Court filing
Hearing Transcript — Preliminary Injunction Motion, July 24, 2019 — East Bay Sanctuary v. Barr (N.D. Cal., 2019-07-24)
Filed July 25, 2019 in East Bay Sanctuary v. Barr; one of 69 filings from this case.
Record facts
| Court | U.S. District Court, Northern District of California |
|---|---|
| Filed | 2019-07-25 |
U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 45 · 2019-07-25 · Docket on CourtListener
Full text
Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
Pages 1 - 41
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE JON S. TIGAR
EAST BAY SANCTUARY COVENANT,
)
et al,
)
)
)
Plaintiffs, )
)
vs. ) No. C 19-4073 JST
)
WILLIAM BARR, Attorney General, in )
his official capacity, et al,
)
) San Francisco, California
Defendants. ) Wednesday
) July 24, 2019
___________________________________) 9:30 a.m.
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiffs: ACLU FOUNDATION
Immigrants' Rights Project
125 Broad Street
18th Floor
New York, New York 10004
BY: LEE GELERNT, ESQ.
SPENCER AMDUR, ESQ.
ACLU FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California 94111
BY: JULIE VEROFF, ESQ.
KATRINA EILAND, ESQ.
VASUDHA TALLA, ESQ.
ANGELICA SALCEDA, ESQ.
(APPEARANCES CONTINUED ON FOLLOWING PAGE)
Reported By: Debra L. Pas, CSR
Reported By: Debra L. Pas, CSR
Reported By: Debra L. Pas, CSR
Reported By: Debra L. Pas, CSR 11916
11916
11916
11916, , , , CRR, RMR, RPR
CRR, RMR, RPR
CRR, RMR, RPR
CRR, RMR, RPR
Official Reporter - US District Court
Computerized Transcription By Eclipse
Case 4:19-cv-04073-JST Document 45 Filed 07/25/19 Page 1 of 42
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
APPEARANCES: (CONTINUED)
For Plaintiffs: SOUTHERN POVERTY LAW CENTER
Immigrant Justice Project
1101 17th Street, NW
Suite 704
Washington, DC 20036
BY: MELISSA CROW, ESQ.
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway
Seventh Floor
New York, New York 10012
BY: BAHER AZMY, ESQ.
For Defendants U.S. DEPARTMENT of JUSTICE
Office of Immigration Litigation
Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
BY: SCOTT G. STEWART, ESQ.
UNITED STATES DEPARTMENT Of JUSTICE
Civil Division
Office of Immigration Litigation
450 5th Street, NW
Washington, DC 20530
BY: EREZ R. REUVENI, ESQ.
- - -
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
Wednesday - July 24, 2019
9:31 a.m.
P R O C E E D I N G S
---000---
THE CLERK: Now calling 19 CV 4073, East Bay
Sanctuary Covenant, et al, versus William Barr, et al.
Counsel, please state your appearances.
MR. STEWART: Good morning, Your Honor. Scott
Stewart on behalf of the United States. I'm joined by my
colleague Erez Reuveni.
THE COURT: Good morning, gentlemen.
MR. GELERNT: Good morning, Your Honor. Lee Gelernt
for plaintiffs from the ACLU.
THE COURT: Let me ask you to each come to the
microphone for two reasons.
First, it makes life easier for the court reporter and,
also, just to remind everyone that these proceedings are being
monitored by CourtCall so that members of the media who are not
able to join us this morning can listen in. And if you're not
at a microphone, then it's hard for the court reporter or the
CourtCall folks to hear you.
MR. GELERNT: I apologize, Your Honor.
Lee Gelernt from ACLU for plaintiffs.
MS. VEROFF: Good morning, Your Honor. Julie Veroff
from the ACLU for plaintiffs.
MS. EILAND: Good morning, Your Honor. Katrina
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
Eiland from ACLU for plaintiffs.
MR. AMDUR: Good morning. Spencer Amdur from the
ACLU for plaintiffs.
MS. CROW: Good morning, Your Honor. Melissa Crow
from the Southern Poverty Law Center for plaintiffs.
MR. AZMY: Good morning, Your Honor. Bahar Azmy,
A-Z-M-Y, from the Center for Constitutional Rights for
plaintiffs.
MS. TALLA: Good morning. Vasudha Talla, ACLU
Foundation of Northern California, for plaintiffs.
MS. SALCEDA: Good morning, Your Honor. Angelica
Salceda, ACLU Foundation of Northern California, for the
plaintiffs.
THE COURT: Good morning. Welcome to all of you.
The matter is on calendar this morning for oral argument
on plaintiffs' motion for a temporary restraining order. I
provided notice on the docket a few days ago when we received
the administrative record that I was considering converting
this motion into one for a preliminary injunction.
These lawyers have previously had occasion to argue
against each other in this courtroom, and so I welcome you
back.
Unlike the last time that you were arguing against each
other, I don't have that many questions, except the one I just
asked, which is: Is there any reason why I shouldn't convert
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
this into a preliminary injunction given the current state of
the record?
You should assume in your arguments this morning that I am
deeply familiar with your briefs and, also, have the
administrative record, which I read over the weekend.
As we did before, I will allocate 45 minutes to each side.
You can reserve time for a rebuttal argument by talking less
than 45 minutes the first time you're at the microphone, and
whatever time you've not used you will have available for
rebuttal.
As I did last time, I will allow each side to make
argument, and then I'll take a recess, and then I'll come back
and we'll hear rebuttal arguments. If both of you tell me at
the microphone that you don't intend to make a rebuttal
argument, then I suppose I'll just take a recess and that will
be that. But that's not what I'm expecting.
So with that, let me proceed. And I'll allow the moving
party to go first. Mr. Gelernt.
MR. GELERNT: Thank you, Your Honor.
Our principal claim, as the Court knows, is that, like the
first time around, this rule violates the asylum statute
Section 1158. We believe that Congress has spoken clearly to
the situation of an immigrant's, an asylum seeker's
relationship to a third country.
And I want to start with one framing question because
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
ultimately we see the Government's argument as consistent needs
-- inconsistent needs to be that there is exact language that
directly says the administration cannot do a particular thing.
We don't think that can possibly be the meaning of consistent.
There would be no reason for Congress to say if we say X, you
can't do Y.
Obviously, that seems to be what they are arguing because
I think it is very difficult to look at Section 1158 and think
Congress would have permitted this type of transit ban.
This transit ban will not only virtually eliminate asylum
at the southern border, but it will eviscerate the two
provisions in which Congress spoke clearly to transiting
through a third country. And that's, of course, the firm
resettlement provision and the third party provision. There
would be no reason for the administration to ever bother with a
third party agreement or to evaluate whether someone had been
firmly resettled.
And, indeed, as I'm sure Your Honor is aware from news
accounts, the administration has been trying to get a third
party agreement with Guatemala and Mexico, has been
unsuccessful, and now has decided they are going to do the ban
anyway in clear contravention of what Congress decided.
I mean, Congress looked at this issue and said: Well,
we're going to create two very narrow exceptions, and they are
going to both hinge on making sure that the asylum seeker
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
really has a chance and a safe place to have a full and fair
opportunity.
So firm resettlement could not be clearer. You must have
permanent rights in that country.
And, indeed, the regulation specifically addresses the
situation we have here, where it says if you transit through a
country and you're escaping and the only reason you're going
through that country is to get to another country, you haven't
settled down, then you may seek asylum. You're not firmly
resettled. You still may seek asylum in the United States.
And the Ninth Circuit in the cases we've spoke, we've cited has
addressed that very particularly.
So Congress is well aware that people would transit
through when they are fearful and get to another country.
THE COURT: I'm not sure I need to reach this
question, but let me ask you: Do you think that by providing
these two exceptions, the safe third country bar and the firm
resettlement bar, that Congress has in so many words occupied
the field so that there could never be -- the Attorney General
could never promulgate a regulation or a rule that addressed an
asylum applicant who had transited through a third country?
MR. GELERNT: Your Honor, I think that's an important
question, and thank you for that question.
Our position is that the Court does not need to go that
far in this case. I mean, I can't conceive of a rule that
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
would address transit and say mere transit through another
country might be okay, but I don't know that this Court needs
to say definitively there can never be some creative rule
dealing with transit that might be okay.
So we are really resting in this case on the fact that it
is a very clear conflict; that there is no safety built in;
there is no full and fair procedure. None of the sort of
formal agreement, firm resettlement.
Whether there is some conceivable way to --
THE COURT: Your argument is really much more about
the specific protections that Congress has built into these two
bars --
MR. GELERNT: That's right, Your Honor.
THE COURT: -- and whether or not those protections
are available in this particular rule.
MR. GELERNT: That's absolutely right, Your Honor.
I think if forced to answer definitively right now, I
would say it's probably unlikely that a mere transit rule could
survive, any type of mere transit rule, but certainly not this
one.
I think that Congress was well aware that people transit
through other counties. I mean, as Your Honor noted in the
first asylum ban, when you enter between ports, unless you're
Mexican, on land you've necessarily come through another
country.
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
So this is not an issue that has escaped Congress's
attention. I think they took pains to make sure that if we
were going to take that momentous decision to send someone to
another country to seek asylum, it would either be where that
other country has agreed, through a formal formal agreement,
yes, we will receive your asylum seekers, we will provide a
full and fair procedure, and it will be safe; or there has been
an individualized assessment: This person has permanent rights
in that country and, therefore, doesn't really need our
protection.
So that's our basic statutory argument. We think there is
a clear conflict with 1158. And I think your question is the
right one about whether you need to rule in this case that
under no conceivable possibility could anybody create a transit
rule. I don't think Your Honor would need to go that far.
I want to return to our arbitrary and capricious claim.
As Your Honor knows, we didn't make that the first time around,
although Judge Bybee in his Ninth Circuit opinion did comment
that he thought the first asylum ban was arbitrary and
capricious. We think this is a clear-cut case where -- finding
that their rules are arbitrary and capricious.
As Your Honor knows, there are two basic bedrock
administrative law principles --
THE COURT: I'm going to ask you to slow down a bit
for the sake of the court reporter.
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
MR. GELERNT: Yes. Yes. I'm sorry, Your Honor.
Sorry.
On our arbitrary and capricious claim the two basic
administrative rules are that the administration must, must --
and this is a real decision in the Ninth Circuit, the Butte
County and Supreme Court decisions going back -- must address
contrary evidence in the rule and explain why that doesn't
conflict with the rule they have created. Nowhere in the rule
are they addressing the mountainous counter evidence.
And that's -- you can look at the reports from Human
Rights First, from Amnesty International. I think the UNHCR
report is particularly useful. And the reports go on and on
explaining the dangers in Mexico and Guatemala; the fact that
although Mexico was attempting to try and build an asylum
system that works, it doesn't right now; that Guatemala's
certainly doesn't.
And so for that reason --
THE COURT: But the administrative record about the
dangers faced by persons transiting through Mexico and the
inadequacy of the asylum system there, in the Government's
administrative record, is stunning.
MR. GELERNT: Is, I'm sorry?
THE COURT: Stunning. Stunning.
This is what they call a softball question in our trade.
(Laughter.)
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
MR. GELERNT: That's why I just wanted to make sure I
heard what you said.
No, I think that's right, Your Honor. I mean, obviously,
we agree with that; that there is a -- and, you know, in
fairness to the Government, we think that was fair of them to
put in that because, I mean, that's what any expert would tell
you; that they put that in. It shows how dangerous it is and,
yet, they concluded under the rule that mere transit is okay
because if people don't apply for asylum in those countries, it
must be because they don't really have an urgent need for
asylum in their own record.
So we are not asking you to go outside the record. Your
Honor has already made clear from the first case that you would
prefer to deal with these claims within the four corners of the
record and that's all we're asking for you now. We have
declarations, but we think you can do it just from the four
corners of the record.
And so what we are saying is, A, they didn't address the
counter evidence. That's dispositive right there. It's always
arbitrary and capricious not to address the counter evidence.
But even if they address the counter evidence, as Your Honor
pointed out, we don't see how anybody could read this record
and conclude, okay, well, those are safe countries that are
going to give you a fair and full asylum procedure. Therefore,
it must be that if someone didn't apply for asylum, they must
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
not have an urgent need.
So that would be our arbitrary and capricious claim.
On the notice and comment, I don't want to dwell on it too
long. I think the foreign affairs claim is the same as the
first time around, which Your Honor felt it was not sufficient.
The standard the Ninth Circuit has set out of absolutely
adverse concrete consequences is not met here and the Ninth
Circuit had affirmed that.
I do want to address the good cause, because on remand
from the Ninth Circuit --
THE COURT: You have to slow down again.
MR. GELERNT: I'm sorry, Your Honor. I apologize.
On the good cause on remand from the Ninth Circuit, Your
Honor did find good cause based on an article that smugglers
had been communicating with migrants and that could cause a
surge. We believe that if that -- that is the only evidence in
the administrative record again. We believe that the
Government cannot really rely on that. And I think Your Honor
noted that it was a fairly thin piece, but it was sufficient at
the time to continue in perpetuity to rely on that article.
And, indeed, the rule cites Your Honor's decision a couple of
times.
And so I think at this point what the Government's
argument basically boils down to Your Honor found that that
article was sufficient for good cause, so here on in we can
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
always say there is going to be good cause. We're going to
skip notice and comment and we are going to simply say no
notice and comment because there could be a surge.
We don't think any -- that article now is sufficient at
this point. At this point the Government should have been able
to come up with more to document the surge.
There have been repeated immigration policies. In fact,
there is a patchwork now. So if there were surges, the
Government should be able to document it. Especially when this
Court enjoined the last policy, people would have surged
knowing that it could have been overturned on appeal.
I think at this point, given how many immigration policies
there are -- I mean, it's hard for us to keep track -- it's
very difficult, I think, to say everyone overseas will react
immediately to each change in each policy. At this point if
all the Government has is that one article, we don't think that
that -- in this case that would satisfy good cause.
Unless the Court has questions about irreparable harm or
the nationwide injunction, I would just say that it's exactly
the same --
THE COURT: I was going to say, I don't. I mean, I
think that Judge Bybee's opinion for the motions panel -- of
all of the things from the first East Bay Sanctuary case that
were addressed either in my prior orders or more particularly
in Judge Bybee's order, that one seems to me to be the
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
absolutely closest fit.
MR. GELERNT: Right. So I will not address that
unless the Court has questions.
So I would like to just, if that's okay with the Court,
reserve the remainder of my time.
THE COURT: You're welcome to reserve as much as you
like. It looks like you have about 34 minutes left.
MR. GELERNT: Okay, very good. Unless the Court has
questions, I'll sit down then.
THE COURT: Very good.
MR. GELERNT: Thank you, Your Honor.
THE COURT: Good morning Mr. Stewart.
MR. STEWART: Good morning, Your Honor.
May it please the Court. This rule is lawful and it is an
appropriately issued interim final rule.
I'd like to note, Your Honor, to bring to the Court's
attention, that this morning Judge Kelly, in the District of
Columbia, denied a TRO in a very similar case challenging the
same rule by two organizational plaintiffs. Judge Kelly rested
that ruling on an absence of showing of irreparable harm. He
has asked the parties to move forward with a preliminary
injunction proposal scheduled there.
He also offered preliminary thoughts in which he -- and
there is -- we asked for an expedited transcript. This
happened at 10:00 a.m. eastern this morning, Your Honor. I
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
don't have that yet, but I wanted to signal to you that he did
provide preliminary thoughts on the merits and -- again,
preliminary thoughts. And I want to be careful about that,
particularly because I don't have a transcript. It was an oral
ruling where he expressed strong doubts about the same
statutory authority type arguments here and also suggested --
(Interruption in the proceedings.)
THE COURT: Hold on just a moment. A member of the
public has just hissed.
Let me just say something. This is a court of law in
which we respectfully consider all the arguments made by
anybody before the Court, and the dignity of the court is one
of the things that gives it its authority.
And so if you're here as a member of the public to observe
these proceedings, I welcome you. These proceedings this
morning are important to the country. This courtroom belongs
to all of you, all of us. It belongs to all of us.
But I have to ask if you're here, that you respect the
dignity of the proceedings and the dignity of the person making
this argument and that you respect my colleague, Judge Kelly,
in Washington D.C., who I'm sure gave this matter just as much
thought as I have, and that we not hiss when people are making
their arguments. Thank you.
Mr. Stewart, I apologize for the interruption.
MR. STEWART: I appreciate it, Your Honor. Thank you
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Official Reporter - U.S. District Court - San Francisco
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very much.
He saw the notice and comment issue as a closer call, Your
Honor, but did signal that he was inclined to find the good
cause exception satisfied. Finally, he saw that the equities
weighed against a TRO there.
So I flag those issues. I think I'll come back to them
maybe a little later on on the relief question.
THE COURT: Let me say a little something about Judge
Kelly, because he posted on the docket of his case last night
an indication that he would be providing this ruling at 10:00
a.m. this morning, which is 7:00 a.m. our time.
And so I knew, number one, that the ruling was
forthcoming. And I also knew that because he had chosen to
give it in open court, it was unlikely that I would have the
benefit of much of his reasoning even if I knew, as I now do
and as you have said, what the result of his order was.
When I conducted a scheduling call with plaintiffs and the
Government last Thursday morning, I suggested that we hold this
hearing on Tuesday, which was yesterday, would have been
yesterday. I set the hearing today instead at the Government's
request because Mr. Reuveni, who is sitting next to you at
counsel table, represented that you had another hearing to
argue yesterday and I wanted to be respectful of the
Government's choice of counsel.
Had we held this hearing yesterday, as I had suggested, I
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Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
would already have issued a ruling by now. In that
circumstance I would not have expected Judge Kelly simply to
terminate his consideration of the Washington D.C. case. I
would have expected him to rule on the motion before him.
My ruling is not binding on him, just as his ruling is not
binding on me. I would have expected him to rule on the motion
before him and to allow a higher court to resolve any conflict,
if there was one, which is the course of action that the
Government essentially suggests at the very end of its
opposition brief in this case.
And now that the shoe is on the other foot, I intend to
follow the same course that I just outlined.
MR. STEWART: Correct, Your Honor.
And I made the point to Judge Kelly. I asked that he
issue a ruling that was in keeping with and with due respect
for Your Honor's own consideration of the merits here. He
asked me to pin down what I meant by that, and I explained,
look, it's really a question of scope of relief, if he were to
get to a point of issuing relief. I said both judges hearing
these cases, you know, should be able to consider and
meaningfully rule on the issue.
So that's what we were saying, Your Honor.
THE COURT: And Judge Kelly has the benefit of the
same luxury I do, which is we have the appellate courts to sort
this out for us.
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MR. STEWART: The point is taken, Your Honor, but I
think, you know, I can hit this more on the relief point.
I think the point we're stressing is that, you know, any
judge who this kind of issue is going to come before will, we
presume, give full attention, will work as hard as they can to
get the ruling right and will think that they have issued the
best ruling they can.
Given the system we work in, the fact that we have two
different courts and two judges trying to work it out, we're
simply suggesting that the scope of any relief should be
respectful of that.
There is something problematic about a situation where
plaintiffs, organizational plaintiffs can lose in one forum
after a fully-considered hearing, going through all their
arguments, and can get that relief in a case they are not even
a part of.
So that's what we're kind of pressing on the nationwide
injunction.
THE COURT: Yes. And this is the argument that --
the argument made in our prior case. And I think Judge Bybee
was quite clear in his response to that argument. And he sits
on the Ninth Circuit, so I'm going to defer to the Ninth
Circuit on that point.
MR. STEWART: Understood, Your Honor.
Getting back to just some of the points on this matter,
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Your Honor. The thing that I would emphasize on the key points
brought up by my friend with respect to Section 1158 is that
Congress has not occupied the field as to how relationships
with a third country or actions in a third country or things
that could later happen in a third country can be considered in
the context of asylum eligibility. The Safe Third Country
Agreement simply does not even actually address transit through
a country at all.
You can have a situation under that provision where
somebody is being -- a safe third country agreement authorizes
return -- or not return, removing somebody to a country that
they may never have transited. It just requires an agreement
with that other country. A safe -- kind of a safe place to
apply for asylum, Your Honor. It's not addressing squarely
this issue of transit.
So this rule addresses a very different issue. Again,
there can be some overlap. You can have a situation where a
safe third country involves somebody who transited there, but
there is nothing necessary about transit through a safe
third -- through that country for a safe third country
agreement to be in play. And that, the safe third country
context, again, requires removal to that country.
That's not what we have here. It's a situation where
somebody would be -- they have their non-resettlement related
concerns addressed, if any, and then be removed, presumedly in
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most cases, to their country of origin.
So there is no occupy-the-field problem here, Your Honor.
There is no impinging on a determination in the safe third
country provision with respect to how transit can be weighed
and dealt with on a categorical basis in the eligibility
context. And I think --
THE COURT: Is the Government not concerned with
whether something is a proxy for asylum protection?
I mean, for example, there are three international
treaties. If a country is a signatory to any one of them, then
that country falls within the rule; correct? The new rule?
MR. STEWART: Say it again, Your Honor?
THE COURT: Well, I'd have to have the language of
the rule in front of me. My language is not going to be very
precise.
But in order for the rule to be triggered, an asylum
applicant has to have passed through a country that is a
signatory to one of three international agreements; correct?
MR. STEWART: That's correct, Your Honor.
THE COURT: And isn't that because if the country is
a signatory to one of those agreements, it is a signal that
that country protects the rights of what in this country would
be an asylum seeker. That's the reason for that requirement.
MR. STEWART: I mean, I think that's part of it. I
mean, I wouldn't necessarily say "asylum seeker," Your Honor,
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but non-established type principles, I think, is what --
THE COURT: Well, the rule bars eligibility for
asylum. So that only matters to someone who is seeking asylum;
right? In other words, you don't care.
So that's -- so we can agree that we're focused on asylum
seekers, can't we?
MR. STEWART: Correct. But the rule is a little
broader about protection in a third country and seeking
whatever protection or relief may be available, Your Honor.
And I think there could be a distinction often drawn between
asylum, say, and withholding or removal. I don't mean to split
hairs, but --
THE COURT: Your rule doesn't affect withholding or
removal.
MR. STEWART: It doesn't. It preserves that.
THE COURT: Okay. So even if you -- I'm just going
to go with asylum seeker, because that's what the rule --
that's who is the object of the rule.
So we have this requirement that a third country have
signed one of these three international agreements. Can you
think of another reason why the rule contains that requirement,
other than as a proxy for the kind of protections that go along
with asylum?
MR. STEWART: I think it's a consideration that just
supports the reasonableness of requiring somebody to apply for
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asylum in one of these countries, Your Honor. And it reaffirms
the likelihood that there may be more than one country.
The rule requires just the one country. You know, one of
those countries to be something that somebody transited
through.
THE COURT: Is that a concept of equivalence, do you
think?
In other words, we might say it's strong equivalence or
weak equivalence, but isn't what the rule is doing is to say:
We think there is equivalent protection elsewhere and if there
is equivalent protection elsewhere, you need to have applied
for asylum there.
MR. STEWART: I think -- I don't know that we need
just precise congruence or equivalence, Your Honor. What
we're saying is that we --
THE COURT: I'm not saying strong equivalence.
Please listen to the question.
I'm asking whether conceptually that's equivalence. It's
not perfect. We could say it's weak or it's strong. But we're
searching for some kind of equivalence, and that's what --
that's why it's reasonable to require an asylum seeker to have
applied somewhere else; isn't it?
MR. STEWART: I'd say -- and I don't mean to fight
the hypothetical, Your Honor. I would say that it's -- there
is adequate and appropriate protection available or there
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should be an effort to seek such adequate and appropriate
protection before coming here.
THE COURT: I'll go with adequate and appropriate.
So now coming back to your point about conflict. Assuming
we can agree -- I've learned through experience that I might
sometimes be surprised when we don't agree. But assuming that
we can agree that the new joint interim rule dispenses with
some of the protections that Congress has required for the same
person -- in other words, a person that might have previously
had to consider only the safe third country bar or the firm
resettlement bar now might be subject to this new joint interim
rule -- that because the rule dispenses with some of these
protections, Congress might not have the same view that the
administration does of what's adequate and appropriate. That
is what I want you to address.
MR. STEWART: Sure. So I think the difference is
this, Your Honor. It's one thing to do the exact same -- you
know, force the exact same result and dilute prerequisites to
getting that result. But we don't have that here.
The safe third country bar, what it allows -- it's very
potent. It's unyielding. If you fall within -- if you can be
removed somewhere under that provision, you can't even apply
for asylum, but you're removed to that country.
And, again, that's through an agreement with that country
and all the steps are taken to make sure that that is an
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adequate protected place to apply for asylum.
The difference here is you're not removed to that country.
You just need to seek protection there. You need to seek
relief.
And, again, the safe third country agreement provision
isn't even really addressing transit by its terms. It's a
matter that's just focused with the fact that, look, this
person -- this person came here. We have this agreement with
this other country where we can send them, where they can
pursue, you know, relief. It could be completely separate. It
could be a place they have not been before at all.
THE COURT: So let's -- well, let's tease that out a
little bit. Let's say that we have an applicant from
Guatemala. That person will have passed through Mexico on the
way here. And let's put to one side for a moment whether that
person might have qualified for an alternative form of relief,
such as withholding or removal, and focus exclusively on
asylum.
If that personal previously had been subject to the safe
third country bar, you're saying they would have been removed
to a safe third country, and that's not what's happening here.
Under the rule what happens to that person if they don't
qualify for an alternative form of relief? They appear at the
southern border of the United States. They have traveled
through Mexico. What happens to them?
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MR. STEWART: They presumably would be removed to the
country of origin, Your Honor. There are other options
sometimes, but --
THE COURT: So they would go back to Guatemala.
MR. STEWART: Right, Your Honor.
THE COURT: Okay.
MR. STEWART: Right. It's not like -- you know,
again, it's not the third country, but that's just normally how
removal works. It's, you know, likely usually to the country
of origin.
THE COURT: Yes. Okay.
MR. STEWART: Firm resettlement bar, Your Honor, the
point I'd emphasize here is that similar to the safe third
country situation -- we've hit these in our brief, so I won't
go too long on the point. This is a situation where, again, we
are talking about somebody transiting through the country, but
it's almost -- Congress wanted to be sure that somebody who had
such a good situation --
THE COURT: Mr. Stewart, the good news is you have
something in common with Mr. Gelernt. The bad news is that you
both talk too quickly for the court reporter.
MR. STEWART: Understood, Your Honor.
THE COURT: I'll ask you to slow down a little bit.
MR. STEWART: It might not be the last time I need to
be reminded, Your Honor. I will do my best.
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So, again, it's a provision that says, look, if you have
such a strong situation in a third country that you are firmly
resettled there, permanent offer of residence, that sort of
thing, then, you know, no asylum for you.
That doesn't prohibit consideration of the sort of thing
that this rule embodies, which is: Have you applied for relief
in another country? And that's something that can be done in
light of changed circumstances.
My friend does point out to some Ninth Circuit cases that
talk about the reasonableness of expecting someone to apply for
asylum in a third country, Your Honor. What I would emphasize
there is that what those cases are getting at is they rest on a
factual assumption about reasonableness. And it's the Attorney
General and Secretary who are in a position to actually assess
those assumptions, make policy decisions based on them and --
THE COURT: But the APA -- turning to that point.
Doesn't the APA impose some requirement on the agencies to, as
you say, actually assess the evidence that they have?
You heard my comment about the administrative record. And
there is some pretty tough stuff in there, at very great length
about what things are actually like in Mexico.
Do you want to speak to that?
MR. STEWART: Your Honor, the record -- this is at
pages such as 231 to 232 about the joint statement. This kind
of hits some of our good cause foreign affairs efforts, efforts
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to get things here.
It says the Administration has been working through the --
through immigration initiatives and other means to try to
improve the situation, to try to make sure that Mexico is
considering the claims of migrants and adequately dealing with
migration through their territories. There has been a big
progress there. Again, that's what the joint declaration
recognizes and --
THE COURT: What the administrative record says is
that applications are up dramatically, but there is no
indication that -- in the record that the Mexican asylum system
has grown to be able to process those applications.
MR. STEWART: Your Honor, what the record does say
and what the rule does say is that, look, the United States is
working with Mexico and it understands that Mexico is committed
to and will abide -- it expects it to abide by its obligations.
We provide, you know, as much evidence as we have alluded to,
at least in our briefing, regarding that.
And I think we fairly considered that there are issues
here. We don't -- you know, we don't require somebody to apply
in every country. So it reduces some risks, you know, there.
It makes a tailored measurement, just apply in one country and
get that ruling.
So I think it does consider those points, Your Honor.
THE COURT: The rule identifies as its concern the
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so-called northern triangle countries; correct?
I am just telling you there are exactly four references to
northern triangle countries in the rule, so I think a fair
reading of it is that that's a concern of the rule. Is that
wrong?
MR. STEWART: It's a big concern, Your Honor. That's
where a big part of the strain comes from here.
THE COURT: Fair enough.
And then there are some conclusions in the rule itself and
some in the administrative record about the asylum system in
Mexico. But if you look at a map, the other country through
which persons might pass if they are leaving northern triangle
countries is Guatemala. And I was not able to find in the rule
or anywhere in the administrative record a scintilla of
evidence about the adequacy of the asylum system in Guatemala.
So I want to know, am I missing anything? There is not
even mention of it in the rule.
MR. STEWART: I think -- I mean, I think the evidence
that is in the record on that reflects progress in that regard.
Your Honor, if I have additional things, I can maybe flag
them on additional time.
THE COURT: I will go ahead. Even though we've not
used all that much time, I'm going to go ahead and take the
recess to give both sides a chance to go through their
materials before rebuttal, so that's fine.
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MR. STEWART: Thank you, Your Honor.
A few other points I wanted to make sure to hit. This is
quite different in kind, I think, from the Section 1158(a)(1)
port of entry, manner of entry situation that the Court found
dispositive and important in the first East Bay case.
Again, this is not -- this is not something that the Court
found -- it's not comparable to what the Court found to run
afoul of the may or may not apply regardless of whether -- you
know, manner of entry.
THE COURT: I would agree that the analysis here is
slightly more complicated.
In our earlier -- in the earlier, it's not our case. In
the earlier case, that was sort of the platonic form of
conflict and here the analysis is a little more elaborate.
MR. STEWART: We're still contesting that, Your
Honor, but we understand -- we'll see how it shakes out, but I
understand the point, Your Honor.
THE COURT: That's one I definitely didn't expect you
to agree with, so that's fine.
MR. STEWART: Very good, Your Honor.
On arbitrary and capricious points. On the TVPRA I think,
you know, our briefs lay that out. I think that falls with the
points we've already flagged. That here is more of a -- baked
into the arbitrary and capricious challenge, which I'll address
more globally now.
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The record does a very good job of supporting, Your Honor,
this problem of unconstrained migration putting a strain on our
system. Your Honor is well familiar with those points from the
prior case and things continue on.
It's really aimed quite reasonably at what the UNHCR
itself recognized in 1991 as a shared international problem
about reducing unfounded claims and different -- different
international partners working together to solve these things.
I think that's a key thing this rule gets at.
On exceptions and notice and comment, Your Honor, if I can
turn back to that briefly. I think this falls well within Your
Honor's teaching in its most recent -- in Your Honor's most
recent East Bay ruling.
I would emphasize, Your Honor, we're not resting simply on
one newspaper article. There are other -- other articles, as
Judge Kelly recognized today. I mean, he said "multiple
articles." I'm not -- he didn't identify which ones he was
flagging, but I would point out, Your Honor, that we have other
more recent material from the GlobalPost, I believe is one.
THE COURT: What would you say -- because I think --
let's say that the Court were to conclude -- because there is
more than one article in the record now.
Let's say the Court were to conclude that that one
Washington Post, was it? Anyway, that one article. You and I
have the same one.
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MR. STEWART: I think it's Washington Post, Your
Honor.
THE COURT: That that was the only one that attempted
to actually tie the publication or announcement of an
immigration rules change with an uptick in migration activity.
Mr. Gelernt's argument is: Well, if that's true, that can't --
that one article can't be carte blanche forever.
Do you want to respond to that argument?
MR. STEWART: Sure, Your Honor.
I think what we're currently dealing with is a crisis that
we have identified that's become particularly stark over the
last, you know, few years; the spike in family units and the
issues that that's put -- the strain that that has put on our
asylum system.
We're not suggesting that that would be the situation
forever. Again, I mean, migration trends change --
THE COURT: Well, the question is not what if there
were a change in the facts at the border, because at that point
I think the article just becomes irrelevant.
The question is: If the facts at the border remain
similar so that the United States continues to experience very
large numbers of migrants and continues to feel great
administrative burdens because of that, could the fact that in
2018 a Washington Post reporter said something continue to
permit the Government as it wheels out new immigration policies
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to dispense with notice and comment and just to say: Well, in
2018 this fellow at the Washington Post said this. That's, I
think, Mr. Gelernt's argument.
MR. STEWART: Right. And we're not saying that, Your
Honor. Again, we have more recent -- we have more recent
articles.
I can't give a precise timeline for any of these, Your
Honor, but what I can tell you is that we have -- I believe
when I was here last fall, Your Honor, we had, I think it was
-- I can't remember if it was in the 700,000s or it hit 800,000
or what as the immigration backlog. It's now over 900,000 and
we have continuing surges.
On Pages 664 to 665 we have documents that indicate, like,
look, when you change these policies, you have a big influx,
and other information saying that people are really trying to
get to the United States.
768 of the record says, look, migrants are informed. They
understand the basics of the incentives and they are informed
about how changes in the law or changes in policy can affect
their options when they get here.
So I think we don't need to rest, I think, on just one
article, Your Honor, and have that frozen in time. We're not
pressing the need to, you know, say that that would be carte
blanche forever. I don't think that Your Honor needs to reach
the issue and I would suggest that, look, we have other pieces
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that surely under Your Honor's prior ruling are enough on good
cause.
With respect to foreign affairs, and I don't want to go
too much longer, Your Honor, given the desire to save some time
for rebuttal. I would emphasize that the migrant protection
protocols which have been in effect for six or seven months and
is another, you know, one of these initiatives to put pressure
and used to share the burdens with Mexico and other partners,
that since those have been in effect, you know, progress has
been made on a number of fronts. You know, a few months after
those were announced -- a few months after those were
announced, we had the U.S.-Mexico joint declaration.
So I think it does show that this kind of an initiative
promptly put in effect is important in negotiations and just
keeping the pressure on.
I think one thing the record really does hit home very
effectively, Your Honor, is that pressure on Mexico works. I
mean, as with negotiations more generally, you can't always --
you know, it's not always an ask nicely and hope somebody helps
you out. It's keep the pressure on and make sure that
everybody is doing their part in this international challenge
we're facing. So I think we are very solid on foreign affairs.
Harms, Your Honor. I would -- I would hit some of the
points I flagged earlier with respect to Judge Kelly's ruling;
that he did really lead with irreparable harm.
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And I understand Your Honor's points about --
THE COURT: He's in a different circuit than I am.
MR. STEWART: He is, Your Honor.
THE COURT: I haven't read the cases that he
presumably read before he issued his ruling, nor would I need
to do that, just as I expect he may not have read the cases
that I've read. But one of the cases that I read was the Ninth
Circuit's opinion in the prior East Bay case.
And so as I started by saying, I think to Mr. Gelernt,
that on the balance of harms and that part of the analysis, I
don't know that there is much new here. If there is, you
should tell me.
MR. STEWART: I think, you know, we'll -- we've made
the points we want to in our brief.
I take your point about East Bay and I understand what
Your Honor is saying on that.
We think here we have a cognizability of harms problem.
We do think there is a lot of speculation given that, for
example, none of the irreparable harm declarations that my
friends have submitted really acknowledge how things would
change if, as the Government expects, this rule will change
incentives and bring asylum claims to the country that are more
meritorious.
I mean, for all that has been alleged, I mean, this could
lead to a situation where it vastly improves the international
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Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
approach to refugees; make sure that the people who actually
reach our southern border seeking asylum are making credible
fear claims, do have strong claims. And when you have that,
you know, could go either way sort of thing based on their
declarations, I submit -- again, I understand what Your Honor
has said about East Bay, but I submit here, given where things
are, it's -- there is a different result.
Finally, I just want to say circling back to something
mentioned at the beginning, Your Honor, before I try to save
remaining time. Just to be clear with respect to the
scheduling of the hearings, I was in Boston yesterday and
wanted to make sure that I could go to all hearings. Judge
Kelly is the one who ordered the hearing on Monday. So I just
want to make clear, we -- you know, we did our best to
accommodate all of that.
THE COURT: No, no. Now it's my turn to be clear.
I fault no one. I don't think the Government was trying to
play games with me. That's not -- I don't think that. And I
don't think Judge Kelly -- I don't have any issue with Judge
Kelly either.
My point was not that I thought that anybody was playing
fast and loose with the schedule. My point is just these are
two District Courts, both trying to do their best work on an
issue of national importance, and they both need to be allowed
to do their work in its entirety. That's all.
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
MR. STEWART: Thank you, Your Honor.
I just wanted to be clear, because we have a lot of balls
in the air and we want to make sure that the Court is -- we're
keeping it as informed as we can.
THE COURT: Mr. Stewart, you should be flattered. I
granted Mr. Reuveni's request so that I could hear your
argument once again.
MR. STEWART: It's a great honor. Thank you, Your
Honor.
THE COURT: Very good.
MR. STEWART: With that, Your Honor, I'm happy to
save additional time for rebuttal.
THE COURT: Very good. I believe, if my eyesight is
accurate looking down there, you have about 17 minutes and the
plaintiffs have about 34 minutes.
I'm going to honor my promise to the parties and take a
recess for 15 minutes. Thank you.
(Whereupon there was a recess in the proceedings
from 10:15 a.m. until 10:30 a.m.)
THE COURT: Mr. Gelernt.
MR. GELERNT: Thank you, Your Honor. I just have a
few very brief points.
On the administrative record points, whether there are
additional articles beyond that one Washington Post article, I
don't know all the articles that the Government was referring
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
to, but I think that they referenced one GlobalPost article at
AR 664-665 and another article at 678. The article at 678
deals with different demographics of asylum seekers and the
other one at 664-665 deals with humanitarian visas.
The only thing I would say about that is that those
articles do not talk about a direct link between information to
migrants and surges. They are about different things.
I think the other point I wanted to make is that obviously
the rule is not going to, for all the reasons we've said in our
brief, only bring the most meritorious claims. And, in fact,
the odd thing is that if you had denied asylum somewhere else,
you can then come and apply. So those are presumably the
weakest claims.
The final point, I wanted to just address Your Honor's
question that you issued over the weekend about whether we
would be -- whether we think it's appropriate to treat this as
a P.I. Because we did get the record in time to address it in
our brief, we think that that is probably -- that is the
appropriate way to go, is to treat this as a preliminary
injunction given that both sides addressed the record.
Unless there are further questions, I will sit town.
THE COURT: Mr. Gelernt, I don't have any. Thank
you.
MR. GELERNT: Okay. Thank you, Your Honor.
THE COURT: Mr. Stewart.
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
MR. STEWART: Thank you, Your Honor. I'll be brief
as well.
With respect to just some of the incentives and the good
cause, I would emphasize with respect to the GlobalPost
article, Page 665, Your Honor, of the record.
THE COURT: Yes.
MR. STEWART: It talks about an influx of new
arrivals following the provision of visas in Mexico. Again, it
supports the quite logical understanding that the announcement
of a policy has an effect on influx and it can be, you know, a
quite prompt effect.
You know, this one, if it's as big an effect as
Mr. Gelernt says, it would be quite reasonable to expect a big
response to that. That sort of change, which goes -- which
very strongly supports our good cause argument.
Two other points, Your Honor. To the extent that Your
Honor were inclined to rule on the ground of just the arbitrary
and capricious challenge, we would submit that if the Court
were to believe to reach the conclusion that the record doesn't
support the policy for some reason, we would submit the
appropriate remedy in that case would be at most a remand to
the agency without vacatur, where the Court would say: Look, I
think the record does not support the change in policy.
Agency, go back and provide support for it.
THE COURT: I'm familiar with that mechanism.
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
Wouldn't that be appropriate in the situation where I
found that the rule was not inconsistent with the existing
provisions of 1158, on the one hand, but on the other hand I
found that the rule was arbitrary and capricious? In that
instance, then, the mechanism that you're describing would be
available to me; but if I found that it was inconsistent, it
would not be. Isn't that true?
MR. STEWART: If you rule on the statutory authority
ground --
THE COURT: Right.
MR. STEWART: Right. It's the arbitrary and
capricious ground that we're emphasizing there.
I think a reasonable example, going back to the migrant
protection protocols, was the Ninth Circuit stay panel's
decision there, where it stayed a nationwide injunction and it
did so on the ground that, look, you know, we don't -- we think
that the statutory authority is likely there and that's that.
And there was also a notice of -- you know, a legislative rule
issue there.
You know, those were the grounds that would support a
nationwide injunction. Therefore, since those grounds -- the
stay panel found wanting, the Court stayed the nationwide
injunction.
THE COURT: Is that Judge Seeborg's case in the
District Court?
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
MR. STEWART: It was, Your Honor.
THE COURT: Okay. I have the case in mind.
MR. STEWART: And that's 924 F.3d 503. I believe
it's 508 to 509. It's a short opinion and I think provides
good support if the Court were to rule on that ground.
Finally, Your Honor, the Government would be amenable,
would agree as well that conversion from a TRO to a preliminary
injunction would be appropriate.
The point that I would just emphasize, Your Honor, is that
as in the prior case and as we've noted in our briefing here,
we oppose that -- you know, aside from permitted purposes, we
would oppose adding additional points to the record on, say,
the arbitrary and capricious challenge. You know, as we've
said, if the Court were to want to consider items outside the
record --
THE COURT: If I were to enjoin this rule, I do not
anticipate that I would speak to anything that's outside the
administrative record, first of all.
And secondly, I appreciate the parties agreeing that a
preliminary injunction is appropriate. Whoever is unsuccessful
today, I'm sure will want immediate appellate review. And if
the Court issues a temporary restraining order, it can create
questions in the mind of the Ninth Circuit as to whether
immediate review is appropriate. And if you jump over the TRO
stage, then you just eliminate that question.
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
MR. STEWART: Okay. And if there's nothing else,
Your Honor, I think I would reiterate the points we've made in
our briefs.
THE COURT: All right. I don't have any additional
questions for you either.
MR. STEWART: Thank you, Your Honor.
THE COURT: Thank you both very much for your
arguments, for your thorough and well-written briefs, and for
the opportunity once again to work on something of such
interest.
This motion is now under submission. I anticipate that an
order will issue in writing later today. For now the motion is
under submission.
Thank you.
(Proceedings adjourned.)
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Debra L. Pas, CSR, RPR, RMR, CRR
Official Reporter - U.S. District Court - San Francisco
(415) 431-1477
CERTIFICATE OF OFFICIAL REPORTER
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.
__________________________________
Debra L. Pas, CSR 11916, CRR, RMR, RPR
Thursday, July 25, 2019
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