker 03: Yeah, I mean. [00:24:11] Speaker 03: It would have to come from the Secretary of Homeland Security. [00:24:14] Speaker 03: I think it would have to be deputizing a marshal to, I mean. [00:24:17] Speaker 02: I think if you ruled against us, it would have to most likely, and I don't want to bind us, but I believe it would most likely have to come from the Secretary of Homeland Security. [00:24:24] Speaker 02: And I do think that could probably be fixed fairly simply with a delegation, which perhaps addresses some of the concerns raised here. [00:24:32] Speaker 06: Pardon me. [00:24:34] Speaker 06: the disagreement with you relates to the training, then why would it not be an option for the attorney general to provide the training or for someone to provide the training? [00:24:46] Speaker 02: It might be. [00:24:47] Speaker 02: I mean, those decisions would be above my pay grade, Judge Ginsburg. [00:24:51] Speaker 02: I suppose one option would be to provide the training if that were the issue. [00:24:54] Speaker 02: I suppose another option would be to correct or to modify the order, because as you know, the corporal had [00:25:00] Speaker 02: issues with Chenery, which I haven't touched upon and we don't think is an issue. [00:25:04] Speaker 02: But if that was something that this court found problematic, again, that would be something else that then would have to be addressed outside of just the training. [00:25:14] Speaker 02: So I mean, I do think that if you rule against us, it's not that the issue can't be fixed, but that the government has made a choice to defend what's taken place and that there's no necessity to [00:25:26] Speaker 02: do anything beyond stand behind the order that was issued. [00:25:30] Speaker 02: I was just going to say I did want to just say one last thing to Judge Pillard, which was that we view nothing inconsistent about having a delegation that can run parallel to regulation such that individuals can be designated by delegation who may not be susceptible or encumbered by or required to abide by training requirements and other individuals. [00:25:55] Speaker 02: who are designated by regulation might have to be. [00:25:58] Speaker 02: And again, we look to 1101A18. [00:26:00] Speaker 02: So I was just going to close the loop on that, but Judge Walker. [00:26:04] Speaker 03: I wanted to ask you about 1252F1, quickly, which you had mentioned, and we haven't really discussed it. [00:26:10] Speaker 03: The marshals are not mentioned in Section 1226 or 1231 or implementing regulations. [00:26:18] Speaker 03: And I just wonder what your theory is of how the injunction in this case enjoins or restrains [00:26:25] Speaker 03: operation of those statutes or any of the other statutes within the series that is referenced in 1252F1? [00:26:34] Speaker 02: Well, in Alman Gonzalez, the Supreme Court made clear that when the statute talks about the operation of the covered provisions, it's referring to not just the covered provisions themselves, but how the government chooses to carry them out. [00:26:47] Speaker 02: And so here, the covered provision that we would cite to would be Section 1226. [00:26:51] Speaker 02: 1226 references in its text on a warrant of the attorney general. [00:26:57] Speaker 02: The regulation makes clear that that warrant is the I-200. [00:27:02] Speaker 02: The way that ICE carries out and implements section 1226 is with reliance upon the US Marshals. [00:27:09] Speaker 02: And again, it's a necessary reliance based on just the reality of how many ICE officers there are and what's necessary to pick someone up. [00:27:17] Speaker 02: Not only that, you have concerns about safety. [00:27:19] Speaker 02: the difference between picking up an individual from the custody of a marshal. [00:27:24] Speaker 03: We have no reason to question the policy, the policy reasons. [00:27:28] Speaker 03: But so on your view of section 1252 after one, it bars class-wide injunctive relief or non-individual injunctive relief [00:27:40] Speaker 03: against any agency purporting to act pursuant to the specified INA provision. [00:27:46] Speaker 03: So if the National Park Service rangers began making immigration arrests and detentions and said, hey, no injunction against us, the district court on your theory would be precluded from entering an injunction to stop that on a non-individual basis. [00:28:07] Speaker 02: I think it would be a closer question if it was the National Park Service, if it was the EPA, if it was the post office. [00:28:13] Speaker 02: But that's not this case. [00:28:15] Speaker 02: I mean, in this case. [00:28:16] Speaker 03: So give me a principle why that would be different. [00:28:18] Speaker 02: I mean, as a principle, I think yes. [00:28:19] Speaker 02: If ICE were, for some strange reason, relying upon the New York Forest Service or the Postal Service to do this, and that was their policy, and they could articulate a reason why that could possibly make sense, then yes, 1252F would bar it as a principle. [00:28:34] Speaker 02: Do I think it presents [00:28:36] Speaker 02: More difficult questions? [00:28:37] Speaker 02: Yes, I think it presents more difficult questions. [00:28:40] Speaker 03: It's more difficult because it's ultra-virus, or it's some kind of exception to the remedial strip that 1252 F1. [00:28:48] Speaker 03: I mean, I'm really seeking your help here, because I read Alma and Gonzalez also to be very broad. [00:28:56] Speaker 03: And the colloquy between the majority and the dissent about the operation of the law, where the dissent says the operation of the law has to be like the law, not [00:29:06] Speaker 03: illegal, and the majority says no. [00:29:08] Speaker 03: Laws can be operated illegally just like vehicles can be, which to me would suggest that if the National Park Service is operating this statute, that a court could not enjoin it. [00:29:20] Speaker 03: But it feels like a pretty strong medicine. [00:29:25] Speaker 02: Yeah, I mean, as you said, the majority in Alma Gonzalez says that the prohibition from 1250 to F applies to [00:29:36] Speaker 02: Any action that requires the government to refrain from actions that in the government's view are allowed, and that means that if the government is misinterpreting and miss applying a statutory provision. [00:29:46] Speaker 02: It's still covered by the ambit of 1252F, and that means that it's not limited to laws as properly interpreted. [00:29:52] Speaker 02: And so based on the hard letter, the black letter, excuse me, of Alvin Gonzalez, I would say yes, there is an argument, a strong argument, probably the stronger argument to be made that the EPA or the Park Service could be protected by it if it is cooperating with ICE. [00:30:07] Speaker 02: under the covered provisions. [00:30:08] Speaker 02: I say it's a closer question, not because I am able to draw for you what the limiting principle is, but just because, you know, the gut reaction is on that seems a little weird. [00:30:17] Speaker 02: Why would the Park Service do that? [00:30:19] Speaker 02: That's why I say it's a closer question, but it's not this case. [00:30:21] Speaker 02: And so I don't think that we need to find what the ends of the limiting principle are. [00:30:25] Speaker 02: In this case, the cooperation, I think, does make sense between two different law enforcement agencies. [00:30:30] Speaker 02: 1226 talks about [00:30:32] Speaker 02: a warrant of the attorney general. [00:30:34] Speaker 02: This is how ICE implements section 1226. [00:30:37] Speaker 02: And the court's order enjoins it. [00:30:38] Speaker 03: Plaintiffs sought Baketer and declared her judgment as well. [00:30:42] Speaker 03: So if we were to agree with you on the bill with 152F1, the appropriate course would be to remand for the district court to consider whether there's remaining relief. [00:30:54] Speaker 02: I think I would disagree with that. [00:30:55] Speaker 02: First, I would say, and now I'm afraid that I'm wrong, [00:31:00] Speaker 02: I don't believe that the plaintiffs did seek vacater. [00:31:03] Speaker 02: I believe they also sought declaratory relief. [00:31:06] Speaker 02: I could be mistaken, but I don't recall there being vacater. [00:31:08] Speaker 02: But to speak to both points regardless, I would first say vacater is not really a remedy that makes sense in this case. [00:31:14] Speaker 02: Because when you talk about vacater, you're typically talking about a policy rulemaking or adjudicatory action. [00:31:20] Speaker 02: I mean, here the only thing that could possibly be vacated would be the 2002 and 1996 orders. [00:31:26] Speaker 02: And if that could be vacated through the action of a single member, [00:31:30] Speaker 02: of any individual person, it sort of raises the question of what purpose does class certification serve? [00:31:36] Speaker 02: And so our position would be that vacator is not available, and it also wouldn't be available for the reasons that were discussed, I believe, when the Solicitor General was arguing. [00:31:46] Speaker 02: What's that? [00:31:47] Speaker 04: What about declaratory relief? [00:31:49] Speaker 02: I think declaratory relief that functions like an injunction would still be barred by Section 1252. [00:31:53] Speaker 02: I think it's harder to draw where that line is. [00:31:56] Speaker 04: I mean, I think the government's position in the supplemental briefing in maybe Arizona v. Biden might be getting the state wrong there. [00:32:07] Speaker 04: But the one from the one that was a couple of weeks after Alamand and Gonzalez, I think they said 1252 F1 blocks out injunctions and it blocks out vacator, but it doesn't block out most declaratory relief. [00:32:24] Speaker 02: I think that's right that it doesn't block out most declaratory relief. [00:32:27] Speaker 02: I think the government's line, the Solicitor General's position, would be that there is probably room for certain declaratory judgments, and there probably isn't room for others if a declaratory judgment acts like an injunction. [00:32:41] Speaker 02: And I would just point the court to Hamama v. Aduchi, which is [00:32:49] Speaker 02: 912, F3, 869, which is a Sixth Circuit 2018 opinion by Judge Sutton. [00:32:57] Speaker 02: We don't have Supreme Court law on this with respect to the declaratory judgment. [00:33:01] Speaker 02: I think that there is a line to be drawn. [00:33:02] Speaker 02: I can't tell you where it is other than that. [00:33:05] Speaker 04: That very statement makes me think we would probably be best off letting the district court consider it before we decided ourselves. [00:33:13] Speaker 02: I mean, that would be one way that the court could proceed. [00:33:18] Speaker 02: But I would just note that in this case, it seems as though any declaratory judgment that would be issued would be really a distinction without a difference to some extent with an injunction. [00:33:28] Speaker 02: I mean, expecting that the government would comply with declaratory relief if the court found something to be [00:33:36] Speaker 02: And so we would ask that this court, if this court issues judgment on the merits, which we would also ask that the court do, there'd be no reason for that remand in the first place. [00:33:46] Speaker 04: Can I ask you to help me think through an argument we haven't, an issue we haven't talked about yet, which is if the plaintiffs are right on the merits and if they're also right about 1252 F1, [00:34:03] Speaker 04: You still have the argument that there's no irreparable harm here because I guess you're not irreparably harmed if you're detained by someone who's not allowed to detain you so long as you could be detained by someone who is allowed to detain you. [00:34:20] Speaker 04: And I am pretty skeptical of that and give you an opportunity to [00:34:28] Speaker 04: Address my skepticism, the hypothetical I'm thinking of that I have found helpful is imagine I have a mortgage with PNC, but Bank of America forecloses on my house. [00:34:41] Speaker 04: Seems like if they get an order to take my house, I've been pretty irreparably harmed, even if PNC would have been able to get an order to foreclose on my house. [00:34:56] Speaker 02: I take your point, and I admittedly haven't looked into any of what the foreclosure laws are in this country, nor am I familiar with that area of law. [00:35:02] Speaker 04: It's not a property law point I'm making. [00:35:04] Speaker 04: It's just a general principle that if somebody is harming me in a way that I'm not going to be able to get back my injury, that seems like irreparable harm, even if maybe someone else would have a right to inflict the same injury. [00:35:21] Speaker 02: I think with respect to deprivation of liberty, it's not. [00:35:24] Speaker 02: And I mean, obviously, I can see that I've looked at the cases we cite to our Section 1983 cases. [00:35:28] Speaker 02: But there are a plethora of sight of 1983 cases throughout the country, which come to the holding that if there is a cause for detention by one law enforcement agency and someone, for example, is not transferred on the day. [00:35:43] Speaker 04: What if a man had been kidnapped by a private citizen? [00:35:47] Speaker 04: Would that be irreparable injury? [00:35:49] Speaker 02: Well, I think that there'd be, I think that would certainly be a tougher case for me to argue. [00:35:53] Speaker 02: But I mean, it's not the case that's here. [00:35:55] Speaker 02: I mean, here we have two law enforcement agencies that were working together. [00:35:58] Speaker 02: I mean, you can look at the wants and holds cases throughout this country. [00:36:02] Speaker 02: And again, it's not an argument we preserve for appeal. [00:36:04] Speaker 02: But law enforcement agencies throughout the country, before they release them, will look up wants and holds and say, is there another agency that this person's wanted for? [00:36:14] Speaker 02: And then they may hold that person for an hour, two hours until [00:36:17] Speaker 02: there is coordination. [00:36:18] Speaker 02: So I don't think you would say that there's been a deprivation of liberty in those circumstances. [00:36:23] Speaker 02: And if you look at the 1983 law across the country, if you have somebody who is in custody in one state and there's extradition to another, and the extradition order is supposed to be executed by the 30th day, and for reasons that no one understands, the extradition order takes place on the 31st day. [00:36:39] Speaker 02: There have been 1983 actions for Fourth Amendment violations and for Fifth Amendment violations, and the courts have [00:36:47] Speaker 02: I've looked at the cases I've looked at. [00:36:48] Speaker 02: The courts have said, no, there's no deprivation of liberty in those circumstances, because whether you're being held by Connecticut or the neighboring state of New Jersey, you would have been held regardless. [00:36:56] Speaker 02: And I think that that is the closer analogy to this circumstance than the mortgage situation that you've noted. [00:37:01] Speaker 02: If there's no further questions, I had reserved three and a half minutes for rebuttal. [00:37:06] Speaker 02: If the court will allow me to have any rebuttal, I'd appreciate that. [00:37:10] Speaker 03: We will allow you to have rebuttal. [00:37:13] Speaker 03: And we'll hear now from Mr. [00:37:17] Speaker 03: Thank you, Anand? [00:37:17] Speaker 03: Go now. [00:37:18] Speaker 03: Go now? [00:37:19] Speaker 03: Go now. [00:37:38] Speaker 05: Good morning. [00:37:39] Speaker 05: May it please the court, Daniel Gounand on behalf of NS and the plaintiff class. [00:37:43] Speaker 05: I do want to address a couple issues about the whole warrantless, warranted arrest issue. [00:37:49] Speaker 05: But before that, I want to focus on the key reasons why the US Marshals Service do not have lawful authority to detain or arrest people based on civil immigration violations. [00:38:01] Speaker 05: The first is the Akarde principle, which is the principle that the government is bound by regulations. [00:38:08] Speaker 05: In this case, we have regulations that say only [00:38:11] Speaker 05: a specific list of designated immigration officers who have undergone required training are allowed to serve I-200 warrants or make warrantless arrests. [00:38:20] Speaker 05: It's undisputed that the marshals are excluded from those lists. [00:38:25] Speaker 05: Second, the termination of the marshal's delegated power when all of [00:38:32] Speaker 05: Immigration Enforcement Authority was transferred from the Attorney General of the Department of Justice to the Secretary of Homeland Security. [00:38:38] Speaker 05: And the Department of Homeland Security under Laurel Bay, that transfer terminated by operation of law any prior delegations by the Attorney General and certainly was superseded when the Secretary of Homeland Security issued a comprehensive set of regulations specifying exactly who could exercise these powers. [00:38:57] Speaker 05: And finally, the Chenrew Doctrine. [00:39:00] Speaker 05: which is the principle that the 2002 order that the marshals are relying on really can't be read to confer the specific power to make arrests for suspected civil immigration violations. [00:39:13] Speaker 03: So as I understand it... Because it doesn't recite the correct authorities, the 509-510 argument? [00:39:20] Speaker 05: That was good enough for the district court judge. [00:39:23] Speaker 05: We've kind of expanded on that on appeal and it's really [00:39:28] Speaker 05: The way I would say it is the fact that the 2002 order doesn't cite the INA's delegation authority is one piece of evidence that calls into doubt [00:39:38] Speaker 05: the whole notion that this was a delegation of authority to make routine civil immigration arrests. [00:39:43] Speaker 05: The order doesn't talk about serving a warrant. [00:39:46] Speaker 05: It doesn't talk about a warrantless arrest justified by likelihood of escape. [00:39:51] Speaker 05: It doesn't talk about probable cause. [00:39:54] Speaker 05: It says you may locate and apprehend someone who is in violation of the immigration laws. [00:39:59] Speaker 05: So if you contrast that language to the language that's in the regulations delegating arrest power to immigration officers, [00:40:07] Speaker 05: It seems like two different things. [00:40:10] Speaker 03: Well, the 2002 order specifically talks about immigration arrest, doesn't it? [00:40:17] Speaker 05: It talks about locating and apprehending people who are in violation of the immigration law, so not people for whom there's probable cause to believe that they are or reason to believe, as I believe the regulation puts it. [00:40:31] Speaker 05: So it's different language. [00:40:33] Speaker 05: And it doesn't say anything about warrants. [00:40:35] Speaker 05: It doesn't say anything about, in the absence of a warrant, there's a statutory requirement that the arrest be justified by likelihood of escape. [00:40:46] Speaker 05: It seems to apply to fugitives, which is why it uses the terms locate and apprehend, which are typically done in these fugitive apprehension programs. [00:40:55] Speaker 05: And the marshals have separate statutory authority [00:40:58] Speaker 05: to participate in fugitive apprehension programs as directed by the attorney general. [00:41:02] Speaker 05: Now, we know what the attorney general had in mind when he issued this 2002 order. [00:41:07] Speaker 05: We know from the accompanying memo that it was the NCERS program. [00:41:13] Speaker 03: Which wasn't about fugitives at all. [00:41:15] Speaker 05: It was not defined in terms of fugitives, but it was used as a fugitive apprehension program. [00:41:21] Speaker 05: I believe John Ashcroft gave congressional testimony where he talked about [00:41:24] Speaker 05: how they had captured hundreds of criminal and terrorist suspects pursuant to the NCEERS program. [00:41:31] Speaker 05: So I mean, the language of the order is admittedly not strictly limited to the NCEERS program, but that's what the attorney general had in mind. [00:41:40] Speaker 05: And we know, or at least we have strong reasons to believe, he didn't have in mind the practice that the marshals are doing in Superior Court, because the order doesn't talk about any of the things you would expect it to talk about. [00:41:51] Speaker 05: if he was trying to amend the regulations that say only these people can make these arrests, it would say, notwithstanding the authority delegated in HCFR 287.5C1, the following US Marshals and Deputy US Marshals are authorized to serve I-200 warrants. [00:42:19] Speaker 05: Now, he couldn't even delegate the warrantless arrest power, because by statute, that can only be delegated by regulation. [00:42:26] Speaker 04: Do you contest that there was an I-200 warrant for NS? [00:42:34] Speaker 05: I do not contest that there was an I-200 warrant for NS. [00:42:39] Speaker 05: I contest that it has legal significance for several reasons. [00:42:43] Speaker 05: Number one, we don't know when it was issued. [00:42:48] Speaker 05: We know, I'm sorry, we know it was issued on January 14th, 2020. [00:42:51] Speaker 05: We don't know what time it was issued. [00:42:53] Speaker 05: We don't know if it was issued before or after the Marshal's NS had been ordered released by the Superior Court and the Marshals detained him. [00:43:00] Speaker 05: We know it was served by an ICE officer in Lorton, Virginia later that day. [00:43:08] Speaker 05: So when it was issued, we simply don't know. [00:43:10] Speaker 05: I think we can infer from the record that the marshals, whether the warrant existed, the marshals were not aware of it because it's not in the certified administrative record prepared by the marshals. [00:43:22] Speaker 05: And their own policy says, I believe it's on J-45, that they will try and get the copy of the paperwork. [00:43:33] Speaker 05: So presumably if the warrants exists and they tried to get it, they would have had it at the administrative record. [00:43:38] Speaker 04: Let me ask you a question related to this. [00:43:40] Speaker 04: Sure. [00:43:41] Speaker 04: Does the district court's injunction cover class members for whom there are I-200 warrants that martial service was aware of, that were served properly, that the timing was all the T's dotted, all the T's crossed and all the I's dotted? [00:44:03] Speaker 04: Yes, it does. [00:44:06] Speaker 04: If we decide that 1252 F1 bars the class-wide injunction, would the district court be able to enter an injunction just to in S? [00:44:22] Speaker 04: And I think part of what I'm thinking about is moodness. [00:44:29] Speaker 05: I don't want to concede that would be moot, because I can imagine circumstances that wouldn't be moot. [00:44:33] Speaker 05: For example, imagine, I'm not saying this is true, but imagine there were a pending Superior Court warrant for NS such that it was foreseeable that he would be arraigned in Superior Court next week or something, that it might not be moot as to NS. [00:44:48] Speaker 05: Is NS in the country? [00:44:52] Speaker 05: I actually don't know the answer to that. [00:44:54] Speaker 05: I can tell you he was released by ICE at some point. [00:44:57] Speaker 05: But I don't know the status of his immigration matter. [00:45:00] Speaker 03: But the release was at a pretrial stage, was it not? [00:45:04] Speaker 03: So presumably he's due back. [00:45:06] Speaker 05: I believe his Superior Court case is terminated. [00:45:09] Speaker 03: Okay. [00:45:09] Speaker 03: But certainly at the time. [00:45:10] Speaker 03: At the time it was filed, he was in custody at the Superior Court. [00:45:14] Speaker 03: Yeah, and he did. [00:45:15] Speaker 03: And so he had standing because it was an ongoing detention and [00:45:21] Speaker 03: He had a likelihood of reappearing at the Superior Court because he was being prosecuted there. [00:45:30] Speaker 05: That's right. [00:45:30] Speaker 05: He did have future court appearances. [00:45:32] Speaker 05: I mean, I assume the court could take judicial notice of the Superior Court docket that shows he did, in fact, make subsequent court appearances. [00:45:38] Speaker 04: And just clear, I'm not so worried about whether [00:45:42] Speaker 04: There was a mutinous issue when the order was issued. [00:45:44] Speaker 04: I'm imagining, and I know you don't want us to vacate the injunction, but if we did, what would happen then? [00:45:51] Speaker 04: And I guess, why was it terminated? [00:45:55] Speaker 04: To the extent that this isn't the publicly available record, why was the Superior Court case terminated? [00:46:02] Speaker 04: My understanding is that he took a plea and served probation. [00:46:08] Speaker 04: And then you said you don't know if he's in the US. [00:46:10] Speaker 04: Do you have to be in contact with your client in order to be representing him here today? [00:46:16] Speaker 04: Well, I represent the class, so he's the name. [00:46:20] Speaker 04: You don't have to be in contact with the class representative. [00:46:23] Speaker 04: That's not a rhetorical question. [00:46:24] Speaker 04: I'm genuinely asking. [00:46:27] Speaker 05: To be honest, I don't know the answer to that. [00:46:29] Speaker 05: I personally have not been in contact with him. [00:46:31] Speaker 05: There are other people at the public defender service who work on this case who may have been in contact with him. [00:46:39] Speaker 04: If I may, I want to ask about the forfeiture issue on the 1252 F1 issue. [00:46:47] Speaker 04: Imagine that it is something that could be forfeited and imagine that [00:46:55] Speaker 04: it quite clearly was not preserved in a way, in an ideal way. [00:47:00] Speaker 04: But imagine I don't think it's waived. [00:47:02] Speaker 04: Imagine we're talking about forfeiture now. [00:47:05] Speaker 04: You know, there are exceptions to when we would enforce forfeiture. [00:47:09] Speaker 04: And the briefing covers a couple of them. [00:47:13] Speaker 04: I wonder if another [00:47:16] Speaker 04: reason to excuse forfeiture is a public safety reason. [00:47:21] Speaker 04: And I'm thinking if lives will be in danger because people with criminal records who the executive branch wishes to detain and has the resources to detain are not being detained because of a class-wide injunction. [00:47:41] Speaker 04: if that public safety factor should be a reason to excuse forfeiture. [00:47:48] Speaker 05: Well, the government hasn't made that argument, but to sort of address it, every member of our class is, I guess by definition, someone for whom a superior court judge has said, you are not a danger to the community. [00:48:01] Speaker 05: You can be safely released in the community pending whatever you're charged with, or other members of the class or people who use attorney's office has said, has looked at the [00:48:12] Speaker 05: you know, the arrest paperwork and said, we're not charging this person. [00:48:17] Speaker 05: This person shouldn't even be charged with a crime. [00:48:19] Speaker 05: So I don't think there's a strong, I don't think the record would support that kind of a public safety rationale. [00:48:26] Speaker 04: And I don't think it's, I think it's- I think that's a strong response to that. [00:48:31] Speaker 04: OK. [00:48:32] Speaker 04: But imagine that, I think, well, the executive thought this person was dangerous enough. [00:48:38] Speaker 04: I get that the Superior Court judge didn't. [00:48:42] Speaker 04: You know, imagine I think that there's some public safety. [00:48:46] Speaker 04: I imagine I think that there is some risk to public safety if this injunction goes forward. [00:48:52] Speaker 04: Is that a fair thing for the court to consider in whether to excuse forfeiture or is that just off the table in terms of factors we should consider? [00:49:00] Speaker 05: I think it would be too much to say it's off the table. [00:49:04] Speaker 05: I mean, I think probably the court can consider anything it wants to consider in deciding to, anything supported by the record, at least, in deciding to excuse a party's forfeiture. [00:49:14] Speaker 05: Of course, the injunction doesn't prevent anyone from being arrested or detained by ICE. [00:49:22] Speaker 05: It doesn't prevent that. [00:49:23] Speaker 05: And ICE, it doesn't even prevent the marshals from doing it under a certain set of circumstances. [00:49:28] Speaker 05: That could happen in the future. [00:49:30] Speaker 05: And I think the parties are basically in agreement that the difference between class-wide injunctive relief, which arguably is barred by 1252F1, and class-wide declaratory relief, which until today I think the government had conceded is not barred by 1252F1, and this Court has said is not barred by 1252F1. [00:49:53] Speaker 05: We all agree there isn't really much of a difference at the end of the day. [00:49:56] Speaker 05: So the public safety rationale doesn't come into play. [00:49:59] Speaker 05: The Marshals, I think, [00:50:01] Speaker 05: I think Ms. [00:50:02] Speaker 05: Fudum basically said they're going to comply with the declaratory judgment. [00:50:06] Speaker 05: So the policy is going to be the same. [00:50:08] Speaker 04: That is in a little bit of tension with what the Solicitor General said about declaratory relief in the supplemental brief that I mentioned earlier. [00:50:19] Speaker 04: And I take Ms. [00:50:22] Speaker 04: Fudum to speak for the Department of Justice today, but I also take the Solicitor General to speak for the Department of Justice. [00:50:29] Speaker 05: Sure. [00:50:30] Speaker 05: And I guess because this case only involves the marshal for the Superior Court or the District of Columbia, even if it were not a class-wide declaratory relief, even if it were just a declaration that [00:50:42] Speaker 05: detention of a person under these circumstances violates the law. [00:50:46] Speaker 05: I mean, presumably, the martial service would comply with that. [00:50:50] Speaker 05: But then that does run into the possible mootness issue. [00:50:52] Speaker 05: It does run into the possible mootness issue, which I think maybe what this is pointing to is all the reasons we've cited why the court, assuming it is forfeited rather than waived, [00:51:04] Speaker 05: shouldn't exercise a discretion to reach the issue. [00:51:06] Speaker 05: There are a number of legal issues that would arise only if the court chooses to excuse the forfeiture. [00:51:16] Speaker 05: The court would not need to reach those issues if the court holds the government to its forfeiture. [00:51:21] Speaker 05: We've cited the prejudice to the class. [00:51:26] Speaker 05: And it's not really within the policy of 1252-F1. [00:51:33] Speaker 05: I understand looking at legislative history to interpret what a statute means is controversial, but looking to what the statute's purpose is to decide if we should excuse a party's forfeiture and rely on that statute, I think does make sense. [00:51:46] Speaker 05: And the congressional history, the House report that's cited in the NIJC brief, amicus brief, makes it very clear that Congress didn't want to prevent [00:51:59] Speaker 05: litigation about the legality of arrest and detention. [00:52:02] Speaker 05: They left all these avenues open, including injunctions, just not class-wide injunctions. [00:52:08] Speaker 05: And the legislative history makes clear that they wanted these things to be litigated. [00:52:12] Speaker 05: They just didn't want one district court issuing a nationwide injunction that's going to stop the whole systemic system from operating [00:52:20] Speaker 05: while the litigation plays out at various levels. [00:52:23] Speaker 04: I don't think they love the idea of statewide injunction either. [00:52:27] Speaker 05: Well, this is one court. [00:52:29] Speaker 05: It doesn't even apply in all of the District of Columbia. [00:52:31] Speaker 05: It doesn't apply to the marshals in the federal district court. [00:52:36] Speaker 05: So it really, the only Robert Dixon, the named defendant, is the only person and his deputies are the only entity affected by this. [00:52:50] Speaker 05: Um, unless the court has any further questions, um, I see my time is expired. [00:52:59] Speaker 03: Yeah, I'm just, uh, making sure there aren't questions I wanted to ask you before you sit down. [00:53:09] Speaker 03: Thank you. [00:53:18] Speaker 02: Hello again. [00:53:20] Speaker 02: I'd like to start by just speaking for a moment about the forfeiture issues with respect to 1252f1 that were raised. [00:53:27] Speaker 02: 1252f is a jurisdictional statute. [00:53:31] Speaker 02: It divests the court jurisdiction or authority. [00:53:34] Speaker 02: And I think in their papers, the appellees drew a distinction, or perhaps confused, I should say, subject matter jurisdiction, which we don't contest with jurisdiction to issue a particular remedy. [00:53:46] Speaker 02: And it's clear from looking at the Texas v. Biden case that the statute does contain a jurisdictional divestment from the federal courts. [00:53:57] Speaker 02: And in fact, if you look at also, I believe there was a Fourth Circuit case that we cited in our papers, Miranda v. Garland, from 2022, finding that the government did not waive arguments under 1252 F-1 by failing to raise it in the district court. [00:54:12] Speaker 02: Because as a jurisdictional limitation, it's not subject [00:54:15] Speaker 02: to waiver. [00:54:16] Speaker 02: I would also note that at the time this case was litigated, before the district court by the US attorney's office, Elmin Gonzalez had not been decided yet. [00:54:24] Speaker 02: So the scope of 1252 and its particularly expansive scope had not been carved out and set forth with such specificity by the Supreme Court. [00:54:34] Speaker 02: I'd also like to note that 1252f1 doesn't say that if the class is a narrow one or it only affects a county or a particular [00:54:46] Speaker 02: geographical range of society, then the prohibition is somehow waived. [00:54:53] Speaker 02: 1252 speaks to class-wide injunctions, and this case clearly falls under that. [00:54:59] Speaker 02: I also wanted to respond to something that Mr. Gonen said about we can fairly infer that the marshals were not aware of this I-200. [00:55:07] Speaker 02: I just don't think that that's fair to say. [00:55:10] Speaker 02: I concede it was not part of the record, but I don't think we have any indication as to why it was not part of the record, what the marshals as an institution were aware of in 2020 or 2021. [00:55:23] Speaker 02: when this case was litigated, what some point of contact pulled out of a file versus what the marshal who executed this warrant at the time was aware of. [00:55:32] Speaker 02: I just don't think we can draw any conclusions from that. [00:55:34] Speaker 02: All we know is that it does exist right now. [00:55:36] Speaker 02: Mr. Gonin has conceded it existed. [00:55:38] Speaker 02: And at the district court, it was always litigated. [00:55:40] Speaker 02: And the last point I just wanted to make briefly was regarding Chenery because [00:55:46] Speaker 02: really didn't get to speak to it at all when I was up here before. [00:55:49] Speaker 02: But the rubric of Chenery doesn't require that every single statute that provides authority for a particular action be cited. [00:55:59] Speaker 02: So when you have a statute like 28 USC 510 and 8 USC 1103A4, which provide coextensive authority for delegation, there is no authority or precedent that would require the attorney general to have cited to both. [00:56:14] Speaker 02: I know the district court pointed to the Giordani case and said that there was a problem there with the fact that the attorney general cited to Section 510 with respect to a wiretapping delegation. [00:56:26] Speaker 02: There, the issue was that there was a competing statute which limited the delegatory authority for wiretapping. [00:56:32] Speaker 02: Here, Section 510 and 1103A4 are not in tension. [00:56:36] Speaker 02: And it would also just be our position that chenery doesn't apply in the first instance, because this is not a question of discretion, of policymaking, of fact-finding, of an area where the agency has sole expertise. [00:56:47] Speaker 02: This is simply a question, a legal question. [00:56:50] Speaker 02: Did the attorney general have authority to act? [00:56:52] Speaker 02: And for the reasons stated in the government's brief, the answer here is unequivocally yes. [00:56:57] Speaker 02: We would ask that this court overturn. [00:56:59] Speaker 06: I suppose it could be a policy decision not to invoke a particular authority. [00:57:09] Speaker 02: I suppose in circumstances, perhaps it could be. [00:57:13] Speaker 02: I know that there was the media case out of the circuit, which I believe you were on the panel for many, many years ago. [00:57:20] Speaker 02: where there was a discussion as to whether or not the Communications Act or the Reform Act was invoked because it had to do with jurisdiction of appellate issues. [00:57:29] Speaker 02: And perhaps in a case like that, there might be. [00:57:32] Speaker 02: But because depending on which authority was invoked, there was a different path to review. [00:57:38] Speaker 02: In this case, there'd be no imaginable policy reason to invoke 510 over section 1103 because it doesn't lead to a different place. [00:57:46] Speaker 02: There's no distinction in terms of [00:57:48] Speaker 02: review, they both provide the same level of delegatory authority. [00:57:53] Speaker 02: And focusing back again on the media case from this circuit, an agency's power is neither widened. [00:58:00] Speaker 06: 2002, that authority is picked up, correct? [00:58:07] Speaker 03: Say that again, I'm sorry. [00:58:08] Speaker 06: The authority, you say they're both delegatory authority is the same in two different sources. [00:58:14] Speaker 06: So it doesn't matter which one you see. [00:58:16] Speaker 06: But then in 2002, the second source is involved, isn't that correct? [00:58:22] Speaker 02: In 2002, they cite to 510. [00:58:27] Speaker 02: And in 1996, they have cited to the attorney general, the deputy attorney general. [00:58:31] Speaker 02: She cited to 1103. [00:58:35] Speaker 02: And so my position is that it doesn't matter. [00:58:37] Speaker 02: I mean, my position would be it doesn't matter if either one is invoked because the attorney general has inherent authority to make subdelegations and that the attorney general invoked nothing. [00:58:47] Speaker 02: Could have invoked nothing. [00:58:47] Speaker 02: I mean, the delegation starts with, the 2002 delegation starts with, by the inherent authority, by my inherent authority, including, and then he also lists, by my authority as attorney general. [00:58:58] Speaker 02: I don't want to be, I'm not quoting, but it's something to the effect of referencing the inherent authority. [00:59:03] Speaker 02: So our position would be, could have cited nothing because chennery doesn't apply. [00:59:07] Speaker 02: Whether or not the attorney general has that authority is a legal question that either he has it or he doesn't. [00:59:13] Speaker 02: And even if he did have to cite something, [00:59:15] Speaker 02: He could have cited either one. [00:59:16] Speaker 02: It doesn't make a difference. [00:59:18] Speaker 03: But the difference is that 509 and 510, which the 2002 order does expressly cite, are about attorney general authorities. [00:59:29] Speaker 03: And what is it, 1103? [00:59:30] Speaker 03: A4. [00:59:33] Speaker 03: about, you know, INS authorities, INA authorities. [00:59:38] Speaker 02: Yeah, I mean, I take your point that it's more specific, but it's more specific in a nature that there's no tension between the two. [00:59:44] Speaker 03: Well, there is in the sense that [00:59:47] Speaker 03: what kind of aid, you know, is the attorney general rendering the marshals immigration officers or is it saying as marshals doing the things that marshals do, you should help out? [00:59:58] Speaker 03: And I mean, there's a lot of there's a lot of difficulty in attempting to grandfather something that was, you know, purpose built for a very different problem. [01:00:09] Speaker 02: Well, I mean, I think we don't really know, you know, what [01:00:13] Speaker 02: I don't know that we can say that the language in the 2002 delegation is narrow enough to that. [01:00:18] Speaker 02: It's so narrow that it applies only to the NCRS. [01:00:21] Speaker 02: I don't think that's the case. [01:00:22] Speaker 02: It's broader language. [01:00:23] Speaker 02: I don't think that 1103A4 and 510 are in conflict is one more specific shore. [01:00:29] Speaker 03: I take your Giordano argument. [01:00:30] Speaker 03: I do think that that doesn't quite cut it. [01:00:33] Speaker 03: It's not a limitation that the invocation of the broader authority is somehow overbearing. [01:00:42] Speaker 02: I have nothing further. [01:00:44] Speaker 02: The court should overturn and vacate. [01:00:46] Speaker 03: Thank you. [01:00:47] Speaker 02: Thank you very much. [01:00:48] Speaker 03: Case is submitted.