Court filing
Transcript of TRO Hearing (Nov. 19, 2018) — East Bay Sanctuary v. Trump
Filed November 20, 2018 in East Bay Sanctuary v. Trump; one of 67 filings from this case.
Record facts
| Court | U.S. District Court, N.D. Cal. |
|---|---|
| Filed | 2018-11-20 |
U.S. District Court, N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 45 · 2018-11-20 · Docket on CourtListener
Full text
Pages 1 - 63
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE JON S. TIGAR, JUDGE
EAST BAY SANCTUARY COVENANT, et al., )
)
Plaintiffs, )
VS. ) NO. C 18-06810 JST
)
DONALD J. TRUMP, et al., )
) San Francisco,
Defendants. ) California
_____________________________________)
Monday, November 19, 2018
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiffs:
AMERICAN CIVIL LIBERTIES UNION
125 Broad Street
18th Floor
New York, New York 10004
BY: LEE GELERNT, ESQ.
AMERICAN CIVIL LIBERTIES UNION
39 Drumm Street
San Francisco, California 94111
BY: CHRISTINE P. SUN, ESQ.
VASUDHA TALLA, ESQ.
SPENCER AMDUR, ESQ.
JULIE MICHELLE VEROFF, ESQ.
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue, NW
Suite 100
Washington, D.C. 20009
BY: MELISSA CROW, ESQ.
Reported By: BELLE BALL, CSR 8785, CRR, RDR
Official Reporter, U.S. District Court
(Appearances continued, next page)
Case 4:18-cv-06810-JST Document 45 Filed 11/20/18 Page 1 of 64
APPEARANCES, CONTINUED:
For Plaintiffs:
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway
Seventh Floor
New York, New York 10012
BY: BAHER AZMY, ESQ.
For Amicus State of Washington:
WASHINGTON ATTORNEY GENERAL'S OFFICE
Post Office Box 40100
Olympia, Washington 98504
BY: MEGAN DY LIN, ESQ.
For Amicus Immigration Reform Law Institute:
LAW OFFICE OF LAWRENCE J. JOSEPH
1250 Connecticut Avenue, NW
Suite 700
Washington, D.C. 20036
BY: LAWRENCE J. JOSEPH, ESQ.
For Defendants:
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
BY: SCOTT G. STEWART, ESQ.
DEPUTY ATTORNEY GENERAL
OFFICE OF IMMIGRATION LITIGATION
U.S. DEPARTMENT OF JUSTICE
Ben Franklin Station
Post Office Box 868
Washington, D.C. 20044
BY: FRANCESCA M. GENOVA, ESQ.
TRIAL ATTORNEY
OFFICE OF IMMIGRATION LITIGATION
Also Present: MARY BAUER, ESQ.
Case 4:18-cv-06810-JST Document 45 Filed 11/20/18 Page 2 of 64
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Monday - November 19, 2018
9:28 a.m.
P R O C E E D I N G S
THE CLERK: Calling Civil Case 18-6810, East Bay
Sanctuary Covenant, et al. versus President of U.S. Donald J.
Trump, et al.
Counsel, will you please approach and make your
appearances.
MR. GELERNT: Good morning, Your Honor. Lee Gelernt
from American Civil Liberties Union for plaintiffs.
MR. STEWART: Good morning, Your Honor. Scott
Stewart on behalf of the Department of Justice for the
President and the other defendants. I'm joined by my
colleague, Francesca Genova. Thank you.
THE COURT: Welcome, good morning. And good morning
also to other counsel, whose appearances have been noted for
the record.
It also looks like we have a few more people in the
gallery than we normally do. Welcome to you also. This is a
public proceeding.
Let me deal with a few administrative matters before we
get going. I'm going to set time limits on argument of 45
minutes per side. That time includes time spent answering
questions from the Court. There may be substantial questions
from the Court.
First the plaintiffs will argue, and then the defendants.
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And then the Court will take a 15-minute recess. Then the
plaintiffs will make a rebuttal argument if they want to do
that and they have time left, and the defendants will make a
rebuttal argument if they want to do that and they have time
left. At that time, unless I order otherwise, I will then take
the motion under submission.
There is no need to reserve time or to ask Mr. Noble to
reserve time. The amount of time you don't take during your
initial argument is the time that you will have for your
rebuttal. He will be keeping track of your time.
For the administrative convenience of the Court, the
amicus brief of the State amici at Docket No. 34 is now deemed
filed. I asked them to file it separately, and for whatever
reason, they didn't, so we're just going to dispense with that.
Do counsel have anything for the Court's attention before
we proceed this morning?
MR. GELERNT: No, Your Honor.
MR. STEWART: No, Your Honor.
THE COURT: All right. Very good.
Mr. Gelernt, you may proceed.
MR. GELERNT: Thank you, Your Honor.
Congress has made explicit in the Immigration and
Nationality Act that an individual may apply for asylum,
quote-unquote, whether or not they crossed at a point of entry
That was 1980, when they adopted the Refugee Act.
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1997, they again made explicit that it did not matter
where you entered, you could apply for asylum.
So what we have here, I believe, Your Honor, is not only a
case dealing with an enormous potential humanitarian crisis,
but a classic separation-of-powers case. The administration is
trying to override what Congress has done.
Congress has made a very explicit decision to say it
doesn't matter where you enter. And the reason, I think, is
straightforward. It's not to condone people entering between
ports of entry. Congress has put in criminal penalties for
that. They have also put in civil penalties.
But what Congress recognized and what international law
recognizes and what all experts in this area recognize,
including our declarants, is that there will be times when
people enter between ports of entry. But entering between a
port of entry has no bearing on how much danger you may be in.
And so what our declarations show is that there are times
when people enter between ports of entry, where they just
simply couldn't help it. Right now, they're being pushed back
from ports of entry by the Mexican government. They're not
even allowed to be put on lists. There are young children in
Mexico who are begging to be put on a list at a port of entry,
who are not allowed to. There are long lines. CBP is pushing
people back. Sometimes they tell families: Well, you can go
to a different port, that's 50 miles away.
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And contrary to the narrative that's been out there
publicly, these are not all criminals, cartel members who are
coming here. These are families. Yesterday one of our counsel
were out there, and little boys are trying to get their teddy
bears, they're here without their parents, trying to get in.
This is a real humanitarian crisis.
And Congress could not have been clearer. It cannot be
that you could not apply for asylum simply because you entered
between a port of entry. And so what the President is trying
to do is simply override that.
And I think -- in response to the government's suggestion
that there's a crisis here, I think there's a legal and factual
response to that. The legal response is what I've just said.
Congress has made the decision. And contrary to the
administration's claim that there is now an immediate crisis
going on, this is a long-term issue that Congress has been
dealing with. By the government's own admission, there was
less than 400,000 apprehensions at the border. If you look at
2000 to 2008, there were well over a million apprehensions in
those years, those eight years.
Congress has been well aware of this issue, and has taken
a variety of steps. But the one thing it's never done is say:
You can't apply for asylum. And that's just because of the
fundamental special nature of asylum.
Congress can do a lot. No one is here condoning people
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crossing between borders. But ultimately, people will cross
borders because they don't know where the ports are, because
they're pushed back, because criminal elements push them
between ports.
And Congress has said: You have to be able to apply for
asylum.
The factual point I would make --
THE COURT: Mr. Gelernt, there's a great deal of
information in the record, that it's sort of diffuse about the
number of people who have entered the United States along the
southern border at various ports -- points in time, the number
of people who have applied for asylum, and so forth.
Is there anything from this record from which I can
determine the number of people in a recent period, a recent
fixed period such as the most recent fiscal year or some other
definable period who were granted asylum under the existing
law, but who would have been denied asylum or denied asylum and
deported, under the new interim rule?
MR. GELERNT: Your Honor, I don't think there's
anything that specific in the record. We certainly can try
and supply it. But I think this is -- this is moving so
quickly. My co-counsel may have some specific number.
But I think --
THE COURT: Well, perhaps -- I don't mean to -- I'm
mindful of our time limitations. And obviously, there will be
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an opportunity for rebuttal. And so a member of your team
could be looking for this. And we can move along to something
else.
MR. GELERNT: I think, Your Honor, the answer may be
to 20,000 --
(Off-the-Record discussion between counsel)
MR. GELERNT: 20,000 who applied, and 6,000 who
passed. So we may be talking about --
THE COURT: Well, let's do this. Let's postpone that
question.
MR. GELERNT: Yes, Your Honor.
THE COURT: Because the next time you answer it, I'll
be looking for a record cite.
MR. GELERNT: Right, Your Honor. I apologize.
THE COURT: Let's, let's -- I have some additional
questions.
Are you challenging the validity of the proclamation,
standing alone? Or just the rule?
MR. GELERNT: Your Honor, that's a very important
question. And I think -- what we believe is the only thing we
need to challenge it is regulation. We are not here
challenging the proclamation, suspension of entry. I mean, we
have real doubts that does, anything because EWI's, by
definition, entering without inspection are already barred.
We are simply here challenging the regulation. We think
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it's enough to have an injunction on the regulation, because
that's what bars asylum.
THE COURT: Got it. Okay. As long as I've
thoroughly interrupted you anyway, let me --
MR. GELERNT: No, Your Honor. I apologize for not
having that record cite.
THE COURT: No, no, no, please. At some point this
morning I'm going to need to find out what is the term of the
relief the plaintiffs are seeking.
Is this really a temporary retraining order, or, given the
circumstances, is it really in the nature of a request for a
preliminary injunction? And if it's a TRO, what further
proceedings do the plaintiffs anticipate, and on what timeline?
As you know, the rules anticipate --
MR. GELERNT: Right.
THE COURT: -- a schedule of follow-on proceedings.
And I have -- my instinct tells me that the parties are going
to seek immediate appellate review. And that a
preliminary-injunction proceeding is not in anybody's
near-term future. But, you may tell me otherwise. We just
have to straighten that out.
MR. GELERNT: Well, Your Honor, I think one thing the
Ninth Circuit has said is that if it's a pure TRO, it might
not be appealable. So I think we're looking for a TRO right
now, but we would be prepared to move on whatever schedule you
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Case 4:18-cv-06810-JST Document 45 Filed 11/20/18 Page 9 of 64
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think is appropriate for preliminary injunction.
So a TRO, as Your Honor knows, would last 14 days. It
could be extended another 14. So we are prepared to be back
here in 14 days, or if you extend it, any time between 14 and
28.
But on the TRO, I think the reason we believe we need a
TRO, a short-term TRO, is because the danger right now. Every
day, people are in real danger of being --
THE COURT: The question before the Court is not
whether I would not issue a TRO because of -- nothing about my
question either expresses a view on the merits of TRO
application, or forecloses the possibility of the issuance of
a TRO. But I do wonder what further proceedings does anybody
contemplate.
We don't even -- no one has even hinted that there might
be the production of an administrative record. I mean, reading
the briefs, I think the parties have given me everything they
want to give me. And if that's true -- and I'll ask the
government this question --
MR. GELERNT: Right.
THE COURT: -- in a few minutes, obviously. What
further proceedings do they anticipate. But I'm -- I guess
what I'm saying is -- well, I think I've said what I need to
say.
MR. GELERNT: No, that's fair, Your Honor. If there
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Case 4:18-cv-06810-JST Document 45 Filed 11/20/18 Page 10 of 64
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are going to be further proceedings, we believe we have
obviously put in enough for either a TRO or a preliminary
injunction, which I think what is Your Honor's getting at.
And whether, now, you would want a guidance from the Ninth
Circuit on going forward.
If we were going to go forward, we certainly would want to
see some type of record from the government on why the
regulation was passed, because we don't think what's in the
preamble to the rule was sufficient.
We would certainly continue to give Your Honor more
information because, as you know, there was no 30-day grace
period for the rule to go into effect, and no notice of
comment. And so we've literally been scrambling 24-7 all over
the country. And every day, we're learning about individuals
who are in serious danger.
So I think if we did go forward, if Your Honor decided to
bifurcate, have a TRO and then have a PI, and neither side
tried to take up the TRO, I think we would present that type of
record evidence for you, because I think people's lives are
very much in danger. They're in danger on the Mexican side
because they are stranded there, families, kids, for six weeks,
seven weeks. And it's very dangerous over there.
There are also individuals now we're finding who have gone
through to this country, been apprehended, would normally apply
for asylum, have very strong asylum claims, but are not allowed
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Case 4:18-cv-06810-JST Document 45 Filed 11/20/18 Page 11 of 64
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to be -- not being allowed to apply for asylum and are in
imminent damage of being removed.
In terms of the record, I think, as Your Honor has pointed
out, there is not an administrative record. There is a fairly
conclusory preamble to the regulation. And I would just want
to make two points about that preamble. One is a sort of
conceptual point.
If Your Honor looks at that preamble, I think Your Honor
will see that almost everything there goes to that the
government doesn't -- this administration doesn't believe that
people are passing at high enough rates or showing -- passing
at too high rates or showing up for their hearings. All those
types of things.
And what I think Your Honor will take from that is that
really, the beef the administration has is with how the asylum
process works. Not with ports of entry versus entry without
inspection, which is really supposed to be the issue. How
often people show up for their hearings. And we dispute that
factually. And we have an affidavit from the Tahirih
declaration -- Tahirih (Phonetic).
But that doesn't go to whether you apply at a port of
entry or enter without inspection. That simply goes to the
government's feeling that the asylum process is too easy for
people. It's an asylum process, though, that Congress set up.
Likewise, the time it takes to do the hearings. You have
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Mr. Rodriguez's declaration, who is the head of the United
States Citizenship and Immigration Service, who is saying the
same amount of time -- it takes the same amount of time to do a
hearing at a port as between -- when someone enters at a port
versus when they are enter between ports.
So most of what you see in there about the high asylum
rate for people from the Northern Triangle really doesn't go to
where they enter. It goes to the administration again feeling
like the asylum process is not what they would want. But, it's
a asylum process Congress set up.
THE COURT: What is the fit between that point, which
I think finds support in the record, and the legal fit between
that point and your complaint that the proclamation and the
rule violate the INA, or that there was an improper failure to
utilize a notice and comment period? Do I incorporate the one
into the other?
MR. GELERNT: Your Honor, I think that's exactly the
right point, because what we are saying is all those facts
might suggest that Congress look at the asylum process again.
I mean, Congress has looked at it a ton, and said: We're
happy with the asylum process.
But all of that goes to whether or not there should be
asylum at a port of entry or entering without inspection. It's
the government's burden to come forward and say: The reason
we're shutting down asylum for people between ports but not at
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ports is there's some government interest in that.
And we cannot really find that in the preamble.
Everything about the rates, the grant rates of asylum goes to
whether you -- doesn't go to where you apply, it goes to
whether you can apply, anywhere.
The only things the government is saying about why they
want people to go to ports is: Well, they would rather people
go to the ports, and it be an orderly process.
We don't dispute that. That's fine. But the reason we
dispute factually is -- well, as I said, Your Honor, it's a
legal and factual answer, because legally, Congress has made
the decision, is well aware of this issue. So that's really
dispositive.
But factually, the government has not put in anything to
suggest that this rule will eliminate people going between
ports of entry.
And I think that's what our declarations say, and there's
really nothing in the record to contradict it. That they're
very unsophisticated people, often, who simply don't know where
the ports are. There are criminal gangs who pull people
between ports of entry and they say "You have to go here" and
they are sometimes at gunpoint. Sometimes the kids are not
allowed to be put on a.
List. What we've learned recently is that the Mexican
government is not letting children at ports of entry apply
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unless they have a guardian or a parent to tell them -- to --
to sign something. Well, if they're fleeing from their
parents, they're obviously not going to have a parent there.
So what the administration has said is: We think putting
out this rule and we think doing it right now will channel
everyone to a port. It's simply not supported by the record.
And to Your Honor's question I think on the notice and
comment is very important, because what our plaintiffs would
have said in a notice and comment is: This is not going to
work to channel everyone to a port of entry. And what they
would explain based on decades and decades of expert
observations is just simply saying: "Go to a port, you can't
apply" is not going to work. They are indigenous people coming
from Central America who have no idea where the ports are.
There are cartels telling people at gunpoint: You must enter
here or we're going to kidnap you, rape you. There are long
lines, six weeks, sometimes, little sleeping in Mexico in
dangerous areas. So that would have all been said in a notice
of comment. So I think that's really what's missing from the
preamble and the regulation, is any reason to believe that this
kind of rule would channel everyone to a port.
But again, this is something, Your Honor, that Congress
has known for a long time. Again, 2000 to 2008, well over a
million people were entering between ports. So the
administration claiming that all of a sudden there's an
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emergency now? This is a long-term issue that Congress has
been dealing with. And Congress has tried a variety of ways.
And certainly, everyone says you can channel people to ports if
you want, but the one thing you cannot do is buy asylum.
(Off-the-Record discussion between counsel)
THE COURT: Where in the record could I easily
find -- and you can address this in rebuttal too -- the
reference to a million people entering between ports between
2000 and 2018 (sic)? I'm just asking for a record cite --
MR. GELERNT: I'm sorry, Your Honor --
THE COURT: -- to the point you just made, either
now, or at some later time in your argument.
MR. GELERNT: Yes, Your Honor. I apologize again. I
hope I don't have to apologize too many more times.
THE COURT: You don't have to apologize -- it's a big
record. I don't know where it is, either. That's why I asked
you. So it's fine.
MR. GELERNT: Um -- but -- Your Honor, it is an
official United States Border Patrol, and I --
(Off-the-Record discussion between counsel)
MR. GELERNT: Your Honor, it's cited in the Isacson
declaration. He has two declarations. One an original, and
one a supplemental. And it's the United States Border Patrol
specific southwest border sector numbers.
And what it shows is in 2000, there were 1.6 million
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between the ports. 2001, 1.2 million. The next two years,
over 900,000. The next two years -- next three years, again
over a million. This year, the government has said there's
under 400,000.
And so I think the relevance for that for the notice and
comment is: This is not one of those emergency situations.
And the notice and comment is very important in a
situation like this, because it needs to take into account the
views of people on the ground, like our plaintiffs. And what
would have happened if there were notice and comment is we
would have explained that the numbers were higher historically,
we would have explained why this rule is not going to channel
certain people to the ports.
And so I think -- what the Ninth Circuit has said is: You
really need a strong showing for good cause. They have said
it's very demanding; the Courts should really scrutinize it. I
don't think the preamble's conclusory assertion that this rule
will channel everyone to the ports and that it was truly an
emergency is actually -- could come close to satisfying the
Ninth Circuit's standard.
What the Ninth Circuit has said is that you -- you have to
make sure that it's truly an emergency. What we're talking
about here, I know that there's been a lot of talk in the press
about the caravan. But the truth is that when you look at the
preamble, there is very little about the caravan, and there is
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a lot about annual statistics. And I think that that is
because, ultimately, the government recognized that the caravan
is not a serious issue.
And as the Isacson declaration and the Pinheiro
declaration pointed out, caravans -- most of the people usually
end up dropping off. Our own military has put out that it is
likely to be only 20 percent of the people come. And most of
those people will come to the ports.
And, caravans have been coming for years, as our
declarations have said. I think this narrative about the
caravan has gotten out there, but the truth is it's something
that happens all the time. Immigration is cyclical. And the
numbers, as I said, have been way higher. So I think the need
for putting in this rule immediately was not there.
And the government has suggested: Well, there were
foreign affairs. But again, the courts have been clear that
just because it's immigration doesn't mean it's foreign
affairs.
And if you look at the Jean v. Nelson case out of the
Eleventh Circuit, that was about the Haitians, but they said
the foreign affairs exception wasn't guaranteed -- sorry --
wasn't satisfied.
If you look at the cases the government is relying on,
they were aware there was serious emergency foreign affairs
issues: That Iran hostage crisis. After 9-11. Those are the
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types of foreign affairs situations where the Congress has
said: We will excuse notice and comment. But not in a
situation where ultimately what the government is saying is:
We don't like the patterns of migration, that Congress has been
aware of. So we don't believe there's actually been an
emergency.
I would just say a few words before I sit down about
standing, Your Honor. The first thing I would say is, as
Your Honor knows, courts regularly find organizational
standing. And we believe that we have -- declarations clearly
show that there is going to be a diversion of resources and
frustration of mission.
The other thing I would say is at this point, since as
Your Honor knows, we are moving very quickly, the Ninth Circuit
has said, like, for example, in the case Valle de Sol: At this
stage, the preliminary stage, you don't need to have fullest
possible record. You just need to have a basic showing.
I think that we have more than a basic showing about how
all our organizations are going to have to divert resources.
And that's both for our merits INA claim, and our notice and
comment claim.
And I know the government has also pushed a
zone-of-interest type of argument. The things I would say
about that are it's a prudential doctrine. Obviously, at this
stage, the Court can just satisfy itself that there's enough
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here.
And courts routinely find in situations like this that
organizations are within the zone of interest. That's the
A.O.L. case by Judge Bashant in the Southern District of
California, that's the Doe case by Judge Robart. It's also
Hawai'i v. Trump where the states are -- where the state was
suing under the INA, and found to be within the zone of
interest.
I think, ultimately, the government's argument proves too
much. If it had to be a non-citizen, then no organization
would ever be able to sue. But courts have routinely found
that organizations can sue. And especially in a situation like
this, where things are moving so quickly, and where it's an
enormous --
THE COURT: Give me again, please, the name of the
Ninth Circuit case on lower --
MR. GELERNT: Valle de Sol, Your Honor. It was the
challenge -- it was a 2013 Valle de Sol case --
THE COURT: I have it now. Thanks.
MR. GELERNT: Yeah.
THE COURT: Thank you.
MR. GELERNT: And, and then, then just before I sit
down, on the APA notice and comment, I think the government is
sort of half-heartedly suggesting the organizations don't have
a right to sue on that claim, the APA 553 notice and comment.
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Truthfully, in the immigration area, those are the only
people who actually comment. A non-citizen, especially a
non-citizen abroad, is not commenting on a regulation. So I
think it would have to be the organization who's ultimately
going to comment on that. So we think, clearly, there's
standing, especially at this preliminary stage, Your Honor.
So unless the Court has questions, I would reserve the
rest of my time.
THE COURT: Very good.
MR. GELERNT: Thank you, Your Honor.
THE COURT: Thank you, Mr. Gelernt.
Mr. Stewart.
MR. STEWART: Thank Your Honor. May it please the
Court.
The rule and proclamation at issue in this case respond in
a targeted and lawful way to a serious crisis facing our
immigration system. That crisis is the crushing strain caused
by large numbers of unlawful entries at our southern border
that are followed by ultimately meritless assertions in the
credible fear process.
This misuse of our asylum system --
THE COURT: What's the practical effect of the rule?
What does the administration hope to accomplish in terms of
the rule's practical effect?
MR. STEWART: A few things, Your Honor. One
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practical effect is to channel, as the rule explains, those
who seek to enter the country to ports of entry where they can
be processed in an orderly, controlled and sensible way, where
they don't have to be the subjects of at-large preliminary
examinations that put themselves and American law enforcement
lives at risk. That's one.
The other, Your Honor, is to facilitate negotiations with
our international partner, Mexico, in the effort to have Mexico
as well as the Northern Triangle countries contribute and help
address the serious issues caused by migrants transiting
through Mexico, making a journey that has potential danger.
So it's aimed also to facilitate an orderly and safe
process to get that existing set of problems resolved.
THE COURT: So I want to pick up on the point that
you just made which actually echoes something Mr. Gelernt just
said, and that is that the regulation -- the language of the
regulation takes the view that, writ large, there are not
enough meritorious asylum claims contained within the body of
applicants. And that's essentially what you just said. And
that is that we have too many people applying for asylum who
are not qualified.
You and I can agree that some of the applicants are
entitled to receive asylum, and they do receive asylum.
Correct?
MR. STEWART: Correct, Your Honor.
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THE COURT: That happens. Is there anything about
this rule that increases the percentage of meritorious
applications?
If that's the problem, what, if anything, does this rule
do to solve that problem?
MR. STEWART: Your Honor, it discourages people from
crossing unlawfully, and essentially buying potentially years
of release into the country because of the very low initial
threshold by establishing a positive credible fear.
THE COURT: Is there any correlation between what you
said and the existence of credible fear or the other criteria
that would qualify somebody for asylum?
How are those things logically related to each other?
It's true the rule will discourage people from entering
the country to make asylum claims. That seems clear. Everyone
agrees on that. And it does that in some ways by making it
more difficult to present such a claim. And there's a debate
about whether it's appropriate to make it more difficult than
the way the rule does that. That's why we're here this
morning.
But my question is: Having done that, how does that make
it more likely that the claims that are ultimately presented
are meritorious?
MR. STEWART: Because the people who are most likely
to present -- to have legitimate asylum claims will then go to
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ports of entry, are more likely to go to ports of entry. Or
they will be beneficiaries of a potential solution with
Mexico, with the Northern Triangles that addresses this issue
on a broader scale, Your Honor.
Your Honor, I would emphasize here that this is not a rule
that targets just asylum-seekers, across the board. It's
focused on a particular problem of folks who are largely from
Northern Triangle countries who cross illegally between ports
of entry and are able to stay in the country because they pass
a federal fear screening, even though they ultimately, by large
numbers, don't show up for asylum hearings, don't apply for
asylum at all, and when they do apply and do show up, their
claims are ruled to have no merit.
And that --
THE COURT: Why is it that people with meritorious
asylum claims are more likely to go to ports of entry than
people whose claims are not meritorious? How does the one
follow from the other?
MR. STEWART: Because if they're rendered ineligible
to get asylum, they will -- they will channel to ports of
entry because they don't want to miss that shot at asylum. If
they do have an ultimate shot at getting asylum, at meeting
their criteria and showing what they need to show, and
actually prevailing on their case, then they're likely to say:
Oh, gosh, I don't want to blow my shot at this. I want to
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present lawfully, so I can still be eligible for this
discretionary benefit.
That's it, Your Honor.
THE COURT: Doesn't that argument assume that people
whose claims ultimately are going to be denied know that they
are going to be denied in advance?
People say: Well, my claim is going to be granted, so I
better go here.
Someone says: Well, my claim's actually going to be
denied. I'll go this different place.
Is that the government's position?
MR. STEWART: Your Honor, I do think the people who
actually -- some people logically know that their asylum
claims are going to have more merit than others. A very small
number of these claims turn out to show -- you know, have
merit. It's the people, it seems, who actually show up to
their asylum hearings and make out the case. It's not the
case for everyone. I mean, there's a very small group of
people who end up in this group who end up actually getting
grants of asylum.
And it encourages people to -- who actually know they have
a strong case for asylum to go and follow the orderly processes
to do that. So --
THE COURT: I think the language -- beg your pardon.
I think the language from the Federal Register -- and it says
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this more than once -- is that: The government is seeking to
facilitate the orderly processing at ports of entry that takes
into account resource restraints at ports of entry and in U.S.
detention facilities.
Now, my question for the government is: How would you
describe the state of the record as to whether the ports of the
entry are either, on the one hand, capable of processing what
by definition will be an increased flow of asylum applicants,
or on the other, whether they are backed up?
Or isn't there in the record a statement from the Director
of Homeland Security -- although it was not put in by the
administration, it comes from her -- that the government is
metering people at ports of entry?
And isn't that inconsistent with the government's stated
goal as it's expressed in this interim rule?
MR. STEWART: Your Honor, processing at ports of
entry, it does take time. You know, there can be delays at
various times. And there could be the need to shift
additional resources. And the rule acknowledges the need to
potentially do that.
There will be, you know, a need to see how some of
things -- some things work out, and where -- where additional
resources may need to be deployed.
But again, I mean, when you have people present at ports
of entry, you don't have a situation where you have CBP
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officers needing to chase people down, and ugly conditions, and
that sort of thing. So it does make it orderly.
And presumably, the processing could, ideally, be faster.
There could be needs to put more resources towards that. But
again, it's early in the process of this rule, and that can be,
you know, worked out soundly and in a controlled way.
THE COURT: Let's go to a higher level of abstraction
and talk about the law for a second. And this is a point that
actually I meant to discuss with Mr. Gelernt, and maybe I'll
do it in his rebuttal argument.
What is the burden on the government, if any, for its
stated justification to be supported by the record were
actually true?
You and I are debating right now -- or I think
"discussing" is a better word -- we are discussing how likely
it is that the government could meet its stated goal of
facilitating orderly processing of asylum applicants at ports
of entry. And we could have the same discussion with regard to
the asserted ground that the government wants to negotiate a
safe third-country agreement with Mexico. I could ask you how
likely, on the record, the government is to actually achieve
that goal.
But these discussions beg the question of whether the
government has a legal obligation to -- for its asserted
justification to be true, or for it to be supported by the
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record. And I don't know -- and it would be useful to me to
know what you think that burden, if any, is. And for the
plaintiffs to tell me the same thing.
MR. STEWART: Your Honor, maybe on rebuttal I can
more crisply articulate how I would put that in terms. But I
think it would be very light, in whatever it is here in this
context, where you have matters at the border in which the
executive branch exercises great authority and discretion.
Particularly matters that are so well-documented in the
proposed rule, they're areas of broad authority and
discretion.
THE COURT: Ah, ah, "so well-documented"? That's my
question.
MR. STEWART: The rule well-documents the problem,
Your Honor. It is a problem that's causing great strain on
our already backlogged --
THE COURT: It makes certain assertions. And my
question is: To what extent do those assertions need to be
supported?
To say something is true is not to make it true.
MR. STEWART: Your Honor, I don't think that the
plaintiffs in this case have actually gone after the actual
factual grounds in any meaningful way on which the rule
actually relies.
The attacks that they make are: Oh, you know, numbers of
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apprehensions or appearances at the southern boards are down,
overall.
This addresses with more specificity --
THE COURT: I might conclude otherwise. And I'm
giving the government an opportunity to tell me what standard
I should apply.
MR. STEWART: I'll try to have a more crisp
articulation of that, Your Honor, if I may think about that
for a little bit?
THE COURT: Yeah.
MR. STEWART: I appreciate that, Your Honor. Thank
you.
THE COURT: Yeah.
MR. STEWART: The numbers in this case show,
Your Honor, and as the rule explains, many of this group that
transit Mexico and cross unlawfully between ports of entry do
not even apply for asylum. Many fail to show up at their
hearings. And those who do, end up getting asylum in very
small numbers, because these claims regularly lack merit.
This claim -- this strain on our system has compounded a
backlog, drawn resources and attention away from other
meritorious claims of the many hundreds of thousands of cases
pending, and uniquely strains the immigration system. These
are kind of the central reasons for this rule. This is what
it's targeting, and this is what it's -- what it's doing.
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THE COURT: The rule -- the rule is predictive of the
things you just said. It says: These bad things are going to
happen, and so we need to implement this rule. You're using
the present tense.
Is there anywhere in the record from which I could find
support for the notion that the system is now currently being
overwhelmed by the caravan, or asylum-seekers from what the
government calls the "Northern Triangle"?
MR. STEWART: I mean, the numbers -- it explains, you
know, in fair terms, Your Honor, that --
THE COURT: This is what I did to Mr. Gelernt. I'm
just looking for support in the record.
Is there record information that I could cite that says --
that is supportive of the contention that, as you said a moment
ago, that the strain on our system has compounded a backlog and
drawn resources and attention away from other meritorious
claims, et cetera?
MR. STEWART: The -- the main areas, Your Honor, are
on Pages 55945 to -947. Among other things, those pages
catalog the large numbers of folks at issue here who are able
to enter, get possible federal -- credible fear screenings.
They sap detention resources which are limited and often
difficult, especially in the case of family units, which have
been rising above -- or have risen, at times, above previous
years. That many of -- many in this group are able to be
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released once they have positive credible fear determinations
and stay in the country for months, even years, even though
they don't have an entitlements to be -- they are not
ultimately found to have a meritorious asylum claim.
This adds to what is already, I believe we say, the rule
says that -- -946, the 800,000-plus cases pending in the
current backlog of Section 240 proceedings, over 100,000 of
which involve nationals of Northern Triangle countries.
So those are a few points, Your Honor. It also details
the relative lack of merit of a lot of these claims that are
the target of this particular rule.
And I could also add additional details. But I would
point to those pages in particular, and the page or so before
and after those, Your Honor.
THE COURT: Thank you.
MR. STEWART: Your Honor, moving to some more
fundamental legal points here about why this is a very, very
light burden for the executive branch to meet, it's because
asylum is not a mandatory obligation. It's a discretionary
benefit that comes with -- you know, comes only with a
favorable exercise of discretion, after numerous criteria are
met.
And it's something that --
THE COURT: And, and where are you locating this
burden? Is this the government's good-cause burden to
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dispense with notice and comment? Is it a burden that
relieves the executive branch of avoiding a conflict, a
statutory conflict?
When you say it's a light burden, which of the claims or
defenses are you now addressing?
MR. STEWART: I'm addressing the merits of the
Immigration and Nationality Act claim.
THE COURT: Okay.
MR. STEWART: I can go to good cause and foreign
affairs if you would like.
THE COURT: No, I just want to make sure I'm
following the argument.
Is the point that if the government meets what you've
described as a very light burden, then if I find that there's a
conflict between the rule and the proclamation as they operate
together and the language of the INA, that I cannot be worried
about the conflict?
MR. STEWART: Your Honor, I'm not going to concede
that there's a conflict, and I would disagree that there's a
conflict. I'd like to be able to explain why there's no
conflict.
THE COURT: You can do that later. I'm just trying
to figure out what -- what is it that the -- that the
government doesn't have to -- where is the low burden? A low
burden to do what?
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MR. STEWART: The low burden to erect discretionary
conditions or limitations on eligibility for granting asylum.
That's in the statutory language. That's
Section 1158(b)(2)(C).
1158(b)(2)(A), I believe it is, Your Honor, makes clear
that asylum is discretionary, it may be granted by the Homeland
-- by the Secretary of Homeland Security or the Attorney
General. And bars to eligibility can, in turn, be erected, so
long as they are consistent with Section 1158, the statute.
Section 1158 erects very few barriers. What it does erect
barriers on is in many -- the granting of asylum. The Attorney
General or the Secretary can't grant asylum to certain
categories of offenders, and other types of people who fit --
fit different categories.
In addition, there is a lot of discretion to erect
additional bars, so long as they're consistent. There's
nothing inconsistent by erecting a bar for someone who does not
just enter, but enters in a particularly problematic manner, as
determined by a presidential proclamation.
And that's a point that I think I would like to emphasize,
Your Honor.
THE COURT: The government makes a distinction
between Congress saying that: You can apply for asylum,
regardless of -- whether you came in at a port of entry.
You'd think, after the amount of preparation for this hearing,
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I could actually say the statutory language. But it's
escaping me. Sorry. I know you know what I mean.
MR. STEWART: Yes, Your Honor.
THE COURT: And, and then the President and the
Attorney General saying: Well, they can say that, but we can
deny asylum on the same ground.
Doesn't the second thing render the first thing a nullity?
I'll give you an example. Let's say we said -- we had a
Congressional statute that said: You can come to the hearing at
the federal courthouse in any vehicle. You're allowed to ask
to come into the courthouse if you come in any vehicle.
But then we have a rule that someone passes that says:
I'll tell you what, you can ask, but if you came here on a
bicycle, you're not coming in. You're not.
What's the point of saying the vehicle that you use to get
here doesn't matter? How does it not render -- I'm not doing
as elegant of a job with this as I'd like, but how does it not
render the expression of Congressional intent a nullity?
MR. STEWART: It would be as if you were to say: You
can come and enter the courthouse so long as you do so,
consistent with the remainder of what I'm about to -- you
know, the conditions I lay out.
So, too, here, Your Honor, with Section 1158(a)(1) it says
that as a general rule -- it's captioned "In general" -- an
alien who's physically present in the United States may -- dot,
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dot, dot -- may apply for asylum in accordance with this
section.
So that means in accordance with other provisions of 1158.
Those include, for example, the immediately-following
exceptions for even being eligible to apply for asylum. So
yes, there's a broad general rule under 1158(a)(1), Your Honor,
to be able to apply for asylum. But that's immediately
qualified by several exceptions just for applying.
THE COURT: "In general" is a title. It's not part
of the paragraph. So to the extent that you're suggesting
that Congress meant to draw a distinction, I don't know that
the argument is supported by the statute.
What the statute says -- and I now have it in front of me,
and I wished I had a moment ago --
"Any alien who is physically present in the United
States or who arrives in the United States, whether
or not at a designated port of arrival..."
Et cetera.
"...may apply for asylum."
What's left of that? I guess that's a better way of
asking the question. If this rule is valid, what's left of
that expression of Congressional intent?
MR. STEWART: Your Honor, you didn't mention the last
several words that follow that which says:
"...may apply for asylum in accordance with this
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section."
1158 proceeds to make that general rule subject to a fair
number of qualifications, exceptions, establishment,
eligibility --
THE COURT: It absolutely does.
MR. STEWART: Yes.
THE COURT: None of them have to do with port of
entry.
MR. STEWART: Your Honor, it's not inconsistent with
that -- well, first of all, Your Honor, what I would say there
is that it would render meaningless that -- under that --
under that view, it would be anybody can apply for asylum who
falls within the six statutory bars, but they would still
never be able to get asylum.
And, you know, still -- that -- you know, there's no
argument there that that somehow guts 1158(a)(1). It's still a
general rule that you may apply, but then at the eligibility
stage, other qualifiers and other factors come in.
And one of those qualifiers, Your Honor, is 1158(b)(2)(C),
which says (As read):
"The Attorney General by regulation -- may by
regulation establish additional limits and conditions
consistent with this section under which an alien
shall be eligible for asylum under Paragraph 1."
And that's what he's done here, Your Honor.
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And if I can --
THE COURT: Well, it has to be consistent with the
section.
MR. STEWART: Right.
THE COURT: I mean, it would be -- we don't have a
situation where Congress said in Subsection (1): Hey, even if
you've been convicted of a felony -- you know, regardless of
whether you've ever been convicted of a felony, you can come
in.
They put that down below. They say: If you've been
convicted of a felony, you're not eligible.
There's nowhere -- I guess my point is the difficulty I
have with the government's argument is that there's nowhere
else later in this -- yes, yes, there are exceptions. But none
of them have anything to do with this explicit carve-out in any
way.
But I'll move on because now I feel as though I'm perhaps
debating this with you more than asking you.
Let me turn to something else.
MR. STEWART: Can I add one little point on that,
Your Honor?
THE COURT: Sure.
MR. STEWART: I don't want to --
THE COURT: No, no, please.
MR. STEWART: The point I would add, Your Honor, is
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that I think it's undisputed and under a matter of the BIA's
decision, it's clear that manner of entry can be relevant, and
therefore, is certainly dispositive of asylum eligibility in
some cases.
There's no -- there's no distinction that can be drawn
with that, no principal distinction that can be drawn with
that, and making manner of entry in a particular subset of
cases a categorical bar.
And here, Your Honor, the point I want to emphasize --
THE COURT: Well, let's talk about that for a second.
Doesn't -- doesn't overwhelming authority say that while
manner of entry can be considered, it is to be given very
little weight?
And so my question would be, first: Is there any
authority for the proposition that it could be given
dispositive weight?
And -- I guess that's the question. I don't have a second
question. If I did, it would be: Wouldn't that, nonetheless,
bring whatever court said that, if one ever did, into conflict
with the explicit language of the statute?
But I don't think there is a court that's ever said that.
MR. STEWART: No, Your Honor, it's -- the idea that
you can bar subsets of people based on manner of entry,
there's not any sort of overwhelming authority of that.
The Pula decision recognized it can be a factor. It did
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that as a general matter in individualized cases. There's
nothing in the statute that prevents the Attorney General and
the Secretary, in their broad discretion, to categorically bar
that.
And if I can emphasize -- this is the point I want to
emphasize, Your Honor, is that this rule, accompanied by the
proclamation, do not make aliens ineligible for asylum, based
merely on illegal entry. It's not an illegal entry, per se.
Rather, it makes them ineligible for asylum on a separate
and additional basis. That -- not just that they illegally
entered, but that they contravened a particular presidential
proclamation suspending or limiting entry, based on the
President's particularized foreign-policy-laden determination
that that entry would be detrimental to the national interest.
So it's a heightened different-in-kind entry. It's not
manner of entry, per se. It's different, and it warrants the
ineligibility bar imposed here.
THE COURT: What does the presidential proclamation
add to illegal manner of entry?
MR. STEWART: For one thing, it points out that this
is the -- this violation of law implicates the national
interest in a particular way.
Two, it notes and tries to encourage potential
interdiction efforts to prevent this problem, and kind of
facilitate relations with Mexico.
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And again, it puts the President's backing in his --
pursuant to his own broad authority under 1182(f) and 1185(a),
to find that this is a serious issue, and it needs to be
addressed.
THE COURT: I think because the plaintiffs have
stated that they are not challenging the proclamation
independently, probably I don't reach the issue, because
there's no longer a controversy before the Court.
But, but because that wasn't clear when I took the bench,
let me ask you the same question I asked your opponent. And
that is: in the absence of the rule, does the proclamation have
independent legal effect?
MR. STEWART: It does, Your Honor, especially with --
with respect to the potential interdiction discussions and
efforts. It does embody, you know, a particularized
determination.
What I would say, Your Honor, is that I don't -- the
proclamation is what triggers the ineligibility bar under the
rule.
So, I mean, there's really no basis to -- invalidating the
rule doesn't make a lot of sense. It should be, if anything,
saying that there's an issue with the proclamation such that
another proclamation could be issued, potentially.
But I would say the proclamation does add, but there is a
lot of the two working in tandem here, Your Honor.
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THE COURT: The ports of entry -- the ability to seek
asylum through ports of entry is contained in the
proclamation, but not the rule. Right?
MR. STEWART: Um, I believe -- that's right,
Your Honor. I mean, it is what's expressly addressed, but
they kind of, you know, interlock.
THE COURT: So is it also correct that there is no
check in the rule, itself, on the President's ability to deny
asylum to anybody who enters at the southern border,
irregardless of where they enter?
MR. STEWART: Your Honor, I don't know what that
argument means by the plaintiffs. There's nothing in the
proclamation that purports to deny asylum to anyone. It --
you know, it suspends and limits entry.
And there is an effect of you know, whether or not -- it
doesn't get into the issue of: Oh, could the President,
himself --
THE COURT: I think the argument goes to the question
of how much authority the interim rule purports to confer on
the President.
Anyway, I don't have a more specific question for you.
MR. STEWART: It's really the departments exercising
their authority, Your Honor, to, under Title 8, and doing so
based in part on a presidential determination that the
President is, himself, expressly statutorially authorized to
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make.
Your Honor, if I could turn maybe to some of the APA
procedural issues?
THE COURT: Sure.
MR. STEWART: And I want to hopefully save some -- a
decent amount of time for rebuttal. But really quickly,
Your Honor --
(Reporter interruption)
MR. STEWART: Thank you.
First, Your Honor, on the issue of good cause, the
declarations and the plaintiffs' briefing do not get to the key
good-cause argument that the preamble of this rule advances.
That good-cause argument is not, you know: Oh, just
everyday continuation of normal migration patterns. Rather,
the concern is that announcing an ineligibility rule but not
giving it immediate effect would lead to a surge in dangerous
and unlawful border crossings in order to evade this asylum
ineligibility bar.
That is logical; it makes sense. When we have a situation
where I believe about a thousand folks are entering unlawfully
between ports of entry at the southern border, that means on
average, every day, you have another thousand who are within
range.
By plaintiffs' own declarations, it's pretty clear that
the communication streams to -- whether it be to caravans or
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others who are transiting toward the southern border, hear
about that things. And it's really the risk of a surge and all
the resource difficulties and the dangers to both life and
safety on both sides of the border that that occasions.
On foreign affairs, Your Honor, the plaintiffs and their
declarants also ignore, give short shrift to the key foreign
affairs here. We are not just saying, Your Honor, that: Oh,
because this involves immigration, it therefore automatically
meets the foreign affairs exception.
What's really trying to go -- you know, be facilitated
here, Your Honor, are negotiations with Mexico and with the
Northern Triangle countries to deal with this difficult problem
of, you know, each country taking responsibility for its own
nationals, for providing asylum, and that sort of things.
THE COURT: In Doe versus Trump, my colleague
Judge Robart, in Washington, rejected the assertion of the
foreign-affairs exception on the ground that the government
had not provided any evidence to support the assertion. So
this is similar to the question that I asked you before about
a different aspect of the government's argument.
And the question is: What obligation, if any, is there on
the government to support an assertion of the foreign affairs
doctrine? And if you say none, then that's your argument, and
then you can -- you don't have to say anything more.
And if you say it is anything other than none, the
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question is: How likely do you think it is that the United
States will be able to negotiate a safe third-party-country
agreement with Mexico? And, what basis is there for thinking
that it's likely?
MR. STEWART: We don't need to establish any definite
likelihood that it will be established, Your Honor.
THE COURT: Is saying it sufficient?
MR. STEWART: Your Honor, I'm not sure that saying it
would be sufficient, but it's not what the issue is here. It
says -- we are --
THE COURT: It is -- if I'm asking you about it, it's
the issue here.
MR. STEWART: Your Honor, the rule explains that we
are in diplomatic discussions with Mexico and the other
countries, to try to deal with this problem. And we can't
guarantee that that will bear a fruitful agreement, that that
will resolve all issues, but we're trying, we're hopeful --
THE COURT: Can you please explain the relationship
between denying asylum to those who do not enter at a
designated port of entry and the likelihood that negotiations
with Mexico to achieve a safe-third-party-country agreement
will go up?
MR. STEWART: Sure, Your Honor. I think it goes
beyond the safe-third-country agreement. But if I can give
you my kind of foreign-affairs pitch here, it's simply that
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Mexico has a responsibility for the people transiting its
country and for its border with the United States. One aspect
of that responsibility is not to turn a blind eye to people
who transit through that country, and then break United States
law by entering.
By closing the border between ports of entry and requiring
channeling to those ports of entry, the executive branch has
here recognized the importance of these principals, these
obligations, as well. And it has signaled to Mexico that:
These are important to us, you can't just have this happening,
you need work with us to find a more comprehensive solution
that hopefully will be a safe-third-country agreement.
It will, in all events, hopefully produce something, you
know, fruitful that helps address this shared problem that by
plaintiffs' own declarations, you know, is one that is
significant and is worth addressing.
It is an international negotiation. We can't guarantee a
result. But it is intimately tied with the President's
foreign-affairs agenda, and his effort to do this.
If I may, Your Honor, if there's nothing immediate, can I
save the rest of my time for rebuttal?
THE COURT: Sure, you may. Thank you for being so
responsive to the Court's questions.
Ladies and gentlemen, the Court will be in recess for 15
minutes. Thank you.
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THE CLERK: All rise.
(Recess taken from 10:24 a.m. to 10:43 a.m.)
THE COURT: All right, let's go back on the record.
Mr. Gelernt.
MR. GELERNT: Thank Your Honor. If I could start by
answering some of your questions about the record.
In the proclamation -- in the rule, itself, the preamble,
at 55935, it shows that 6,000 people who EWI'ed -- sorry -- who
entered without inspection, received asylum. And 74,000 passed
their CFI, the credible fear initial screening. So those are
the numbers that I think we are looking at with this rule in
one year.
I know Your Honor had asked about burdens. And I want to
just mention a couple of cases that I think are relevant to the
government's burden. One is on the good cause.
I think the D.C. Circuit in the Sorenson case which we
cite lays out pretty clearly what the good-cause inquiry is
about and what the government's burden is. And talks about how
it needs to be meticulous and demanding, it's narrowly
construed. It's an extremely demanding burden. So I think the
Sorenson case is what we would cite for that.
On the foreign-affairs exception, I think the Ninth
Circuit has a particularly demanding standard. And I would
cite the Court to the Yassini case from the Ninth Circuit,
about the Iran hostage crisis.
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THE COURT: I love Yassini, because both sides love
that case. Every now and then, you get that. It's like --
anyway.
MR. GELERNT: Yeah. Well, for our part, we would
cite Footnote --
THE COURT: You like Footnote 4.
MR. GELERNT: Exactly. So I don't need to tell
Your Honor about it, then.
THE COURT: I read the case.
MR. GELERNT: On the burden on the INA claim, I
wasn't sure exactly what the government was saying its burden
was, but what we would answer it this way, is, that where
Congress has addressed the precise issue, no amount of
evidence the executive branch can put in would allow it to
override Congress. Congress has made the judgment; they've
put it in the statute.
I don't hear the government to say that the Attorney
General can override Congress if it has -- if the Attorney
General had enough evidence. It's a fight about what the
statute means.
And I think Your Honor has pinpointed what we believe are
the holes in the government's argument about the express
language being inconsistent with their role.
THE COURT: Let me ask you a standing question. And
I think Mr. Stewart probably wanted to hammer away a little
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bit at the government's standing argument. But I had a lot of
questions for him. So perhaps we will hear more of that on
rebuttal.
But my question for you is: Is there any way for
asylum-seekers who enter between designated ports of entry who
I'll just call "third-party plaintiffs" for purposes of our
discussion, is there any way for them to challenge the interim
final rule in their immigration proceedings?
MR. GELERNT: Your Honor, as I understand it, I think
the government may say that there's limited judicial review
when you're putting in an expedited removal case, which is
what's going to happen -- expedited removal proceeding, which
are those summary proceedings at the border.
My understanding from past cases, and I think from this
case as well --
THE COURT: I think after the IJ level, there's no
judicial review. And I think it says that.
MR. GELERNT: That's the government's position.
THE COURT: Yeah, I think that sentence is in there,
either in the interim rule or the proclamation. I'd have to
go back.
MR. GELERNT: Just to be fair, to put the Court on
notice, we are challenging that, saying there has to be
judicial review, unrelated to this rule. That's a case --
that's an issue that goes way back. But at the moment,
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Your Honor, that is the law of the land, that there's no
review of expedited removal.
THE COURT: Okay. So let's -- let's just assume that
what happens is if the rule goes into effect, that an alien or
an immigrant is apprehended having crossed at other than a
designated port of entry, and pursuant to the rule, is deemed
not to have a credible fear, and placed into -- you know, and,
given a reasonable-fear interview, and if found not to meet
that standard, placed into expedited removal.
Anywhere in there, would that person have the opportunity
to challenge this final rule?
MR. GELERNT: The government's position is: No, they
would not. So they would be removed. So I think that is what
we're looking at is individuals now being removed, without
even a chance to challenge the rule.
And I think, you know, the government may take issue with
jurisdictional positions -- I don't know what they're going to
say about jurisdiction -- generally is that there's no
jurisdiction over that. But you certainly could issue a TRO, a
preliminary injunction, and reserve that question.
But right now, Your Honor's exactly right, that is the
government's position. They're going to get that expedited
removal, and the government is going to say: You can't apply
for asylum and -- based on the rule, and then you're going to
be removed.
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And that is what we're seeing now in the last few days.
THE COURT: If this case were not present, in other
words, if this case had not been filed and we were not having
our discussion, could that individual asylum-seeker file a
habeas case in Federal District Court if they couldn't get
relief directly in Immigration --
MR. GELERNT: The government's position is: No. And
so that's why I think we're here, seeking a TRO.
And I just want to raise one point that you brought up
about third-party standing. What we have learned in the last
48 hours is that there's an acute problem on the borders in
Mexico, where the Mexican government is not letting
unaccompanied children get on the waiting list. Even though
the list is so long and they're in danger, but they're not even
allowed to be on the list.
So one of our plaintiffs, A.O.L., is going to represent
them. But I think in order for them to challenge, they
couldn't even get into the country because they're not allowed
on a port of -- they're not allowed to apply at a port of
entry.
So we believe, in addition to all the other standing
arguments and zone of interest, which we believe we satisfied,
that there is third-party standing. And it's classic
third-party standing where these children who are in Mexico
would not even be in those expedited-removal proceedings. Even
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if there were habeas, they wouldn't be able to access even the
IJ proceedings, the AO and -- asylum officer and IJ
proceedings.
So I think that's why we believe there's a critical need.
There's just too many people now in danger. Those kids are in
desperate danger on the Mexican side.
And again, that goes back to some of Your Honor's points
about putting this in place so quickly, before there's even a
system to handle people at ports. That's even assuming that,
ultimately, this rule would channel people.
The other point I would make is that I think Your Honor
pulled out the exact phrase in the promulgation -- the preamble
that's critical to understanding the disconnect between the
rule and what they're trying to do. And that's where they say:
We're talking about writ large, the asylum process.
I mean, that really seems to be what's going on, is they
don't like the asylum process. That's fine; the administration
can have that battle with Congress. But ultimately, I think,
as the government concedes, the proclamation is not what's
denying asylum. The Attorney General can have that fight with
Congress. But there's really no connection between the rule
and the problems they see in the asylum process.
Now, we believe the asylum process is working. Congress
made it clear that they wanted a low threshold at the border in
these summary hearings, because someone is traumatized, they
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don't have counsel, they're not going to understand how to
present their claim. And so Congress wanted a low threshold in
that first hearing.
But ultimately, this is more a fight between, I think, the
executive branch and Congress. Congress has made a decision;
Congress can alter it. But right now, Congress has been very
clear that people who enter between ports are allowed to apply.
And I think saying that they can apply but not eligible,
I'm not sure I can add anything to what Your Honor has said
about that would render it a nullity.
Unless there are further questions, Your Honor, I think I
would sit down, then.
THE COURT: Thank. I don't have any --
MR. GELERNT: Thank you, Your Honor.
THE COURT: -- more questions. Thank you.
Mr. Stewart.
MR. STEWART: Thank you, Your Honor.
A few points, Your Honor, that I just want to hit home
before I sit down.
One is that one of the strange things about this suit was
that it was brought -- it was filed the very day that this
regulation came out, before the rule and proclamation had
actually been applied to anyone. So we have this odd situation
where we have organizations that are alleging speculative harms
that may not come to pass. You know, they haven't waited to
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see how the actual rule will play out. You know, they're not
-- they're asserting they're going to be injured in certain
ways.
And we don't really have the situation of somebody filing
suit in the concrete context of having the rule applied to
them. Those suits would be -- to the extent there would be a
systemic challenge to those folks, the exclusive venue for
those would be in the District of Columbia Federal Court, where
challenges to the validity of the expedited removal system
could be processed.
THE COURT: Do you disagree, by the way, with
Mr. Gelernt that an individual asylum applicant who were
apprehended after -- excuse me -- who was apprehended after
crossing between designated ports of entry would not have an
opportunity to challenge the interim final rule? In -- at any
point in the immigration proceedings? Or, Mr. Gelernt would
say otherwise?
Well, actually, he said it was your position. He didn't
tell me what his position was. But that's what he said your
position would be. Is he right?
MR. STEWART: No, Your Honor, I think the right
challenge for that would -- again, it would be in the District
of -- it would be in DDC. That's where a systemic challenge
-- you know, judicial review by somebody who is subject to an
expedited-removal determination, that's where those venues
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lie, just given the need for national uniformity. But you
actually need a person who's been subjected to the system. So
that would be the way to challenge that.
There's also --
THE COURT: Would that halt the person's expedited
removal?
MR. STEWART: It would -- I mean, it would depend on
what the Court would say there, Your Honor. I mean I don't --
I won't concede that the Court could properly do that, but I
would add that the Court --
THE COURT: So a court could do it improperly? I
mean, I'm not trying to argue with you, but I'm just trying to
figure out who -- just what standing is about. Who has the
right to stand up in court for these people. Who lets them do
that.
So does the government -- let's put aside what Mr. Gelernt
would say if he were arguing the case in the District of the
District of Columbia. Okay? What would you say?
You're at the podium, and District Court says to you: Is
this person -- hey, they just filed this lawsuit, the person's
in expedited removal. Are you going to stop the expedited
removal?
What would the government's position be?
MR. STEWART: I'm not going to commit to a position
on this at that time, Your Honor, in part, because I would
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need to see what the situation is of the person challenging
the expedited removal.
Again, as we've emphasized, this is a premature suit, but
it is -- a challenge to the expedited removal system is venued
in DDC. This court doesn't have authority to touch that
system.
And the District of Columbia is authorized and directed by
statute to proceed very quickly in dealing with those kinds of
suits. It is the -- it is the place where these suits have
happened before. One attempted such suit was filed not that
long ago, a couple months ago, I want to say.
The D.C. Circuit and the DDC have spoken authoritatively
to this question, and pointed out the problems of organizations
trying to seek relief on behalf of people, because what that
really is is somebody -- you need people who are subject to
this determination. And the DDC can properly address those
things.
On the issue of relief, Your Honor, you asked --
Your Honor asked Mr. Gelernt earlier what the nature of any
relief would be. I would emphasize that the plaintiffs were
asking for extraordinarily -- extraordinary emergency relief,
halting in its tracks an important executive branch policy,
based on abstract, remote, self-inflicted theories of injury.
And any relief that this Court could provide would have to
be sharply limited to their particular circumstances. At most,
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it would have to apply to the plaintiffs, themselves, and
people who are demonstrably their clients and, you know, would
be supposedly connected to the harm that they allege.
THE COURT: I'd make these organizations the most
popular lawfirms at the border if I did that, wouldn't I?
This rule doesn't apply to you or your clients, but it applies
to every other law firm that might be trying to help
asylum-seekers? How's that going to work?
MR. STEWART: I'm not -- I'm recommending denying the
TRO, Your Honor, that's our position, but --
THE COURT: No, I get that. But this is a
manageability question.
But you're saying if you don't deny it I should just apply
the relief to them. And I'm just wondering how that would
actually work, in practical effect.
MR. STEWART: I think anybody who would -- again,
it's very hard here, Your Honor, because we have a situation
where we have speculative theories of harm where we don't know
how these -- this asylum application -- we don't have
confirmation that this asylum application situation is going
to play out the way hypothesized by the plaintiff
organizations.
THE COURT: Let me ask you the same case-management
point that I asked Mr. Gelernt. And that is: Let's say I do
issue a temporary retraining order. Then what?
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Do you anticipate that there would be further proceedings?
Would there be another hearing with regard to a preliminary
injunction? Would the parties take discovery from each other?
What do you think should happen, if I do issue a TRO?
MR. STEWART: This would be an administrative-record
case, Your Honor. The Court should -- if the Court were to
grant a TRO in any sort of -- in any sort of respect, it
should have administrative-record and preliminary-injunction
briefing as expeditiously as possible to get this matter
resolved.
It's a very important initiative. It's --
THE COURT: How quickly is the government prepared to
produce the administrative record?
MR. STEWART: I could check on that, Your Honor, but
it could be -- you know, I'm -- you know --
THE COURT: Everyone's acting like they're surprised
this might lead to a preliminary-injunction hearing. But
anyway, okay. So we'll take that under advisement.
MR. STEWART: Right, Your Honor. We'd be prepared
to, you know, move in a matter of days, you know,
expeditiously. It's difficult for me to stand here and say,
you know, a couple of days --
THE COURT: Fair enough.
MR. STEWART: -- after a truncated week, what the day
would be. But we'd want to move very expeditiously if that
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were the direction things were headed in.
THE COURT: All right.
MR. STEWART: I would emphasize, Your Honor, you
asked earlier about the burden on these factual assertions. I
think Mr. Gelernt actually somewhat hit on this when he
emphasized that the nature of his challenge is a legal one.
What I would say is that to the extent there is some
challenge on the accuracy of the government's assessments or
predictions, that would be an arbitrary and capricious type
challenge, I believe.
That kind of challenge has not been brought. And it would
need to await the production of the administrative record, in
any event. But it's just not at issue in this hearing. And I
think Mr. Gelernt, in effect, said that when he said that the
nature of his challenge is really legal.
Zone of interest, Your Honor, just briefly, you know, we
hit this in our briefing, somewhat gets to some of the standing
issues, too. But -- which I've also hit. But the zone of
interest here, the people who would really be affected by this
rule are, you know, the aliens, themselves. The immigration
laws are really aimed at the interests of aliens.
You know, there will presumably be aliens who fall within
the zone of the interest in these statutes. But organizations
who fall into this category just do not fit within the aims of
the immigration laws in the same way.
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I would also add that challenges to expedited or to -- you
see other indicators in the statute of expedited removal
challenges are channeled to D.C. As I've said, challenges to
removal often take an individualized form. And there's just
not this kind of organization -- you know, broad organizational
theory for this subset of cases.
And also, just on standing more generally, Your Honor, I
haven't seen any limiting principle that the plaintiffs had
offered to the Havens Realty point about just -- if they were
allowed standing here, then any organization that kind of has
its mission in the area of law that changed could claim
standing because it would, you know, affect what -- you know,
affect their mission, and they could choose to divert resources
in response to it.
Another point, Your Honor, I don't think that you had
mentioned this much, but this was a big theme, at least in the
briefing, and I don't know if this has been mentioned except by
Mr. Gelernt earlier today, is, I want to emphasize that a theme
in the ACLU's briefing has been -- ACLU and colleagues'
briefing, has been that that this rule effectively returns
people to their persecutors and torturers.
I want to emphasize, it does no such thing. Asylum is a
discretionary benefit. The key protections for avoiding return
to a country where someone is going to be persecuted or
tortured are statutory withholding in removal and protection
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under the regulation implementing -- the regulations
implementing the convention against torture.
THE COURT: Persons who are suffering from torture
don't also make asylum claims, sometimes?
MR. STEWART: Some do, Your Honor, some do. But
again, asylum is a discretionary benefit. And the capability
of torture claims still is there in full force.
THE COURT: It's discretionary, but it has a lower
bar.
MR. STEWART: It has a lower bar for the showing of
demonstrating refugee status, Your Honor. But there are
also -- not to change uses of the word "bars" -- other
prohibitions on it, and it also requires an ultimate favorable
exercise of discretion.
Again, it comes with a lot of benefits, Your Honor. But
the --
THE COURT: But the discretion is reviewable. It's
easier to get. But it's discretionary. And so the effect of
this would be that there might be some persons -- I mean, my
question is: Isn't it true that the effect of this would be
that there might be some persons who are subject to torture,
who might qualify for these are other forms of relief? But
because, in the view of the authorities, they are not able to
meet what would now be the higher bar of mandatory forms of
relief, they don't get relief.
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And it's not because they are not entitled to it, under
any circumstances. It's that they are not entitled to it under
the form of relief that has a lower bar.
Isn't that what would happen?
MR. STEWART: Your Honor, I think it's a shift --
it's a different way of exercising discretion over an
already-discretionary benefit. And when you have a large
system, you know, you work with a system as perfectly as you
can, you know, to hammer things out in individual cases.
But it meets the United States's obligation, and it
properly allows people who are claiming some kind of
persecution or fear that's cognizable under the law to make
those claims.
The plaintiffs repeatedly insist that, you know, a great
many of the people whose interests they are claiming to look
after have very strong claims about torture and persecution.
They can still bring those claims. The problem that we're
going after with this rule --
THE COURT: Does the government contend none of them
that would have been granted in the past will now be denied?
That is a yes-or-no question.
MR. STEWART: I don't think we, you know -- granted
what, Your Honor?
THE COURT: Does the government contend -- your
argument -- I take your argument to be: Look, the plaintiffs
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can still bring these claims. What's the problem?
And my question for you is: Does the government contend
that some claims for relief -- that no claims for relief that
would have been granted in the past will now be denied?
MR. STEWART: I can't -- I can't predict what will
happen, Your Honor. I mean, it just -- nothing changes as far
as the availability of withholding of removal or a convention
under the protection against torture. Those remain
unaffected.
It's just the discretionary benefit of asylum, which is --
brings with it a lot of other additional direct and collateral
benefits, is what's affected here. And it's affected in
response to a major, major crisis.
And I'd add that many people subject to asylum bars could
similarly have claims -- claims of, you know, persecution, for
example, that they're now, despite those claims, ineligible to
get because, say, they fall under one of the six statutory
bars. So there are circumstances in which people otherwise
eligible for asylum have been barred from asylum, as a
categorical matter.
This (Indicating), given the broad statutory authority and
the broad discretion in the executive branch, falls comfortably
within the legal authorization to do that.
THE CLERK: You have one minute remaining.
MR. STEWART: Thank you.
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See if I have -- I just emphasize, as I've said,
Your Honor, in rebuttal, that to the extent any relief were
granted, you know, it should be very limited, very carefully
tailored, and very sensitive to the extraordinary executive
branch interests of this case in addressing a serious crisis in
our asylum system.
But in addition to that, I would, as I've explained, ask
the Court to deny the TRO, and allow the rule and proclamation
to continue to their effect.
Thank you, Your Honor.
THE COURT: Mr. Stewart, thank you. Gentlemen, thank
you both for your arguments. Ladies and gentlemen, thank you
both for your briefing.
This matter is now under submission, and court is now in
recess.
(Proceedings concluded)
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Case 4:18-cv-06810-JST Document 45 Filed 11/20/18 Page 63 of 64
CERTIFICATE OF REPORTER
I, BELLE BALL, Official Reporter for the United States
Court, Northern District of California, hereby certify that the
foregoing is a correct transcript from the record of
proceedings in the above-entitled matter.
/s/ Belle Ball
Belle Ball, CSR 8785, CRR, RDR
Tuesday, November 20, 2018
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