[00:00:00] Speaker 00:
Case number 25-5152, ADAPT.

[00:00:04] Speaker 00:
Coalition for Humane Immigrant Rights, ADAPT.

[00:00:06] Speaker 00:
A balance versus United States Department of Homeland Security, ADAPT.

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

[00:00:11] Speaker 00:
LaPointe for the balance.

[00:00:12] Speaker 00:
Mr. Van Goswami for the police.

[00:00:15] Speaker 01:
Good morning, everybody.

[00:00:16] Speaker 01:
Good morning, Your Honors.

[00:00:17] Speaker 01:
May it please the court, Michelle LaPointe for the plaintiff's appellants.

[00:00:21] Speaker 01:
I'd like to reserve three minutes for rebuttal, please.

[00:00:24] Speaker 01:
For the past 80 years, the government has decided not to require universal non-citizen registration.

[00:00:33] Speaker 01:
And the government has never implemented universal registration combined with a carrier papers requirement.

[00:00:40] Speaker 01:
But that all changed on April 11th of this year when defendants began implementing the interim final rule that plaintiffs challenge in this case.

[00:00:50] Speaker 01:
By defendant's own admission, the IFR impacts at a minimum between 2.2 and 3.2 million people who for the first time are subject to registration and who face criminal prosecution if they fail to

[00:01:06] Speaker 05:
Apply to register temp down a little bit on that last comment about for the first time facing registration, because we have the Alien Registration Act of 1940 requiring all aliens in country over 30 days to register and be fingerprinted.

[00:01:22] Speaker 05:
Then we moved to the night in 1952.

[00:01:25] Speaker 05:
And then they added certain things like 14 years and older must apply and carry the papers if you're 18 and older.

[00:01:32] Speaker 05:
And then also the misdemeanor.

[00:01:34] Speaker 05:
Now, mind you, even though it said all aliens, there were categories in which people filled out the form and not necessarily everybody had a form that applied to them.

[00:01:46] Speaker 05:
And now we're moving to an interim final rule where they would consider it filling the gap.

[00:01:52] Speaker 05:
But you start with all were required to do so, even though some didn't have the form.

[00:01:57] Speaker 05:
So mind you, you might not have a form to do it, but it at least still said all are required to do it.

[00:02:02] Speaker 05:
So I guess I get to what the intent was.

[00:02:05] Speaker 01:
Right.

[00:02:06] Speaker 01:
Your honor, it is true that the 1940 statute established a requirement to apply for registration for noncitizens.

[00:02:16] Speaker 01:
However, the defendants through the decades have narrowed that requirement by not having a form or a method available for a large swath of noncitizens to register.

[00:02:30] Speaker 01:
So they made a policy decision to channel noncitizen registration

[00:02:34] Speaker 01:
into the immigration process.

[00:02:36] Speaker 01:
That means only if you were eligible for and applying for certain immigration relief or benefits did you have a method to register.

[00:02:45] Speaker 01:
Therefore, there was no way for large numbers of individuals who were undocumented and had no interaction with the immigration system before and were not eligible for any immigration relief to register.

[00:03:00] Speaker 05:
So you would take the position that if there was not that form or category for them, that even though it said all are required to register, they would not have been in peril of the law.

[00:03:10] Speaker 01:
Right, because there was no means for them to apply for registration.

[00:03:13] Speaker 01:
And so there would have been no way for them to be criminally liable for willful failure to register during those years until April 11th of this year.

[00:03:23] Speaker 01:
And defendants acknowledge as much in the IFR and the district court recognized as well that this was a big switch in policy.

[00:03:33] Speaker 01:
A big switcheroo is what the district court described it as.

[00:03:38] Speaker 01:
And that's because, as I said, for these decades, it was only through immigration processes that there was an available method of registration.

[00:03:49] Speaker 02:
Something is changing.

[00:03:50] Speaker 02:
No question about it.

[00:03:53] Speaker 02:
your opening described what's going on as the creation of a new rule or duty.

[00:04:01] Speaker 02:
I read the statute the way Judge Childs does, and if that's true, then it seems like a more fair account of what's happening is the change is that the government is ending a long policy of

[00:04:21] Speaker 02:
unlawfully not enforcing a legal duty that on its face covers all aliens.

[00:04:29] Speaker 01:
Judge Katz is even if that were the case, accepting that premise, the government still needed to go through notice and comment rulemaking in order to

[00:04:38] Speaker 01:
implement this IFR and it did not do so in this case and that alone do dooms the rule.

[00:04:44] Speaker 01:
Um this IFR imposes new substantive burdens that did not exist for the 2.2 to 3.2 million people who previously had no method to apply for registration.

[00:04:57] Speaker 01:
It encodes a substantive value judgment about

[00:05:00] Speaker 01:
what the government what DHS in this case thought was important in terms of how to register people who should be required to register what type of information should be required of them through the registration process and it trenches on substantial

[00:05:16] Speaker 01:
rights and interests of the individuals who are newly required to register because they previously had no method to do so.

[00:05:23] Speaker 01:
So under this this court's precedence, that was certainly enough to require notice and comment and to allow the public to weigh in on these important changes before the rule took effect.

[00:05:33] Speaker 01:
And that's setting aside the arbitrary and capricious nature of of the rule itself.

[00:05:39] Speaker 01:
But we think that at a minimum, they had to allow the public to weigh in on these substantial changes.

[00:05:45] Speaker 02:
But one point you have, which is a good one, is that the rule does expand the category of information that has to be provided, and that's new.

[00:05:58] Speaker 02:
But all of these requirements, the ones in the original statute and the expanded ones in the rule, are in the nature of

[00:06:12] Speaker 02:
The government is requiring a private party to give the government information in order to facilitate enforcement of other legal obligations, right?

[00:06:29] Speaker 02:
You can only stay in the country for X number of days.

[00:06:32] Speaker 02:
You have to comply with your visa, whatever it is.

[00:06:35] Speaker 02:
The information, the registration helps enforce that.

[00:06:39] Speaker 02:
Why isn't all of that, the new stuff and the old stuff, procedural?

[00:06:47] Speaker 02:
So you had to fill out a form, I assume, for oral argument.

[00:06:51] Speaker 02:
And you had to give us a bunch of personal information to facilitate.

[00:06:56] Speaker 02:
We can track you.

[00:06:57] Speaker 02:
If something happens in the morning, we can call you, whatever it is.

[00:07:01] Speaker 02:
It's something of that nature.

[00:07:04] Speaker 01:
Right.

[00:07:05] Speaker 01:
So I think it's important to zoom out a little bit and understand that the, again, the scope of individuals who are now required to register who previously didn't have a method to do so is so large that that is sort of in itself is enough to have required the public to comment.

[00:07:24] Speaker 01:
But I think that it's important to know that

[00:07:28] Speaker 01:
the government here, the defendants have said that this is a tool of immigration enforcement.

[00:07:34] Speaker 01:
So unlike the folks who previously had a method to register because they came through the visa process and the government ostensibly could have been tracking their compliance with exit requirements under those visas.

[00:07:46] Speaker 01:
Now we're talking about an entirely new swath of individuals who

[00:07:51] Speaker 02:
entered without inspection that's that's pretty explicit in order to facilitate enforcement but to me that tends to cut for procedural i mean if you're say you're on the front end applying for a visa and the government says here's all the information you have to give us when we consider your visa that sounds procedural to me

[00:08:15] Speaker 01:
I think the distinction is that these individuals who are newly impacted by the rule do not have any eligibility, have not applied for any immigration benefits, and so it is solely for the process of facilitating deportation or, as the defendants might say, self-deportation, which I think takes it outside the category of procedural.

[00:08:36] Speaker 01:
It is impacting

[00:08:37] Speaker 01:
fundamental rights including members of plaintiffs associations, First Amendment rights, their Fifth Amendment rights against self-incrimination because they're required to report on any criminal activity including uncharged criminal activity without a method to assert their Fifth Amendment rights and they're experiencing a chilling of speech because of

[00:08:58] Speaker 01:
of those requirements to report on their activities in the context of what's going on currently with the targeting of individuals including non-citizens for First Amendment protected activities.

[00:09:11] Speaker 04:
I'm a little confused.

[00:09:13] Speaker 04:
What speech is chilled?

[00:09:16] Speaker 01:
So, a number of the plaintiffs members have stated that they are engaged in political organizing activities on behalf of immigrants rights causes and they stated in their declarations that by having to disclose this through the new registration process, they will be chilled and continuing to assert those first amendment rights.

[00:09:37] Speaker 01:
particularly in the context of everything that has been happening in the targeting of non-citizens for their expressive activities.

[00:09:43] Speaker 01:
So it's kind of core.

[00:09:45] Speaker 04:
But is that a consequence?

[00:09:48] Speaker 04:
Let's divide the form into two things.

[00:09:51] Speaker 04:
Most of the information stored on there is already required by statute, including the list of activities.

[00:10:00] Speaker 04:
And then there's a couple of things, including

[00:10:04] Speaker 04:
Confess any crime you've ever committed that's been added.

[00:10:07] Speaker 04:
Put aside the addition.

[00:10:09] Speaker 04:
The requirement to disclose activity already exists in the statute.

[00:10:13] Speaker 04:
You do not challenge the constitutionality of the statute.

[00:10:16] Speaker ?:
Correct.

[00:10:17] Speaker 04:
So then how, if it's constitutional for the statute to require it and the form just says, you know, the form said, give us all the information the statute requires.

[00:10:27] Speaker 04:
Here's the statute.

[00:10:28] Speaker 04:
Would you have the same challenge?

[00:10:34] Speaker 01:
So that's correct that we are not challenging the constitutionality of the statute through this lawsuit.

[00:10:40] Speaker 01:
But by using this method of registration, the government made a policy choice to include all of these categories of inquiry.

[00:10:50] Speaker 04:
Can I go in a second?

[00:10:51] Speaker 04:
Again, let's focus only on things that the statute already requires.

[00:10:56] Speaker 04:
Now imagine this form said,

[00:10:59] Speaker 04:
Please give us all the information required by the statute, cites a statute, and then lists the excerpts from the statute, all the things that requires.

[00:11:09] Speaker 04:
You would have the exact same obligation to challenge or to list your activities.

[00:11:18] Speaker 04:
Right.

[00:11:18] Speaker 04:
Would that be, would you have the same injury?

[00:11:21] Speaker 04:
Would you be asserting the same injury that the form said, just give us what the statute requires?

[00:11:28] Speaker 01:
I think that it is the combination of what the regulation is.

[00:11:33] Speaker 04:
The answer to my question is no.

[00:11:35] Speaker 04:
It's that they require they ask you for what the statute requires and something else.

[00:11:42] Speaker 01:
Right.

[00:11:43] Speaker 01:
So it.

[00:11:45] Speaker 01:
It is by requiring people to report on those activities that the statute does list out that, as your honor says, include all the activities that you've been involved with within the context of what is going on currently with the targeting of non-citizens for their political speech and their First Amendment protected activity.

[00:12:07] Speaker 04:
OK, so if the problem isn't really

[00:12:10] Speaker 04:
the content of the form, put aside the addition, we're putting those on hold for now.

[00:12:17] Speaker 04:
So if we're just focused on what the statute requires, and this will say the form to the extent it just duplicates what the statute requires, you're saying what makes the rule unlawful is separate enforcement activities that the government is taking?

[00:12:37] Speaker 04:
I think that's part of it because we're not trying to understand arguments about your combination argument here.

[00:12:45] Speaker 04:
What else is it?

[00:12:46] Speaker 04:
I mean, I'm not quite sure how we can look at enforcement activities as a means of

[00:12:54] Speaker 04:
challenging a rule to the extent it duplicates statutory requirements.

[00:13:00] Speaker 04:
That's where I'm having trouble.

[00:13:01] Speaker 01:
What it speaks to is the cognizability of a First Amendment harm.

[00:13:05] Speaker 01:
So it is requiring them to report on it.

[00:13:08] Speaker 04:
The statute, okay, so if I understand your point right and tell me if I don't, it's that not challenging the statute, which says there's a lot of things, including all your activities, not challenging that.

[00:13:24] Speaker 04:
To the extent the form says the same things as the statute, we're not challenging that.

[00:13:31] Speaker 04:
You haven't brought a lawsuit against enforcement activities.

[00:13:34] Speaker 04:
It's violated the First Amendment or anything, so you're not challenging those.

[00:13:37] Speaker 04:
And the rule doesn't say anything about those enforcement activities out there.

[00:13:42] Speaker 04:
So what is your challenge?

[00:13:47] Speaker 04:
What is the rule doing to harm, say, these speech activities?

[00:13:54] Speaker 04:
What is the rule doing?

[00:13:57] Speaker 04:
Statute's not doing it.

[00:13:59] Speaker 04:
You're not challenging the statute.

[00:14:00] Speaker 04:
You're not challenging the enforcement activities.

[00:14:04] Speaker 04:
The rule's not adding anything at that point.

[00:14:08] Speaker 01:
The other thing that it is doing is it is explicitly a form or a process that will be used for immigration enforcement, as defendants have stated in the

[00:14:20] Speaker 01:
in the rule itself and in comments about the purpose of the rule.

[00:14:24] Speaker 04:
So unlike when this guy, I mean, sorry, explain to me the legal grounds on which we could say it's unlawful for the government to use the information.

[00:14:37] Speaker 04:
It's lawful for it to collect in an immigration context is unlawful than to use it in the immigration context.

[00:14:43] Speaker 04:
Sorry, they're collecting this.

[00:14:45] Speaker 04:
I mean, this is the statute is sort of part of the network of laws that we have regulating the conduct of people who are in the United States who are who are not US citizens or lawful residents, right?

[00:14:59] Speaker 04:
So people who are here, whether it's.

[00:15:01] Speaker 04:
Diplomats or people here on tourist visas or everything ranging from the tourist visa to people who have entered without documentation and have remained in the United States without lawful authority.

[00:15:13] Speaker 04:
All right, so.

[00:15:15] Speaker 04:
And your your concern is how they're using the information.

[00:15:20] Speaker 04:
That's that's what you're saying.

[00:15:23] Speaker 01:
We are not challenging how they use it, as Your Honor points out.

[00:15:26] Speaker 01:
However, in defining the cognizable harm of having to report on it, it is important to look at the context of what's going on and how they've been using this information.

[00:15:36] Speaker 04:
I'm trying to think how you can have a legal harm.

[00:15:38] Speaker 04:
It has to be a legally cognizable harm if you don't challenge any of the things, any of the actions that you say cause that harm.

[00:15:51] Speaker 04:
Do you have an example where

[00:15:53] Speaker 04:
Someone claimed an injury, but everything that caused the injury they agreed was perfectly lawful.

[00:16:01] Speaker 04:
So I challenge for these, I'm going to equate not challenges as lawful for these purposes.

[00:16:08] Speaker 01:
So I'd have to think a little bit more about the second part of your honor's question.

[00:16:12] Speaker 01:
But I think if we look at DC Circuit precedent on what constitutes chilling, a cognizable chilling effect on First Amendment rights, the standards set out by the chaplaincy of full gospel churches case, plaintiffs have to establish that they are or will be engaging in constitutionally protected behavior

[00:16:33] Speaker 01:
to demonstrate that the government activity would chill this conduct and multiple plaintiffs in that in this case have done so.

[00:16:42] Speaker 01:
Louisa from Churla, Gouvelia from Make the Road and a lot of other plaintiff members have talked about.

[00:16:50] Speaker 01:
They've stated specifically that they are engaging in constitutionally protected activity core First Amendment political activity and speech activity and that they are currently experiencing chilling based on the requirement to

[00:17:04] Speaker 01:
expose that conduct through this form, which is only for the purpose of immigration.

[00:17:08] Speaker 04:
It's not the question that's chilling them.

[00:17:10] Speaker 04:
It's not the question or the obligation to answer the question that's chilling them.

[00:17:15] Speaker 04:
It's not the obligation to answer this question on a form that's chilling them.

[00:17:19] Speaker 04:
Because you said just the form doing what the statute requires is not the source of chill.

[00:17:25] Speaker 04:
It sounds like it's the enforcement activities that are chilling them.

[00:17:30] Speaker 01:
Their position is that it is the obligation to disclose it through this form that, again, has no sort of ameliorative effects, is not simply a registered inventory like the statute was first conceived of, of non-citizens.

[00:17:45] Speaker 04:
But in the statute, I get that people talked about it that way, although sort of questionable.

[00:17:51] Speaker 04:
I mean, that's really what it was doing was collecting assets, information about assets.

[00:17:57] Speaker 04:
Isn't the statute that restricts the use of the information?

[00:18:04] Speaker 04:
That's correct.

[00:18:05] Speaker 04:
Is there another statute that restricts the use of information?

[00:18:09] Speaker 01:
The information that would be received through the registration process, not that I'm aware of.

[00:18:14] Speaker 01:
We do talk about other statutes in the immigration benefits context that

[00:18:20] Speaker 01:
have more restrictions um on the information that protects the confidentiality of information submitted and that's in for example VAWA or the U visa context but through the registration statute not that I know of.

[00:18:33] Speaker 02:
Why are we talking about shilling at all?

[00:18:38] Speaker 02:
in a case where you haven't raised a First Amendment claim.

[00:18:43] Speaker 02:
Chill is a theory of a First Amendment harm.

[00:18:47] Speaker 02:
Here, your primary contention is an APA question about whether this change is substantive or procedural, and why is chilling relevant to that?

[00:19:03] Speaker 01:
Your honor, it's correct that we have not brought a freestanding First Amendment claim in this case.

[00:19:09] Speaker 01:
We do talk about in our complaint the failure to consider First Amendment and Fifth Amendment issues as part of the arbitrary and capricious challenge in the APA.

[00:19:20] Speaker 01:
And there are other cases outside of the circuit that have considered in the irreparable harm context constitutional injuries.

[00:19:33] Speaker 01:
For example, the Mach v. Garland case from the Northern District of Texas, the Alabama versus US Secretary of Education case from the 11th Circuit.

[00:19:42] Speaker 01:
These are cases where constitutional harms were considered as part of the APA analysis, and we think that it is appropriate to do so here.

[00:19:50] Speaker 01:
There's certainly no prohibition on doing so.

[00:19:53] Speaker 01:
Defendants have not cited any cases where this is

[00:19:56] Speaker 01:
not permitted.

[00:19:58] Speaker 01:
And again, we just think in addition to the notice and comment issue, it goes to the arbitrary and capricious nature of this.

[00:20:06] Speaker 02:
Again, you have plausible theories for folding it into arbitrary and capricious and maybe irreparable harm.

[00:20:14] Speaker 02:
Just on the notice and comment, are you contending that

[00:20:20] Speaker 02:
the separate enforcement activity could make what would otherwise be a procedural requirement into a substantive one or or you're just talking about chill for those other issues.

[00:20:39] Speaker 01:
I think it goes to the notice and comment claim as well in the sense of

[00:20:45] Speaker 01:
making a substantive value judgment about the purpose of the registration system and the criteria for setting it up.

[00:20:53] Speaker 01:
Um and the fact that it trenches on individuals, first and fifth amendment rights and interests, which is part of the the test in this circuit about whether it's procedural or legislative rule, not just rights but also interests.

[00:21:06] Speaker 01:
So it goes to both the notice and comment claim and the arbitrary and capricious claim.

[00:21:11] Speaker 01:
Um I think

[00:21:14] Speaker 01:
We can.

[00:21:16] Speaker 05:
What's the extent of the post promulgation comments that are being offered here?

[00:21:21] Speaker 05:
Do you not feel like that's effective?

[00:21:23] Speaker 05:
Because we are in an interim rule as opposed to a final rule.

[00:21:27] Speaker 01:
Right.

[00:21:28] Speaker 01:
So the government.

[00:21:31] Speaker 01:
didn't give people the public the ability to comment, of course, before the rule went into effect.

[00:21:36] Speaker 01:
And so to the extent that comments were submitted, which are not part of the record here because it was a pre-enforcement challenge, none of those comments would have been considered as part of the agency's rulemaking.

[00:21:49] Speaker 01:
And they have not subsequently modified the interim rule in any way.

[00:21:54] Speaker 01:
So it is, as promulgated in the Federal Register,

[00:21:58] Speaker 01:
the language that ended up being the rule here.

[00:22:01] Speaker 05:
You've also asserted that the IFR, not the IMA, actually exposes the non-citizens to the criminal liability, but the criminal liability was in the IMA.

[00:22:11] Speaker 01:
That's correct.

[00:22:12] Speaker 01:
But it goes back to the lack of a means to it.

[00:22:15] Speaker 01:
And the statute says apply for registration, which I think is important here.

[00:22:20] Speaker 02:
And be fingerprinted.

[00:22:22] Speaker 01:
Correct.

[00:22:23] Speaker 01:
That is correct, your honor.

[00:22:24] Speaker 01:
But one cannot apply for registration if the government does not provide a means for doing so.

[00:22:30] Speaker 01:
The CFR, 8 CFR 264.1 talks about prescribed forms that count as registration documents or evidence of registration.

[00:22:40] Speaker 01:
So without a prescribed form to do so, these millions of people previously did not have a method to register.

[00:22:48] Speaker 01:
It wouldn't have been exposed to criminal.

[00:22:49] Speaker 05:
Give me a sense of what the commentary for noticing comment will be.

[00:22:53] Speaker 05:
In other words, as I started out in this hearing about that you had the registration requirements way back from the first act and then superseded by the INA and then we got executive order and then we now have this interim rule.

[00:23:09] Speaker 05:
So the opportunity or the principle to register has always been out there.

[00:23:16] Speaker 05:
So if you go to notice and comment, I don't see the policy of wanting that requirement to change.

[00:23:23] Speaker 05:
But what would your commentary be about it?

[00:23:25] Speaker 05:
Because it sounds to me like you're more focusing on I'm worried about these 2.2 or 2.3 million somehow getting caught up into all of this and potentially they're being enforcement against them.

[00:23:40] Speaker 05:
And that sounds like an educational campaign, you know, from one standpoint of, yes, the rule goes into effect, but we don't implement it or make it really effective for four months or so, so that there can be the widespread campaign by groups such as yours and others.

[00:23:57] Speaker 05:
And so what would noticing comment for you achieve?

[00:24:02] Speaker 01:
Your honor, it would achieve the purpose of notice and comment rulemaking under the APA, which is to allow the public to have offered their input on this policy choice here.

[00:24:15] Speaker 01:
I think this goes more to the arbitrary and capricious argument, but it's clear under this circuit's precedent that a change in policy, as fundamental as the one at issue here, requires the agency to acknowledge that the previous policy existed and they made a choice to change it.

[00:24:32] Speaker 01:
And then, of course, to engage in reasoned decision making to underlie the new rule.

[00:24:38] Speaker 01:
We can look at the American Wild Horse Preservation Campaign case.

[00:24:42] Speaker 01:
Physicians for social responsibility make clear that whether it's a formal policy or an informal policy, at a minimum, the agency had to acknowledge the immense change that it was undertaking here and provide a reasoned explanation for doing so.

[00:24:58] Speaker 01:
And here, the agency just completely glosses over that requirement.

[00:25:02] Speaker 01:
And again, just sort of goes back to the existence of the statute to justify this change.

[00:25:08] Speaker 01:
But that does not pass muster under this court's arbitrary and capricious precedence.

[00:25:14] Speaker 02:
On the question on the line between substance and procedure.

[00:25:19] Speaker 02:
It's not the clearest line ever, but we have some cases suggesting that one consideration at least in close cases.

[00:25:32] Speaker 02:
The question might turn on the extent of the burden.

[00:25:38] Speaker 02:
Government sites, JEM broadcasting case.

[00:25:42] Speaker 02:
It's an issue of degree.

[00:25:43] Speaker 02:
Are the burdens so grave as to warrant notice and comment rulemaking?

[00:25:49] Speaker 02:
Do you agree with that formulation?

[00:25:54] Speaker 01:
I agree that that is part of the test, certainly.

[00:25:58] Speaker 01:
But if you look at the cases where this court found that a rule was procedural, you'll find that they hew a lot closer to this idea of

[00:26:12] Speaker 01:
It only regulates the manner in which an individual presents himself to the agency certain things like deadlines to file.

[00:26:21] Speaker 02:
I'm going to ask you to assume 2 things that you disagree with, but stay with me.

[00:26:27] Speaker 02:
I suppose I think that.

[00:26:30] Speaker 02:
The kind of duty here, providing information to the government that helps the government enforce is in the gray area.

[00:26:40] Speaker 02:
It's maybe substantive, maybe procedural.

[00:26:42] Speaker 02:
It's an edge case.

[00:26:44] Speaker 02:
and put aside the question of arms from enforcement.

[00:26:51] Speaker 02:
So I'm thinking about, is this a substantial, serious, heavy burden, or is this kind of a record-keeping thing?

[00:27:03] Speaker 02:
And just looking at the form, how long do you think it would take for an average alien to fill out this form?

[00:27:14] Speaker 02:
And the hardest part of this would seem to be police and criminal record, and that's directly out of the statute.

[00:27:24] Speaker 02:
And the rest of it seems pretty pro forma.

[00:27:29] Speaker 01:
So a few things to consider there first as plaintiffs have pointed out this is an online only form available only in English and that in itself makes it inaccessible to a large number of people who can't access the internet or speak English.

[00:27:44] Speaker 01:
that.

[00:27:46] Speaker 01:
Um in addition though, looking at the burden on individuals to actually fill it out.

[00:27:51] Speaker 01:
Um there is and I don't have it at my fingertips but I believe it's about an hour that the government estimates in the IFR that it would take them in addition to the time to go provide biometrics um and the lost wages of course that would be entailed um with going through this process.

[00:28:08] Speaker 01:
So, that is

[00:28:12] Speaker 01:
I think if we're looking at

[00:28:21] Speaker 01:
are very far from this IFR in the sense that they actually talk to issues of agency efficiency.

[00:28:28] Speaker 01:
I don't hear the government saying here that, yes, they talk about law enforcement objectives and improving law enforcement outcomes.

[00:28:35] Speaker 01:
But it's unclear to me how the requirement of submission of a new form, an entirely new process for US citizenship and immigration services to undergo and to process is somehow increasing

[00:28:50] Speaker 01:
agency efficiency that's actually a new burden for the government in addition to the noncitizen.

[00:28:56] Speaker 01:
And that part is a bit unclear to me as well.

[00:29:00] Speaker 01:
And so it's just really, I understand the procedural legislative line is sometimes a bit, there are close calls.

[00:29:08] Speaker 01:
This is a bit blurry, but in this case, I think it is so far from the procedural side of the line that the agency absolutely had to allow the public to comment.

[00:29:20] Speaker 01:
Thank you.

[00:29:22] Speaker 04:
Can I ask a question about irreparable harm?

[00:29:25] Speaker 04:
Are you aware of any case

[00:29:28] Speaker 04:
Where we have issued or we have stayed before asks.

[00:29:34] Speaker 04:
Well, the district court, they should have stayed.

[00:29:36] Speaker 04:
They are not staying or joining.

[00:29:38] Speaker 04:
He's just on a notice and comment violation.

[00:29:43] Speaker 01:
I'm sorry, it was your honor's question whether a district court has.

[00:29:46] Speaker 04:
Whether this court has, is there any precedent from this court or another appeals court addressing whether a notice and comment violation, put aside your arbitrary conclusions challenge.

[00:29:58] Speaker 04:
I don't forget that you have that.

[00:29:59] Speaker 04:
I get that.

[00:30:00] Speaker 04:
But for your notice and comment argument, is that alone inflicts irreparable harm that would support a preliminary injunction to stay?

[00:30:11] Speaker 01:
Your honor, I'm looking.

[00:30:13] Speaker 01:
Back it.

[00:30:15] Speaker 01:
the notes.

[00:30:16] Speaker 01:
I don't think we had an example in the preliminary injunction or 705 stay context, although I'd have to confirm that.

[00:30:26] Speaker 01:
Of course, I'm thinking about Mendoza versus Perez, but that was not preliminary posture.

[00:30:35] Speaker 04:
Sure, sure.

[00:30:35] Speaker 04:
I mean, final really could happen there.

[00:30:37] Speaker 04:
I'm just talking about where you really have to have the irreparable harm.

[00:30:41] Speaker 04:
And I'm just wondering,

[00:30:43] Speaker 01:
I believe that we did not cite a case precisely in that posture, but I'm going to confirm that.

[00:30:58] Speaker 04:
It's only for arbitrary and capricious that happens, but yes, okay.

[00:31:02] Speaker 04:
And then I get, as the district court judge said here and Judge Katz noted, that this is a big change because there just hadn't been a registration opportunity until this forum, or for the most part hadn't been unless you were going through the immigration process.

[00:31:26] Speaker 04:
If when the statute was first enacted,

[00:31:30] Speaker 04:
this rule had been adopted.

[00:31:33] Speaker 04:
So you don't have that time gap.

[00:31:34] Speaker 04:
You don't have that lapse enforcement and then now new enforcement.

[00:31:42] Speaker 04:
Well, would you have been able to challenge it then?

[00:31:45] Speaker 04:
And put aside again, the provisions that go beyond what the statute requires.

[00:31:50] Speaker 01:
I think it would have been a much closer call.

[00:31:53] Speaker 01:
I think it's.

[00:31:56] Speaker 01:
What would have been the challenge?

[00:31:58] Speaker 01:
It would have depended on what the agency decided to put in the registration form and requirements.

[00:32:06] Speaker 04:
Let's assume, again, for purposes of my question, that it's only things that are listed in the statute.

[00:32:11] Speaker 04:
It's this form, but only things listed in the statute.

[00:32:14] Speaker 01:
In that case, we may not have been able to challenge

[00:32:28] Speaker 01:
the initial rule in your honor's formulation that emerged from the statute if it was precisely on all fours with what is in the statute.

[00:32:38] Speaker 01:
I think we'd still want to look at the test for procedural versus legislative rule.

[00:32:47] Speaker 01:
And in that case, I think there's a possibility that we would have still been able to challenge the rule as requiring notice and comment rulemaking.

[00:32:57] Speaker 01:
And of course, there may have been other arbitrary and capricious, et cetera.

[00:33:00] Speaker 01:
But it would have been a lot closer call.

[00:33:02] Speaker 04:
Would you have had irreparable injuries from the rule, assuming you were bringing notice and comment and arbitrary and capricious?

[00:33:10] Speaker 04:
I'm not quite sure what it would be.

[00:33:12] Speaker 04:
And again, I get here, there are things that go beyond the statute, and that's an important part of your arguments.

[00:33:17] Speaker 04:
But if we don't ask to the things that are covered by the statute.

[00:33:20] Speaker 01:
I think that also would have been a lot more difficult.

[00:33:26] Speaker 01:
Given the passage of time and the decision of the agency in this case to abandon a prior policy, that is part of the reason we're arguing.

[00:33:36] Speaker 04:
I get that that can be grounds for APA challenge.

[00:33:39] Speaker 04:
So what I'm struggling with is how

[00:33:42] Speaker 04:
Again, putting aside the questions that go beyond the statute, just the all crimes thing is big.

[00:33:48] Speaker 04:
If we take that off the table, I'm struggling to see what the irreparable harm would have been, why it changes based just on this time lapse.

[00:34:02] Speaker 04:
Do you have a reasonable reliance interests and a standing statutory obligation not being enforced or implemented?

[00:34:15] Speaker 04:
That's just the difficulty of this case.

[00:34:17] Speaker 04:
And the statute's been there a long time, as Judge Childs pointed out.

[00:34:20] Speaker 01:
Right.

[00:34:20] Speaker 01:
I think that's why we have to go back to the context of the way that the obligation has evolved over the years.

[00:34:27] Speaker 01:
And that ends up feeding into the notice and comment claim in addition to the arbitrary and capricious claim.

[00:34:35] Speaker 01:
And it speaks to irreparable injury because for the first time, and suddenly, a new obligation is being imposed.

[00:34:43] Speaker 01:
on these millions of individuals.

[00:34:45] Speaker 01:
And I think that is an important aspect that would not necessarily have arisen had they implemented interim final rule right after the passage of the statute itself.

[00:35:00] Speaker 05:
Just on the notice and comment portion, how do you feel that this does not fit the procedural exception to notice and comment when it's like the agency, organization, procedural practice in that regard?

[00:35:17] Speaker 01:
I think, Your Honor, it's because of the things we've been discussing that this is imposing substantive burdens that did not prior to the IFR exist, again, encode substantive values in terms of what the agency is seeking and why they decided to implement it at this point and so suddenly, and the substantial private rights or interests.

[00:35:40] Speaker 01:
I also wanted to point out that

[00:35:42] Speaker 01:
The large swath of individuals that are impacted here plays into the determination of it being a legislative and not a procedural rule as well.

[00:35:54] Speaker 01:
I think under this court's precedence, when we're talking about the impact on, for example, thousands of employers that this court talked about in Chamber of Commerce versus US Department of Labor, 174 F3rd, 206.

[00:36:09] Speaker 01:
We're talking about such a substantial public impact that it takes it over the line from procedural to legislative.

[00:36:18] Speaker 05:
You mentioned that they should mention why they entered this rule and the impact and why now?

[00:36:26] Speaker 05:
Why is all that important?

[00:36:29] Speaker 05:
Again, with the overarching that this is not a new law, so to speak, in terms of just non-citizens registering.

[00:36:37] Speaker 01:
Your honor, that speaks to the arbitrary and capricious analysis and the requirement therein that the agency has to acknowledge the change and not sort of gloss over it the way they've done with this IFR and to offer a reasoned explanation for it, just sort of fundamental principle.

[00:36:57] Speaker 05:
And you can see that as gap filling, meaning that these people now have a form that didn't otherwise fit into these other categories.

[00:37:05] Speaker 01:
Right, we think it absolutely required them to go through the analysis under State Farm to consider the alternatives, to take into consideration the costs and the benefits under Michigan versus EPA and their failure to do so here rendered it arbitrary and capricious.

[00:37:21] Speaker 05:
And are you aware of any of your clients actually having filled out the form and experienced any repercussions?

[00:37:29] Speaker 01:
Uh, we do not have any information about that.

[00:37:32] Speaker 01:
Currently it's not in the record.

[00:37:33] Speaker 01:
Um, this of course was a pre enforcement challenge.

[00:37:37] Speaker 01:
Um, so the obligation to fill out the form had not arisen by the time, um, the plaintiffs requested preliminary relief in this case.

[00:37:49] Speaker 04:
Thank you very much, counsel.

[00:37:50] Speaker 04:
Give me your time on rebuttal.

[00:37:52] Speaker 04:
Thank you.

[00:38:13] Speaker 03:
Morning, Arash.

[00:38:14] Speaker 03:
May it please the court?

[00:38:15] Speaker 03:
Arthik Vengaswamy on behalf of the United States.

[00:38:18] Speaker 03:
Your honors, I would like to just stress that, as we pointed out in our brief, the most important thing here is standard of review.

[00:38:26] Speaker 03:
And as under this court president, the issue is it's an abusive discretionary view over the district court's decision ultimately to find no irreparable harm.

[00:38:34] Speaker 03:
And as we have argued in our brief and as I'll continue our view here, the district court was correct in finding that there is no irreparable harm.

[00:38:41] Speaker 03:
In fact, as your honors have discussed previously with my colleague just now,

[00:38:46] Speaker 03:
It seems that they have essentially conceded that any true harms in this case arise out of the enforcement or the extraneous factors, the statute, the enforcement, all of those things are the harms from which they're actually complaining and the harms of which they're actually saying are irreparable.

[00:39:02] Speaker 03:
As a judgment, as you asked, there is no harm arising from the rule itself.

[00:39:07] Speaker 03:
And they're they have not been able to point to any harm.

[00:39:10] Speaker 04:
They answered that in response to my questions that assume the form only duplicates the questions of the statute.

[00:39:16] Speaker 04:
But this form goes beyond the questions in the statute, your honor.

[00:39:21] Speaker 04:
Well, particularly requiring people to report any crime ever committed anywhere in the world.

[00:39:32] Speaker 04:
whether they were, even if they weren't arrested or prosecuted or convicted.

[00:39:36] Speaker 04:
Nothing in the statute requires that much, does it?

[00:39:40] Speaker 03:
Your honor, respectfully, under 8 USC section 1304 little 5, the statute specifically both authorizes and directs secretary to ask four broad questions and such additional matters as may be prescribed.

[00:39:55] Speaker 03:
The statute.

[00:39:55] Speaker 04:
Sure.

[00:39:56] Speaker 04:
But the statute itself didn't make the judgments.

[00:39:58] Speaker 04:
I mean, those additional matters have to be within reasonable bounds under the APA and constitutional bounds.

[00:40:06] Speaker 04:
And so requiring everybody

[00:40:10] Speaker 04:
to confess to the government every crime they've ever committed.

[00:40:18] Speaker 03:
Your honor is correct that the the specific

[00:40:22] Speaker 03:
requirement that they confess to other crimes outside of this jurisdiction, not from which they're arrested, is not specifically enumerated in the statute.

[00:40:29] Speaker 03:
Right, that's the point.

[00:40:30] Speaker 03:
But the statute does encompass asking for the police and criminal record of the individual.

[00:40:35] Speaker 04:
I get that.

[00:40:36] Speaker 04:
But all crimes, never known by police, not in any criminal record, is a very different inquiry.

[00:40:45] Speaker 03:
Your Honor, respectfully, it's not that different.

[00:40:46] Speaker 04:
Crimes committed outside United States jurisdiction?

[00:40:49] Speaker 03:
Your Honor, respectfully, it's just an expansion of what's already in the statute and falls under both the catch-all and the police criminal record section.

[00:40:55] Speaker 04:
No, it is not.

[00:40:56] Speaker 04:
If I said, tell me every crime you have ever committed in your life.

[00:41:03] Speaker 04:
Now, I assume if I ask you if you have a criminal record, the answer is going to be no, because you're a member of the bar, and maybe even also for police record.

[00:41:09] Speaker 04:
I'm assuming it's sex, right?

[00:41:12] Speaker 04:
But if I say, have you ever committed any crime recognizing that speeding on the George Washington Parkway or the Baltimore Washington Parkway is a crime, not a civil infraction?

[00:41:23] Speaker 04:
Littering in a national park is a crime.

[00:41:28] Speaker 04:
You know, that's asking you to confess to things that no governmental authority is aware of.

[00:41:36] Speaker 04:
That is a big step, and it's also a big step closer to the Fifth Amendment than disclosing police and criminal records, which are matters of public record.

[00:41:47] Speaker 03:
Your honor, I agree with you that that would be asking this hypothetical me to confess, although I do believe that the bar application actually does ask you.

[00:41:56] Speaker 04:
I do take the fifth on the parkway sometimes.

[00:42:00] Speaker 03:
No, I do actually believe the bar applications ask you that.

[00:42:03] Speaker 03:
They ask you to confess anything that you've ever done, regardless of whether you've been convicted of it.

[00:42:06] Speaker 03:
I think that's actually a question, and it is a procedural question.

[00:42:09] Speaker 03:
Again, going to the collection of information, the collection of information that then might be used in enforcement.

[00:42:16] Speaker 03:
Even assuming, even agreeing with your honor, that that specific question... So I was just clarifying what her answer was though.

[00:42:22] Speaker 03:
It wasn't that you definitely challenged the... And even conceding that point though, the harm still comes from enforcement of the statute.

[00:42:28] Speaker 03:
The harm still arises out of the statute directly, not out of the rule and not out of the form.

[00:42:34] Speaker 03:
The form is not causing any harm here.

[00:42:35] Speaker 03:
The rule is not causing any harm.

[00:42:37] Speaker 04:
And so the district court's decision that... It's a little hard to separate the confess everything you've ever done and now we're going to...

[00:42:43] Speaker 04:
use the information on that form to go after you, either for deportation or criminal prosecution or both.

[00:42:49] Speaker 03:
Your Honor, if they hadn't made that argument in either this court or the court below, if they had pled that there was any reasonable or imminent danger of that specific question being the cause, but that's not what they're saying.

[00:43:00] Speaker 04:
They definitely challenge the basis for their Fifth Amendment irreparable harm claim.

[00:43:06] Speaker 03:
Your Honor, for the Fifth Amendment claim, but as Judge Katz has pointed out, they haven't actually made a constitutional claim.

[00:43:11] Speaker 04:
An APA claim includes contrary to law.

[00:43:14] Speaker 04:
That would include unconstitutional actions, would it not?

[00:43:17] Speaker 04:
It would, Your Honor, but a Fifth Amendment claim isn't only... It might even be arbitrary and capricious to ask people for information.

[00:43:23] Speaker 04:
I want to get ahead of ourselves.

[00:43:24] Speaker 04:
I'm not saying that itself would actually violate the Fifth Amendment, but it rubs awful a lot closer than anything in the statute does.

[00:43:33] Speaker 04:
And so, you know, to be clear where we are on this, but they can bring an APA challenge that says this is contrary to law.

[00:43:45] Speaker 04:
They could say constitutional avoidance through the statute is not including that in the authority.

[00:43:50] Speaker 04:
I can do that.

[00:43:51] Speaker 03:
They can bring the challenge.

[00:43:52] Speaker 03:
But I think the crux of the assessment at this point is the fact that this is a preliminary injunction that's up on appeal and not a 705.

[00:43:59] Speaker 03:
This is not a final rule.

[00:43:59] Speaker 03:
This is not a 705 challenge.

[00:44:01] Speaker 03:
This is a preliminary injunction challenge that was denied by the district court.

[00:44:06] Speaker 03:
And the district court determined, weighing law and fact, that there was no irreparable harm in this case.

[00:44:12] Speaker 03:
And there's no abuse of discretion in that finding.

[00:44:15] Speaker 04:
But even- Can we- I just have one more procedural- I'm sorry.

[00:44:18] Speaker ?:
Go ahead.

[00:44:19] Speaker 04:
a procedural question that I'm really kind of confused about what exactly is before us.

[00:44:25] Speaker 04:
So what's certainly before us is the district court's initial denial of preliminary injunction on the grounds of lack of standing.

[00:44:33] Speaker 04:
That's before us.

[00:44:35] Speaker 03:
Yes, you're right.

[00:44:36] Speaker 04:
Then the district court, on their application for injunction pending appeal, said, oh, no, not a standing problem, but an irreparable harm problem.

[00:44:50] Speaker 04:
In evaluating, under an abusive discretion, the denial of the preliminary injunction, can we consider the district court's analysis of irreparable harm, which was only on an injunction pending appeal, not on a separate request for relief in the parties?

[00:45:11] Speaker 03:
Yes, your honor.

[00:45:12] Speaker 03:
I agree with you that there is some confusion, given the fact that there are three separate appeals in this case.

[00:45:17] Speaker 03:
But ultimately, under the case law, this court can consider any of the rulings from the court below and all of the issues that are in the record.

[00:45:25] Speaker 03:
And so this court can and should consider both of the district court's decisions.

[00:45:29] Speaker 03:
And I think both parties.

[00:45:31] Speaker 04:
Is that true for preliminary injunction discretion, which as you said, is abuse or discretion analysis, that we can consider

[00:45:42] Speaker 04:
If the only viable notice of appeal before, which I thought was your argument, was the first notice of appeal, where the district court, that record, that preliminary injunction record coming up to us doesn't include the reparable harm analysis, we have to bring a different record up to us, a later record up to us to consider the district court's analysis of a reparable harm.

[00:46:04] Speaker 03:
In this case, no, Your Honor.

[00:46:05] Speaker 03:
If all of the procedural rules had been followed appropriately, the second notice of appeal would not have been a second notice of appeal.

[00:46:12] Speaker 03:
It would have been part of the record in this court because what should have happened is they should have, under federal rule of procedure eight, they should have then filed a motion for a stay in the district court pending this court's determination instead of being a second appeal.

[00:46:25] Speaker 03:
And so in that motion, that would have rolled up everything, including the district court's analysis

[00:46:30] Speaker 03:
I'm going to say the second go round for just as a shorthand, but ultimately all of the facts are in the record before this court.

[00:46:37] Speaker 03:
I mean, this court, I believe, should send a message that this sort of gamesmanship and multiple appeal filing is problematic.

[00:46:42] Speaker 04:
I don't think it's gamesmanship.

[00:46:43] Speaker 04:
To be clear, there's no reason to make an accusation like that.

[00:46:48] Speaker 04:
It seems to me it was just a very confusing procedural posture, and they were perhaps trying to protect their rights and to get all these things up of horse.

[00:46:57] Speaker 04:
And so they appealed what they could appeal.

[00:46:59] Speaker 04:
They didn't know the district court was going to switch horses.

[00:47:02] Speaker 03:
I think I certainly didn't mean to accuse him of anything more just to clean up the record and to make it clear.

[00:47:08] Speaker 04:
I believe this all should have been one appeal, but it all appeal before the district court rules on irreparable harm than it's not before us.

[00:47:17] Speaker 04:
What can we consider that post dates a preliminary injunction record?

[00:47:23] Speaker 03:
Your honor, if, again, if this had been sort of by the book, this would have been up on a federal rule of procedure eight motion.

[00:47:31] Speaker 04:
It did file rule eight motions and those have already been ruled on by this court.

[00:47:35] Speaker 04:
But I don't know that a rule eight motion allows, can we rely on things told to us for the first time in a rule eight motion to evaluate the district court's exercise of discretion on the record that was before the district court at the time the district court ruled?

[00:47:50] Speaker 04:
That would seem almost unfair to district courts.

[00:47:53] Speaker 03:
I believe you can, Your Honor, because again, it's all part of the record before this court.

[00:47:56] Speaker 03:
And this court has the discretion to consider anything that was properly presented to the district court in making its determination.

[00:48:01] Speaker 03:
But ultimately, even if we go back, Your Honor, as I was about to say, we should first take a look at the standing argument.

[00:48:08] Speaker 03:
And the district court, as a matter of law, was incorrect in this instance in finding that the plaintiffs had established standing in its second order.

[00:48:16] Speaker 03:
And if the district court was correct in its first finding, the plaintiffs did not have standing in this case.

[00:48:21] Speaker 03:
The plaintiff's associations don't have standing because none of the members have standing.

[00:48:26] Speaker 03:
None of the members have standing because they have not pled a cognizable Article 3 injury under the trans-union line of cases.

[00:48:32] Speaker 02:
What?

[00:48:33] Speaker 02:
Sorry, why are they not?

[00:48:35] Speaker 02:
Some of the members are aliens, unlawfully present in the U.S.

[00:48:41] Speaker 02:
They're the regulated, directly regulated parties.

[00:48:44] Speaker 03:
Your honor, they're not directly regulated parties because the harm in this case, as the trans union court pointed out, the harm has to be analogous to a common law or otherwise traditional harm.

[00:48:56] Speaker 03:
And in this case, the harm, if any, is the harm of being prosecuted by another statute.

[00:49:00] Speaker 02:
I mean, trans unions says that on

[00:49:05] Speaker 02:
when there's an intangible injury that might or might not be concrete for standing purposes.

[00:49:12] Speaker 02:
This may be insubstantial in the sense you can fill out the form in an hour, but it's very concrete.

[00:49:21] Speaker 02:
I mean, there are people who have to fill this thing out and they have to disclose more information than the statute requires.

[00:49:32] Speaker 02:
That seems concrete to me.

[00:49:34] Speaker 03:
Your honor, going back to the TransUnion and finding an analogy there, there were two separate sets of plaintiffs in the TransUnion case.

[00:49:40] Speaker 03:
One said who definitely had their privacy information released from the government to a third party.

[00:49:46] Speaker 03:
And they had a cognizable, tangible harm there versus the second group who did not have their information released and, in fact, had just given their information to the original recording body.

[00:49:58] Speaker 03:
And they did not have standing because there was no harm in that case to the

[00:50:02] Speaker 03:
intangible, non-concrete, non-analogous harm of simply, maybe your information is out there or maybe it's not, we don't know.

[00:50:09] Speaker 03:
In this case, the only requirement that's new is, okay, it's actually not even a new requirement.

[00:50:14] Speaker 03:
The only thing that's changed is there's now one more form in the menu of forms by which an alien can register with the government.

[00:50:21] Speaker 05:
There were, I believe before when you had the old laws there and you don't fit into a particular category and you're otherwise not in the immigration line, you know, with the courts, et cetera.

[00:50:33] Speaker 05:
What did that group of people do before in terms of often?

[00:50:39] Speaker 03:
Your honor, up until the rule was passed and the new form was created, that group of individuals, they had a duty to register, but they had no ability to register.

[00:50:49] Speaker 03:
And so they were essentially flying under the radar.

[00:50:52] Speaker 03:
So what's happening in this case is the government has taken section.

[00:50:56] Speaker 05:
The government have taken the position that

[00:50:58] Speaker 05:
If you caught somebody who didn't fit into one of those categories, you still say they have the duty, but then there's no enforcement because they don't have the ability to register because it wasn't a form that they need to fill out.

[00:51:09] Speaker 05:
So the government would have taken that position.

[00:51:11] Speaker 03:
That's exactly right.

[00:51:12] Speaker 03:
Under section 1306, the criminal penalties attached to the willful failure to register.

[00:51:17] Speaker 03:
And there can't be a willful failure to register if there's no method by which to register.

[00:51:22] Speaker 03:
But stepping, sorry.

[00:51:23] Speaker 05:
Okay, no, I was just going to next move on to the post promulgation comments.

[00:51:28] Speaker 05:
Is there an intention of a final rule?

[00:51:31] Speaker 03:
Your honor, I can't speak to that.

[00:51:32] Speaker 03:
I'm not entirely sure at this point, because we're up before the court on a pre-enforcement preliminary injunction challenge.

[00:51:37] Speaker 03:
The record here is only really what we're looking at.

[00:51:40] Speaker 05:
What's the purpose of the post comments?

[00:51:43] Speaker 03:
I believe in the Federal Register, the post comments include the requirement to qualify to the Paperwork Reduction Act and the necessity to submit data to the OMB, the Office of Management and Budget, regarding the costs of filling out the form and sort of the paperwork reduction aspects of the rule, not necessarily the application.

[00:52:03] Speaker 03:
creation of the form, because under 8 USC section 1304, the creation of the form is essentially a mandatory requirement imposed upon the government.

[00:52:12] Speaker 03:
The secretary is authorized and directed to prepare forms for registration.

[00:52:18] Speaker 05:
In light of several things going on with respect to immigration, your opposing counsel mentioned online form, English only.

[00:52:29] Speaker 05:
How do we expect to get all this information out to people for them to actually comply?

[00:52:34] Speaker 03:
Your honor, I agree with you that the fact that it's an online only form and it's English only, I know that my colleague on the other side has made a great point about that, but there are a number of forms that the U.S.

[00:52:44] Speaker 03:
government provides that are online only and English only.

[00:52:46] Speaker 03:
English is the language of the United States government at this point, and it's how all of our forms are created.

[00:52:52] Speaker 04:
And if the crux of- For all immigration forms?

[00:52:56] Speaker 03:
Your honor, I can't speak.

[00:52:58] Speaker 03:
I don't know if they're all English only.

[00:52:59] Speaker 03:
I do know that not every language is represented.

[00:53:02] Speaker 03:
I know there are several.

[00:53:03] Speaker 04:
That's not what I asked.

[00:53:05] Speaker 03:
I don't know.

[00:53:06] Speaker 04:
I asked are they English only?

[00:53:09] Speaker 03:
I don't know, your honor.

[00:53:10] Speaker 04:
Well, I mean, then I don't understand your point about we have lots of forms that are in English only.

[00:53:15] Speaker 04:
You're dealing with these are forms regulating a community where, by definition, a significant percentage will come in where English at best is not their native language and they may not speak it at all.

[00:53:29] Speaker 04:
And I think it's been

[00:53:31] Speaker 04:
long recognized and in the government's interest to make immigration forms available in at least the primary languages of those who tend to enter the United States.

[00:53:44] Speaker 03:
Has that changed?

[00:53:45] Speaker 03:
No, Your Honor.

[00:53:45] Speaker 03:
And it certainly may be the case that as this is only an interim rule, it may very well be the case that as this progresses, the government will provide translations and provide other opportunities.

[00:53:56] Speaker 03:
And I would also like to stress, Your Honor, that in this hypothetical

[00:54:00] Speaker 04:
I mean, that's why I'm curious.

[00:54:01] Speaker 04:
You don't have information for us.

[00:54:03] Speaker 04:
Just ask your client about what the status of this rule is.

[00:54:07] Speaker 04:
Because if you're in the process of saying, whoops, we didn't mean English only here.

[00:54:13] Speaker 04:
Whoops, we meant the criminal content of the disclosure of criminal activities to be identical to that in the statute.

[00:54:25] Speaker 04:
That lets us know what we have to decide and not decide here.

[00:54:29] Speaker 04:
So surely you can tell us, or the client agency will be willing to update us on the status of this rule.

[00:54:37] Speaker 03:
Your honor, certainly to the extent that it makes a difference in this court's determination, I'm happy to go back and ask my client that.

[00:54:42] Speaker 03:
And I apologize if I misspoke, indicating that there was a mistake in either going beyond the context of the statute or in saying this is English only.

[00:54:51] Speaker 03:
The bigger issue, your honor, is that the

[00:54:54] Speaker 03:
the creation of this form and the dissemination of that form as a method of complying with the INA and the statutes, the ultimately that is that in and of itself is not a farm and that in and of itself does not provide standing to the planets.

[00:55:11] Speaker 04:
It is a heart.

[00:55:13] Speaker 04:
Sorry, why isn't it a heart?

[00:55:16] Speaker ?:
If

[00:55:16] Speaker 04:
If police arrest somebody and they know that person until they don't understand English and they give them Miranda warnings in English only, would that be considered consistent with the Miranda requirement?

[00:55:32] Speaker 04:
uh your honor no i don't know so no no okay no okay they would not have been mirandized okay that's why police have it in different languages and now you're going to say we're going to impose an obligation on penalty of criminal prosecution um for you to fill out information you can't read and you can't understand your honor under this hypothetical you're going to tell me that's not a harm

[00:56:02] Speaker 03:
Your honor, under this hypothetical, using the Miranda analysis, I don't know this for a fact, your honor, I'm not a criminal attorney, but under that same analysis, they would not have willfully failed to register under 1306 because they don't, as you said, they can't understand the form.

[00:56:17] Speaker 04:
Oh, so the government's position is if they can't read the form, they don't have to register?

[00:56:21] Speaker 03:
Your honor, this is a question I haven't... You just said that to me.

[00:56:24] Speaker 03:
I'm saying in this hypothetical... It wouldn't be willful.

[00:56:26] Speaker 03:
Under this hypothetical under the Miranda analysis, right?

[00:56:28] Speaker 04:
So I'm asking.

[00:56:29] Speaker 04:
So it's the same.

[00:56:30] Speaker 04:
You just said it wouldn't be willful.

[00:56:32] Speaker 04:
There's no willfulness for Miranda.

[00:56:33] Speaker 04:
So I assumed you were transitioning to the willful requirement in the statute.

[00:56:37] Speaker 04:
I believe I believe that if there was an so you're not going to prosecute anybody who doesn't fill out this form because it's in English and they don't speak or understand English.

[00:56:46] Speaker 03:
It's not that, Your Honor.

[00:56:47] Speaker 03:
I think that the prosecution, again, is in a different statutory section than the requirement of the secretary.

[00:56:53] Speaker 04:
I don't know what that has to do with anything.

[00:56:56] Speaker 04:
They're irreparably injured if they face prosecution.

[00:56:59] Speaker 04:
That's a risk.

[00:57:00] Speaker 04:
People want to comply with the law.

[00:57:02] Speaker 04:
People don't want to be prosecuted.

[00:57:05] Speaker 04:
and they're left here in this rock hard place of I can't understand this form I don't know what to do with it but I'm told I have to do this and you just said well it won't be a problem because clearly it won't be willful non-compliance if they can't understand the form which is a very sensible position for the government to take I'm just making sure I understand it right your honor I'm not in a position to to speak to whether or not that is in fact

[00:57:30] Speaker 03:
the position that the government would take in enforcement past this point.

[00:57:34] Speaker 03:
But I do believe that the underlying issue is whether or not this rule as a procedural rule is somehow converted to a substantive rule merely because of the menu of language options.

[00:57:45] Speaker 03:
Presumably, any number of language options will be insufficient.

[00:57:49] Speaker 04:
It seems to be quite a conscious decision in the immigration context.

[00:57:55] Speaker 04:
where by practice, tradition, just realistic enforcement, the government uses multiple languages, including predominant languages.

[00:58:08] Speaker 04:
And then this rule comes along and says, no, in the immigration context where we are seeking information from people where we can probably take traditional notice of the fact that a large percentage will not speak English or will not speak it

[00:58:23] Speaker 04:
fluently enough to maybe understand exactly what they're being asked on a form.

[00:58:28] Speaker 04:
And the government has chosen to do it in English only, unlike many, many, if not all other immigration forms.

[00:58:39] Speaker 04:
And they're doing it when they know the population will be subject to deportation or criminal prosecution if they don't fill it out.

[00:58:46] Speaker 04:
And you want to tell me that putting people in that bind is just routine paperwork obligation as opposed to a substantive judgment by the government that increases the risk of harm to people in their efforts to comply.

[00:59:03] Speaker 03:
Your honor, I'm not saying that that is the case.

[00:59:05] Speaker 03:
I'm simply saying that the fact that the form is English only does not.

[00:59:08] Speaker 04:
What about it isn't the case?

[00:59:09] Speaker 04:
I just described to you the case.

[00:59:11] Speaker 04:
I described to you factually what has happened here.

[00:59:13] Speaker 04:
What about my description was inaccurate?

[00:59:17] Speaker 04:
I mean, I assume this was an intentional decision.

[00:59:18] Speaker 04:
It's a rule.

[00:59:19] Speaker 04:
I mean, you intend what you say in your rules.

[00:59:21] Speaker 03:
Yes, your honor.

[00:59:21] Speaker 03:
And again, I'm happy to provide more information about when and if additional translations are forthcoming.

[00:59:27] Speaker 03:
But the fact that the initial version of the form in the interim final rule happens to be English only does not by and in and of itself make this into a substantive value judgment or encoding anything that entrenches on rights.

[00:59:38] Speaker 03:
It's a it's a form that they're required to create.

[00:59:40] Speaker 03:
They're directed to create

[00:59:42] Speaker 03:
under section 1304 to make sure that all aliens have the ability to register as they're required to do the duty to register.

[00:59:50] Speaker 04:
The IRS said we're going to issue new tax codes.

[00:59:54] Speaker 04:
They're new tax forms.

[00:59:55] Speaker 04:
They're just forms for everyone to fill out for their taxes.

[00:59:59] Speaker 04:
We're not creating tax obligations.

[01:00:02] Speaker 04:
It's just new forms.

[01:00:04] Speaker 04:
In ancient biblical Greek.

[01:00:10] Speaker 04:
Notice and comment needed.

[01:00:15] Speaker 03:
That's a good question.

[01:00:21] Speaker 03:
No, because it's a procedural form.

[01:00:23] Speaker 04:
That's fantastic.

[01:00:25] Speaker 04:
Wow.

[01:00:26] Speaker 04:
Wow.

[01:00:27] Speaker 04:
We can all be criminally prosecuted for not filing our taxes unless we can find the five people in the United States who know how to speak ancient biblical Greek.

[01:00:38] Speaker 04:
And that's not a change in people's obligations.

[01:00:43] Speaker 04:
They're going to have to expend effort.

[01:00:45] Speaker 04:
that face consequences.

[01:00:46] Speaker 03:
Your honor, the hypothetical and the points you're making, I think, are important points to consider.

[01:00:52] Speaker 03:
But if we step back and look at the underlying issue in this case, is the creation of the 12th form in the menu of forms that an alien can use to register with the government, is the creation of the 12th one in that list

[01:01:07] Speaker 04:
This is one universal one for people who aren't seeking those other forms.

[01:01:10] Speaker 04:
They can't fill out those other forms.

[01:01:12] Speaker 04:
They can't fill out the visa form if they've been here already for a year.

[01:01:15] Speaker 04:
If they're not seeking asylum, they can't fill out that form.

[01:01:19] Speaker 04:
This is the only form that applies to millions and millions of people who haven't had a form for a long time.

[01:01:24] Speaker 03:
That's exactly right.

[01:01:25] Speaker 03:
There are millions of people that have been unable to comply with the statutory duty to apply for registration.

[01:01:30] Speaker 03:
And the government is taking steps to fill the gap, as Judge Child pointed out, to fill the gap

[01:01:36] Speaker 03:
between section 1304 and the duty to create forms to register and section 1302 the duty to register.

[01:01:43] Speaker 03:
There has been space in that arena up until this rule was created and the government has taken steps to close the daylight there and make sure that there's a one-to-one connection between its duty to create forms to enable everyone to register and the individual's duty to register.

[01:01:58] Speaker 05:
Did all the other forms that were identified with respect to the INA go through the notice and comment period?

[01:02:04] Speaker 03:
Your honor, as we pointed out in our brief, several of them do not.

[01:02:06] Speaker 03:
At least seven instances did not go through the noticing comment because they were merely procedural rules, as this one is.

[01:02:13] Speaker 03:
And going back to, I believe it was Judge Casas, your question about the impact on this.

[01:02:19] Speaker 03:
This court has previously held in the epic case, in the TSA epic case, that substantive impact

[01:02:27] Speaker 03:
The fact that it's impacting a million people does not make it automatically a substantive rule.

[01:02:32] Speaker 03:
What matters is whether it changes the rights of the individual with respect to the agency.

[01:02:36] Speaker 04:
Rights and interests, rights or interests.

[01:02:40] Speaker 03:
And the rights and interests of the individuals in this case are set forth in statute and have been for 80 years.

[01:02:46] Speaker 03:
They have a duty that the rights and interests of the individual is to register.

[01:02:51] Speaker 03:
to apply for registration.

[01:02:53] Speaker 03:
That's what the duty is.

[01:02:54] Speaker 03:
That has been the substantive right and interest for over 80 years.

[01:02:57] Speaker 03:
Nothing in this rule changes that.

[01:02:59] Speaker 02:
Does the government intend to promulgate a final rule?

[01:03:05] Speaker 03:
Your Honor, I assume so based on the text of the Federal Register and the fact that they are.

[01:03:10] Speaker 03:
Do we know anything about where that stands?

[01:03:13] Speaker 02:
I do not, Your Honor.

[01:03:16] Speaker 02:
Well, I guess maybe that moots out my next question, which was going to be, would this case mood out on promulgation of a final rule?

[01:03:33] Speaker 03:
At this point, if nothing changed, Your Honor, and the preliminary injunction remains denied and the district court's subsequent ruling to stay the district court matter pending this court's determination, if nothing else changed and there was a final rule, Your Honor, that might boot this out.

[01:03:49] Speaker 03:
But given that we're in a pre-enforcement preliminary injunction context, I can't, couldn't say for certain.

[01:03:54] Speaker 02:
One other question from me.

[01:03:59] Speaker 02:
The way this works,

[01:04:02] Speaker 02:
This new form was added to a list of forms in the regulation that will satisfy the general statutory obligation to register.

[01:04:16] Speaker 02:
Do these other forms include all of the questions on the newly promulgated one?

[01:04:28] Speaker 03:
To the best of my knowledge, your honor, they all include the first four questions that are set forth in 1304.

[01:04:34] Speaker 03:
And then I think there are variations between them based upon the intent of each of the form.

[01:04:39] Speaker 02:
Like, I suspect this form has.

[01:04:44] Speaker 02:
fair amount of content that falls within the statutorily required questions, but it also has a fair amount of new content that is perfectly fine under sub five of the statute, but is new content.

[01:05:03] Speaker 03:
Your honor, again, I agree that there are some questions on this form that have not been included in previous forms.

[01:05:12] Speaker 03:
There are other instances, as I said, we point out in our brief, there are at least seven other instances where the agencies have created new forms under the procedural rule.

[01:05:21] Speaker 03:
And those, I mean, those have different questions.

[01:05:23] Speaker 03:
The crew members land, the crewman's landing permit forms has different questions than the visa application form because the purpose of the forms and the information sought is different.

[01:05:32] Speaker 03:
And there are going to be some section, you know, subsection five variations there.

[01:05:36] Speaker 02:
And as to the new material,

[01:05:41] Speaker 02:
Your position is some combination of this is all procedural like providing information to the government to facilitate enforcement of other obligations and or not that burdensome.

[01:06:01] Speaker 03:
Yes, Your Honor, it's procedural or ministerial almost based on the specific language of 1304.

[01:06:07] Speaker 03:
It also falls under this court's precedent under interpretive rules, as in the US telecom case where- Well, it can't be interpretive because you just told me there's new content being required.

[01:06:18] Speaker 03:
Sorry, Your Honor, but in the telecom case, this court sort of said if it's just crisply delineating the lines, and that's sort of what's happening here.

[01:06:25] Speaker 02:
There just- Extent of burden helps resolve the edge cases is the point.

[01:06:30] Speaker 02:
Yes, Your Honor, that's exactly right.

[01:06:33] Speaker 04:
Any questions?

[01:06:34] Speaker 03:
Your honors, thank you for the time.

[01:06:35] Speaker 03:
I appreciate it.

[01:06:36] Speaker 04:
Thank you very much for your assistance.

[01:06:40] Speaker 04:
Okay, uh, there's the point and you asked for three minutes for a battle.

[01:06:47] Speaker 01:
Yes, thank you, your honors.

[01:06:49] Speaker 01:
Just wanted to start talking about the harm issues that came up in my colleagues, uh, section.

[01:06:57] Speaker 01:
We wanted to emphasize that the harm is not solely from the constitutional

[01:07:04] Speaker 01:
the injury to constitutional rights that we have.

[01:07:07] Speaker 01:
about extensively and I understand your honors have some questions about.

[01:07:10] Speaker 01:
We're also talking about the harm to members such as the UFW members who submitted declarations in this case that they simply cannot access these forms because they don't have smartphones or access to the internet and do not speak English and therefore cannot fill out the forms and go through the registration process placing them at direct risk of prosecution under the government scheme.

[01:07:36] Speaker 01:
We do not concede that the harm only arises, as my colleague on the other side said, from extraneous factors such as increased immigration enforcement.

[01:07:45] Speaker 01:
There are several other harms that we've identified in our papers.

[01:07:48] Speaker 01:
Second, as to the wide swath of information that the IFR is requiring beyond that which is required by the statute, as we've said previously, that implicates the need for notice and comment because it reflects a substantive value judgment that the agency is making here about.

[01:08:05] Speaker 01:
the content of what to include here.

[01:08:07] Speaker 01:
But it also speaks to the arbitrary and capricious nature of this role and the government's choice to make it only an English forum and online only forum and to require the disclosure of all this other information.

[01:08:19] Speaker 01:
So it goes to both aspects of the APA claim.

[01:08:22] Speaker 01:
The other rules that didn't go through notice and comment that my colleague mentioned

[01:08:27] Speaker 01:
As we point out in our reply brief, those are instances where the government was narrowing the burden on individuals, taking off certain requirements for fingerprinting and so forth.

[01:08:37] Speaker 01:
When they did add additional burdens, those rules did go through notice and comment rulemaking.

[01:08:43] Speaker 01:
Most famously and recently in the NSEERS program after 9-11 that required

[01:08:49] Speaker 01:
members of certain nationalities and predominantly Muslim countries to register with the government, which was subsequently rescinded.

[01:08:57] Speaker 01:
Both went through the imposition of the requirements, went through notice and comment rulemaking.

[01:09:03] Speaker 01:
Now, whether or not the government is ultimately going to promulgate a final rule, the reality is that they are prosecuting people now for failure to register, and that's all that needs to be known about the government's intentions here.

[01:09:16] Speaker 01:
In addition, we did ask for a 705 stay in addition to a preliminary injunction.

[01:09:21] Speaker 01:
I just wanted to clarify that.

[01:09:23] Speaker 01:
And my colleagues comment about the other forms not requiring all this information.

[01:09:30] Speaker 01:
Just look at one of the pieces of registration evidence, which is the notice to appear in immigration court.

[01:09:38] Speaker 01:
That is a form that the government itself issues and does not require disclosure of all this other additional information.

[01:09:45] Speaker 04:
And with that, I see my time is, you know, if most not all other immigration from their multiple languages.

[01:09:52] Speaker 01:
Your honor, I believe that some are, but not all of them, but those would be for.

[01:09:58] Speaker 01:
Immigration benefits rather than the imposition of criminal and civil liability as this form is here, which we believe speaks to the need to have it accessible in multiple languages.

[01:10:08] Speaker 05:
As to the issue about the criminal record in the INS under 8 USC 1304A4, it does state that you have to indicate your police and criminal record, if any, of such alien.

[01:10:25] Speaker 05:
So by that being vague, with respect to police or criminal record, that could include arrests.

[01:10:32] Speaker 05:
And it also doesn't limit itself to the United States.

[01:10:35] Speaker 05:
So, do you think that's different than what's on this form?

[01:10:38] Speaker 01:
We do in the sense that the new form requires any potential crime that was committed anywhere in the world that wasn't necessarily charged in any manner or prosecuted.

[01:10:49] Speaker 01:
And therefore, it goes far beyond what's required by the statute.

[01:10:53] Speaker 01:
Your honor, with that, we would respectfully request that the district court's order be reversed and a 705 state or preliminary injunction entered.

[01:11:02] Speaker 04:
Thank you, counsel.

[01:11:02] Speaker 04:
Mr. Venkateswamy, I think it would be helpful to the court if you could contact your client and give us an update on the status, if any, of the rule, with the potential of whether a final rule is expected or comments are expected.

[01:11:19] Speaker 03:
That's right.

[01:11:20] Speaker 03:
Just a status report on the current status.

[01:11:23] Speaker 04:
And future plans, yes, just to keep us updated.

[01:11:26] Speaker 04:
Thank you.

[01:11:28] Speaker 04:
All right.

[01:11:28] Speaker 04:
With that, the case is submitted.

[01:11:29] Speaker 04:
Thank you to both counsel.