Court filing
Transcript of Proceedings (Dec. 19, 2018 Hearing) — East Bay Sanctuary v. Trump
Filed December 19, 2018 in East Bay Sanctuary v. Trump; one of 67 filings from this case.
Record facts
| Court | N.D. Cal. |
|---|---|
| Filed | 2018-12-19 |
N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 108 · 2018-12-19 · Docket on CourtListener
Full text
Pages 1 - 32
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, PRESIDENT OF )
THE UNITED STATES, et al.,
)
)
Defendants.
)
)
San Francisco, California
Wednesday, December 19, 2018
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiffs:
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street - 18th Floor
New York, New York 10004
BY: LEE GELERNT, ATTORNEY AT LAW
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA
39 Drumm Street
San Francisco, California 94111
BY: VASUDHA TALLA, ATTORNEY AT LAW
CODY WOFSY, ATTORNEY AT LAW
JULIE M. VEROFF, ATTORNEY AT LAW
(APPEARANCES CONTINUED ON FOLLOWING PAGE)
REPORTED BY: Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR
Official Reporter
Case 4:18-cv-06810-JST Document 108 Filed 02/11/19 Page 1 of 32
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APPEARANCES: (CONTINUED)
For Plaintiffs:
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway - 7th Floor
New York, New York 10012
BY: BAHER AZMY, LEGAL DIRECTOR
For Defendants:
U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
P. O. Box 868 - Ben Franklin Station
Washington, D.C. 20044
BY: SCOTT G. STEWART, DEPUTY ASST. ATTORNEY GENERAL
EREZ REUVENI, ASSISTANT DIRECTOR
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Wednesday - December 19, 2018
9:30 a.m.
P R O C E E D I N G S
---000---
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 stand and make your appearances.
MR. STEWART: Good morning, Your Honor. May it please
the Court, I'm Scott Stewart on behalf of the defendants.
THE COURT: Good morning.
MR. GELERNT: Good morning, Your Honor. Lee Gelernt
for the plaintiffs from the ACLU.
THE COURT: Good morning.
Other counsel's appearances have already been noted for
the record and will appear in the minutes.
The matter is on calendar this morning for consideration
of plaintiffs' motion for preliminary injunction.
We aren't starting on a clean slate this morning. This
Court already considered the plaintiffs' motion for a temporary
restraining order, which I granted, and the Government then
sought a stay of that order in the Ninth Circuit.
In the course of resolving that motion, the Ninth Circuit
was called upon to decide whether the Court's temporary
restraining order -- this Court's temporary restraining order
was appealable because, in essence, it was sufficiently similar
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Case 4:18-cv-06810-JST Document 108 Filed 02/11/19 Page 3 of 32
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to a preliminary injunction. It decided it was appealable, and
then it expressed its view on the merits.
As a District Court, of course, I'm bound by any decisions
that were made by the Ninth Circuit. So almost all of the
questions that are before the Court this morning have already
been resolved twice, and I'm not allowed to disagree with the
Ninth Circuit as to an issue where they've directly reviewed
me, and I'm unlikely to disagree with myself since I also have
already decided these questions. So I would encourage the
parties to focus on those issues where they really feel there's
something new.
I recognize that there is likely to be substantial
disagreement about the issues that are presented this morning,
and so what I just said is not an ironclad rule. It may be
that the parties simply need there to be a clearer record or a
better record or they feel the need to make their record this
morning. That is fine.
I don't think the parties will need it because you're not
starting on a clean slate but, nonetheless, the parties can
again have 45 minutes each if they would like to argue.
I think the order -- the most sensible order of argument,
in light of the Court's temporary restraining order and in
light of the Ninth Circuit's order is for the Government to go
first and then the plaintiffs and then the Government and then
the plaintiffs, and then for me to take the motion for
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preliminary injunction under submission.
I don't have very many questions as I sit here now,
although some may arise during the parties' arguments. I do
think it would be helpful for the Government to tell me in
concrete terms what it thinks an injunction that only applied
to these plaintiffs would look like in the real world.
At the temporary restraining order hearing, I made a
comment that was sort of a joke, which was if I were to adopt
the Government's view of my power to issue a temporary
restraining order and confine it to these plaintiff legal aid
organizations, I would make them the most popular legal aid
organizations at the border.
Well, here we are at the preliminary injunction stage and
the Government continues to take the position that only these
plaintiffs are entitled -- that the Court is only able to
extend injunctive relief to these plaintiff organizations.
They themselves are not asylum seekers.
And so putting aside the Government's arguments that I
shouldn't give anybody any relief, if I get to the point where
I conclude that injunctive relief is available, maybe the
Government will simply repeat the arguments in its briefs; but
I honestly can't imagine that the Government thinks the right
result is to allow this particular group of legal aid
organizations to essentially go to the border and just
advertise that if you enter somewhere other than a designated
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port of entry, your asylum claim will automatically be denied
unless you're lucky enough to have one of these four
organizations represent you, in which case the rule and
proclamation are suspended. Perhaps I'm missing something.
Anyway, that's really the only question I have as I sit
here now, and I'll invite the Government to make its opening
argument.
MR. STEWART: Thank you, Your Honor. May it please
the Court, Scott Stewart on behalf of the United States.
Your Honor, we'll take the Court's invitation to not
retread ground that two levels of tribunals have hit. We'd
simply say that we continue to assert and maintain the
Government's arguments set out in it's TRO and its preliminary
injunction briefing on the various merits points.
The points I'd emphasize, Your Honor, are sort of, first,
I'd like to hit the remedy; second, I'd like to talk about just
some record-related items.
On the remedy, Your Honor, I'd start by emphasizing that
it's the plaintiffs' burden to show what -- the plaintiffs have
not come forward with a concrete proposal as to tailored relief
that would give their identified bone fide clients the relief
they're seeking. They've sought a broad indiscriminate
nationwide injunction, and our submission is it needs to be --
it needs to be limited to cover only specific aliens who the
respondent organizations identify as its actual clients who are
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Case 4:18-cv-06810-JST Document 108 Filed 02/11/19 Page 6 of 32
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in the United States who would otherwise be subject to the
rule. That's appropriate.
THE COURT: What if the Court entered a preliminary
injunction and there were a future client of one of the
organizations who is not presently in the United States but
crossed into the United States three months from now while this
case was pending and the preliminary injunction were in effect?
MR. STEWART: I think we'd have to see the plaintiffs
identify that person, Your Honor, and bring them within the
scope of the injunction. I mean, again, it's --
THE COURT: How many future proceedings do you
anticipate the Court would hold to amend the injunction? Would
it be a weekly roundup? I mean, how would that work?
MR. STEWART: Well, Your Honor, I mean, I think this
case is proceeding very quickly as far as resolution is
concerned about the final legality of the rule. I think --
again, part of the uncertainty here is because the lack of an
affirmative record by the plaintiffs as to whether they have
bone fide clients.
Again, organizations, it's vague. There's been no
proposed real tailoring on the part of plaintiffs. It's just
kind of, "Hey, we have clients that span some geographic
areas." Again, it's -- a lot of the unclarity is the lack of
an affirmative kind of proposal by plaintiffs to do something
more tailored.
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So I would emphasize that, again, there are no individual
aliens before the Court. No class is certified.
We'd acknowledge -- we'd emphasize, Your Honor, that as
Judge Bybee did in his opinion, that Judge Bybee emphasized
that third-party standing wasn't available so concerns of
individual aliens outside the United States who are allegedly
having difficulties applying for asylum are not a cognizable
group for any remedy. It needs to be actual clients who kind
of fit within the organization's own standing interests in
pursuing the mission and the like that have been identified
before this Court.
So I'd emphasize the remedy should be tailored to account
for just the organization's standing.
I'd also emphasize, Your Honor, that on matters of just
Ninth Circuit guidance and precedent, the Ninth Circuit, as
recently as December 13th, issued a panel opinion in the
California versus Azar case, which I believe the plaintiffs
cite in one of their record submissions. They cite it on the
good cause issues, but I'd emphasize that that case involved
conscious objections to contraceptive mandate issues. Even
while upholding the injunction kind of on the merits, on the
good cause merits, Your Honor, the --
THE COURT: I thought Judge Wallace's scope of
injunction language was very helpful.
MR. STEWART: Right, Your Honor, it was. It
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emphasized that even if there was -- if the Court finds a legal
violation, that doesn't mean a nationwide injunction. It needs
to be tailored to remedy the injuries of the plaintiffs before
the Court. He, therefore, limited it in that case to the
handful of plaintiff states. He didn't extend it beyond that.
Similarly here, I think the analogous remedy for good of
the limits of the plaintiffs' own standing, for the risks or
the damages that nationwide injunctions cause, the equities for
nonparties -- there are other parties in other cases in the
District of Columbia, Your Honor, who are also pursuing relief
and have been arguing their cases this very week, amended their
complaints.
THE COURT: Well, Judge Moss held off providing
anybody any relief until he saw what I did.
MR. STEWART: He did, Your Honor. He's waiting to see
what happens here and just otherwise to see what the
appropriate next step is, but he stands ready to move very
expeditiously and has set a conference for this Friday.
And my understanding at that hearing was he was willing to
move earlier if he needed to to address the interests claimed
by the plaintiffs in those cases. So a narrow injunction would
be consistent with just the extent of plaintiffs' own
interests, the development of law in other circuits, the rights
of nonparties, equitable principles about just the relief of
the judicial power in these kinds of cases.
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Again, I think it would be helpful if plaintiffs were to
come forward with something affirmative identifying how many
clients they have or what they -- just -- I mean -- just
something because right now it's somewhat vague, but I'd hit
those points on the nature of the remedy.
Another point, Your Honor, is that this case does not
challenge the new rules provisions as they affect expedited
removal proceedings.
THE COURT: Ah. I wondered when we'd get there.
MR. STEWART: And given --
THE COURT: Let's take a look. So let's take
8 C.F.R. 208.30. This is where you say the court's authority
stops because the court's authority extends only to 208.13;
right?
MR. STEWART: Correct, Your Honor.
THE COURT: Okay. So doesn't the amended 208.30,
subpart (e)(5), depend entirely on the existence of or on a
finding under 208.13?
My question is: Let's say that I accept your invitation
and I enjoin only 208.13. What's left of 208.30, subpart
(e)(5), in its amended form?
MR. STEWART: Right. I think -- to give that effect,
Your Honor, I think you need to -- it would require further
limiting of the injunction in -- somewhat in the ways I
described.
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THE COURT: Practically is there a difference?
MR. STEWART: I'm not sure there is a practical
difference, Your Honor.
THE COURT: Okay.
MR. STEWART: But, again, this is -- I still think --
I mean, maybe not as a technical practical matter as far as
consequence, but it does seem to me appropriate that the Court
should target its remedy at the finding of any legal violation
that the Court makes; and further narrowing of the remedial
order, Your Honor, would give some practical effect to that if
it were tailored as I've proposed.
If I can hit a couple points on the record, Your Honor.
First, I just want to emphasize, and I think our motion to
strike pretty thoroughly covered these issues, but this is an
APA record case. The plaintiffs never moved to supplement the
record or challenge the scope of the record. They simply
attached a lot of declarations and cited a lot of nonrecord
material in their submissions. Amici did somewhat similar
things.
The record rule applies here. There's no basis to
supplement the record. It shows what the decision-makers
relied upon, what they thought significant.
I think that some of those conclusions, they may not
affect Your Honor's conclusions but I will hit a couple of the
points there.
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Parts of the record, as we've cited, AR92 to 96, the MOU,
reflects that in the past the United States and Mexico have
understood that there's a need to address this problem on kind
of a diplomatic level. There's a need to regulate the flow of
persons on their common border as part of an agreement. There
was kind of a baseline for further effort and work.
I'd note at AR390 to 400, there's an article that explains
kind of the nature of the problem here; that even if maybe
aggregate numbers have been down in some years recently, that
the problem that the Government is facing and the country is
facing at the Southwest border is a dramatic increase in family
units, which are very hard to detain and end up being released,
which is a particular problem for the reasons we've identified
in our briefing and our past argument, because just they're
able to enter the country between ports of entry, pass credible
fear claims, but they don't actually have in the bulk of cases
meritorious claims. And as the agency, we're entitled to make
that conclusion.
THE COURT: Let me ask you about that. The Government
says somewhere, I don't have the page cite right in front of
me, but it says essentially that one benefit of this rule --
and by "rule" I mean the rule in conjunction with the
proclamation -- one benefit of the rule or one goal of the rule
is to reduce the number of meritless asylum claims. There's a
sentence that says almost exactly that.
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But this rule doesn't change the proportion of asylum
claims that are meritorious, does it? It doesn't do anything
on that score; right? It doesn't make a higher percentage of
the claims meritorious.
MR. STEWART: I mean, sort of as a matter of just
stepping back, if you look at the world and everybody sort of
has an asylum claim or they don't, Your Honor, I mean --
THE COURT: Right.
MR. STEWART: -- I think --
THE COURT: It doesn't do anything about that.
MR. STEWART: I don't think it -- yeah, I don't think
it affects whether or not somebody would have I guess at least
as a matter of statutory criteria.
THE COURT: I don't want -- I'm sorry for talking over
you.
MR. STEWART: That's okay.
THE COURT: I don't want to hide the ball. I'll tell
you where I'm going.
Isn't the only way that it can reduce the number of
meritless asylum claims by simply reducing the total number of
asylum claims? And if that's wrong, how else does it reduce
the number of meritless claims?
MR. STEWART: I mean, I think it does reduce the
number of -- I think it reduces the number of people claiming
credible fear when they're not going to get it, and that in
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Case 4:18-cv-06810-JST Document 108 Filed 02/11/19 Page 13 of 32
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turn reduces the number of asylum claims when they're not going
to get asylum.
THE COURT: How does it do that?
MR. STEWART: Because if somebody is not eligible to
receive asylum, then they don't get to kind of pass the
credible fear threshold, Your Honor.
THE COURT: Well, they're automatically determined not
to have a credible fear even if under the old rule, they would
be found to have a credible fear. So that's not a merits
determination. That's sort of a procedural bar, isn't it?
This is someone whose claim would have been meritorious before
and now because they crossed in the wrong place, it's not
meritorious.
MR. STEWART: I don't agree with that, Your Honor.
The big point of the rule here is that very many of those
claims -- a large number of those claims are not meritorious,
and we're now accounting for that fact when we -- when the
agency has erected the eligibility bar.
The problem is that so many of those claims don't have
merit even if somebody could surmount the credible fear
threshold bar. They don't end up showing up. They don't end
up applying. They don't end up getting asylum.
THE COURT: No one disputes that point. The
plaintiffs don't. Not all claims are meritorious. I guess --
I don't want to quibble with you. I'm just not understanding
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how it -- how the rule -- the question is: Is there sort of a
throwing out of the baby with the bathwater; right? Either
channeling is 100 percent effective or it's not. Common sense
tells us it would be impossible for it to be 100 percent
effective even assuming it occurs.
So that means by definition some persons with meritorious
claims will never have the opportunity to present them. I'm
assuming that's why there's a reduction in meritless claims
because there's just a reduction in claims. I'm not
understanding how there is a reduction only in meritless claims
other than the way I just described.
MR. STEWART: Your Honor, I don't think we have to
show that we have to reduce every single meritless claim.
We're simply trying to channel these --
THE COURT: I'm not saying you do have to show it.
I'm saying you told me that you do that, and I'm asking you to
explain how you do that.
MR. STEWART: Maybe --
THE COURT: And I can get you the page cite in a
second if you need it.
MR. STEWART: Can you maybe restate your question,
Your Honor, so I make sure I'm hitting the right point then?
(Pause in proceedings.)
THE COURT: So in the Court we tend to cite ECF pages,
which are those electronically affixed numbers at the top of
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the brief; but using the pages at the bottom that the lawyers
put on, just right on page 1 of the Government's opposition to
this motion, the very last line, the very last sentence
(reading):
"Taken together, the rule and proclamation will" --
ellipsis, right there at the bottom -- "reduce the backlog
of meritless asylum claims."
That's what I'm focused on.
MR. STEWART: Okay, Your Honor. If somebody knows
that they cannot just enter the country unlawfully, assert a
credible fear, and be released into the country for years, it
deters meritless asylum claims. If they know that they're not
going to be able to do that, they're going to instead have to
show a reasonable fear and, at most, seek some kind of
protection under the withholding statute or the convention
against torture, then they realize they don't have this very
easy burden to clear that gives them a pass into the country
for several years.
THE COURT: Okay.
MR. STEWART: So, I mean, that's the short basic
thing. And I think the rule does well to lay that out,
Your Honor. I'm not certain that I persuaded you of that, but
I think that's sort of the short version of why that is. If
there's anything else that I think might be useful, I can try
to find that as well.
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We would reassert, Your Honor, our points on the scope of
the record. As I've said, I think I'd emphasize on the good
cause and foreign affairs exceptions. It's appropriate to
give -- I acknowledge the Ninth Circuit, its ruling on this,
but I would say that there is some added benefit to the
administrative record here about -- somewhat about the agency's
thinking.
As we've explained in some of these things, with foreign
affairs, we, the Government, are not required to and it would
be imprudent to get into too much, you know, detail
telegraphing our plans, negotiating strategy, that sort of
thing.
But we have identified a significant foreign affairs
problem, a significant issue with dangers in Mexico, many which
are echoed by plaintiffs themselves, that we are trying to
address via through the Safe Third Country Agreement or other
negotiating tools, and I would emphasize those being borne out
by the administrative record.
If there are no other questions now, Your Honor, I'd be
happy to stick with the points in our various briefs and hit
any other questions that you'd want to or just simply save time
for rebuttal.
THE COURT: I don't have any for now.
MR. STEWART: All right.
THE COURT: That's fine. Let's turn it over to the
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plaintiffs.
Mr. Gelernt.
MR. GELERNT: Good morning, Your Honor. Thank you.
We do not have that much.
What we take from this Court's opinion and the
Ninth Circuit's opinion is that the Ninth Circuit affirmed all
of the legal conclusions with the exception of third-party
standing; and as we've said in our brief, we would just like to
preserve that. Who knows what will happen ultimately on
appeal, whether there will be a difference, whether it goes
en banc or in the Supreme Court.
But we do not believe that anything has really changed now
from the preliminary injunction to the --
THE COURT: Let me ask you about one thing.
MR. GELERNT: Yes. Right.
THE COURT: So with regard to the notice and comment
exceptions, the Ninth Circuit said to the parties, really
directing its comment at the Government, "If you have anything
else in the record to support these, you might want to show the
District Court on remand."
MR. GELERNT: Right.
THE COURT: And the Government has identified a
newspaper article from the Washington Post in which it is
stated that when there had been a prior change in conditions,
and the specifics are eluding me at the moment, but when there
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Case 4:18-cv-06810-JST Document 108 Filed 02/11/19 Page 18 of 32
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had been a prior change in conditions of entry at the border,
that smugglers had communicated that fact -- I think it had to
do whether you came across as a single person or as a family --
MR. GELERNT: Exactly, Your Honor.
THE COURT: -- that they communicated that fact to
people who were trying to get in the country --
MR. GELERNT: Right.
THE COURT: -- without documents, and that there was
subsequently an increase in families who were crossing.
Now, I spent some fair amount of time trying to find as
clear authority as I could on how to apply the good cause
exception.
Now, I will say parenthetically, ironically, the
Government in its motion to strike has some very negative
things to say about the evidentiary value of a different
Washington Post article by the same author. I'll just put that
to one side. You know, there's -- sauce for the goose is an
interesting aphorism but it's not very helpful here.
I'm not sure that's not enough. That's what I'm saying.
I'm not sure that's not enough. The law about good cause is
not entirely -- a good cause exception is not as clear as I
would like it to be.
MR. GELERNT: Right.
THE COURT: On the one hand, there are many, many
courts that say that the exception is to be construed narrowly
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and that in some words there's a high burden on the Government;
but at the end of the day, it's still review of agency action.
MR. GELERNT: Right.
THE COURT: And I don't know if it gets all the way
down to arbitrary and capricious, but I'm not clear on exactly
how much the Government has got to put on the table to be
entitled to good cause exception.
And I would also note that, to the extent that I can
discern a pattern in the good cause cases, it would suggest
that invoking "Hey, there's an emergency here" is the place
where the Government is usually on its most solid ground.
MR. GELERNT: Right.
THE COURT: So that was a little long-winded, but I
would say that if we're in anywhere of a different place than
we used to be --
MR. GELERNT: Right.
THE COURT: -- pre-Ninth Circuit, that's probably the
place.
MR. GELERNT: Absolutely, Your Honor. And I think
that is the one place where the Ninth Circuit did say if the
Government has anything more, put it in with the administrative
record. And obviously they've put in only the administrative
record and no additional affidavits.
I'm also not going to argue with you that the good cause
cases are perfectly reconcilable and easily understood as a
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unified body of law.
THE COURT: Do you want to give me one I might have
missed?
MR. GELERNT: Your Honor, I think -- we don't have
cases I think that you probably missed, but I do -- what I
think is the critical point here, Your Honor, is that whatever
the body of case law may say or not say, that I think the
Ninth Circuit said in this case "We find it very difficult to
believe this inferential leap." And so they did say to the
Government, "If you have stuff, put it in."
And I think given that they did say "This is a difficult
inferential leap for us to make," a newspaper article that
smugglers about some other policy may have been effective, I
don't think that's what the Ninth Circuit was looking for.
So I think you're right, Your Honor, that this body of
case law doesn't give you the perfect guidance you would want,
but I --
THE COURT: What's the standard of review of that
fact? I say it's not enough because it's not? It's like admin
law Mad Libs. Okay.
MR. GELERNT: Right.
THE COURT: Fill in the blank. What do I say?
MR. GELERNT: Well, I do think in light of the
Ninth Circuit's opinion, you would say "Is this enough to
overcome?" Using logical sort of inference, I do think that's
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what you would ask because I think that's what Judge Bybee was
saying.
THE COURT: On a more likely than not, I'm not
personally persuaded by this evidence?
MR. GELERNT: Well, I think that's what Judge Bybee
was saying, is that this is an enormous leap and you need real
evidence. And so I think you would have --
THE COURT: He didn't have any evidence. That's my
question.
MR. GELERNT: Well --
THE COURT: I'm asking you -- you want me to write an
opinion in your favor. I need you to tell me what the sentence
says. I don't think that question is unfair. "I read this
newspaper article. It doesn't meet the following standard"
colon. What do I say?
MR. GELERNT: I think you would say "In light of
Judge Bybee's decision, this does not overcome the gap in logic
from the Administration's opinion and I am reviewing this
de novo. This is not sufficient evidence."
I think if Judge Bybee thought that you were limited in
how you look at this, he would not have said "What's the
evidence?" I think he was intending for you to look at how
much sufficient evidence there is in that respect.
I think the Ninth Circuit was very clear that it doubted
this inference, and I don't take the Ninth Circuit's opinion to
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be saying, "Well, look, if they have one newspaper article."
Because I think the same basic evidence was in the rule, and
the fact that they're now citing an old opinion, I think that's
really where we come out, is that nothing in the administrative
record was conceptually different than what is in the
administrative record.
And the one thing I would note is that in part they're
relying on the President's speech that there could be a surge.
The one thing I did want to point out about that that's not in
our brief is if advanced notice to immigrants overseas was
going to create a surge, then why did the President have a
public press conference and why did the Administration give it
to the press a week before they announced the rule if the very
thing they were worried about was a surge and people having
advanced notice?
And so I think that actually the record evidence that they
put in or that's in the administrative record would cut against
that.
So, you know, Your Honor, I agree, and I know I'm
belaboring this, that there's no sort of clear way to look at
the good cause; but I do think in this case the Ninth Circuit
was very clear that they didn't buy the inferential leap and
that they were looking for some real evidence.
And this is a Washington Post article, and not to
denigrate the Washington Post article --
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THE COURT: That's okay. They did so you can. That's
fine.
MR. GELERNT: -- but it's more to say that this is
about a different policy with very slight evidence. And now
had the Ninth Circuit said "Well, we basically buy this but is
there a little more evidence," that would be one thing. But
for the Ninth Circuit to say "This is way too big an
inferential leap," I don't see them coming back and saying,
"Well, there is this newspaper article about a wholly different
policy that may have had some effect."
THE COURT: Yes, it's unquestionably thin. I don't
want to give -- I mean, part of the point of oral argument is
to push people as hard as you can to see what they come up
with.
MR. GELERNT: Right.
THE COURT: So you don't want the other side
necessarily to take all the comfort they might from that. It's
thin, but the question is: Is thin enough; right? So I have
to figure that out.
MR. GELERNT: Yeah. No, I don't think -- I don't
think the cases suggest that anything floats, and I certainly
don't read the Ninth Circuit's opinion as saying as long as
they put in something. I think the Ninth Circuit looked at
this fairly fully. This is not a -- you know, sometimes the
stay opinions, as Your Honor noted, can be cryptic, but this is
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a sort of full --
THE COURT: I have always been envious of
Judge Bybee's writing.
MR. GELERNT: And this is a full discussion of good
cause, and I think he went through it.
You know, at the end of the day, when you look at what's
in the administrative record, it's conceptually identical to
what's in the rule.
And as Your Honor noted, I think those are the only
places, good cause and foreign affairs, where they're pointing
to anything in the administrative record. So that would be the
only place, I think, where we're in a different place.
Standing, obviously the administrative record doesn't go
to standing, and they haven't put in any affidavits.
On the INA claim that Your Honor found and the
Ninth Circuit affirmed, that's obviously straight legal claim,
and so that wouldn't be affected by the administrative record.
In terms of the motion to strike, I don't know whether
Your Honor was going to split up the argument. I gather not.
And so if Your Honor had questions about --
THE COURT: You know, I cleared my calendar and I
figure people can talk about whatever they want.
MR. GELERNT: Right. Okay.
THE COURT: Given the importance of the case to the
parties, I felt that it would be appropriate just to give them
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a bigger forum or something like that. It's not usually the
case that people spend lots of time on motions to strike.
MR. GELERNT: Right. I just -- the only thing I
wanted to say, Your Honor, is if you did have questions, my
colleague, Ms. Veroff, would address those.
THE COURT: I think it's pretty clear.
MR. GELERNT: Okay.
THE COURT: You can't consider extra-record evidence
on the APA claim. I don't need the record even if I could
consider it, and I don't think I can on this statutory
consistency point; but this is an injunction case, and I'm
allowed to consider extra-record evidence when it comes to the
public interest and the balance of harms. That's a separate
question from your standing, for example.
So the parties -- there isn't actually that much
disagreement in the parties' motions.
MR. GELERNT: That's exactly right, Your Honor.
That's what I was going to emphasize. I mean, they are
claiming that we can't put in evidence on third party or zone
of interest. We think that's wrong for the reasons we've
stated in our brief, that all of standing would be something
you could put evidence in --
THE COURT: You don't need it on zone of interest
anyway.
MR. GELERNT: Right.
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THE COURT: I'm bound by the Ninth Circuit's findings.
MR. GELERNT: Well, that's exactly right, Your Honor.
And it sounds like you understand you can put it in for the
irreparable harm. That's not saying the administrative record.
We do have arguments for why we think you can consider for
good cause or foreign affairs. Those are laid out in our
brief, and we would rest on those unless you had any questions
about that.
THE COURT: I don't.
MR. GELERNT: Okay. Thank you, Your Honor.
THE COURT: Thank you.
Mr. Stewart?
MR. STEWART: Just a few very quick points,
Your Honor.
Just if I could follow-up on Your Honor's question about
the first page in our brief and dissuading. The target here
that Northern Triangle nationals who come to the country
between ports of entry, it lowers the incentives for those
Northern Triangle nationals to enter between ports of entry
because they know they won't, under the combined rule of the --
the combination of the rule and proclamation, be able to get
through a credible fear proceeding that would then likely
potentially enable their release for years and allow them to
stay in the country for years, so that's the incentive it
focuses on.
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I think Your Honor hit -- echoed some of our record
points. We'd rest on our briefing otherwise on those, on the
motion to strike issues.
On good cause and foreign affairs, Your Honor, I'd say
that something that the production of the record does help show
now is that there is -- the agency had its conclusions in the
rule. Their predictive judgments do have good support. They
reflect a rational connection between the facts that were
before them, the information, the incentives, the concerns, and
an appropriate response to those. So they do pass the relevant
standard of review. The agencies did provide some explanation
and that does meet the standards of the APA on both of those.
On the order point, Your Honor, what I'd emphasize, again,
we still have not seen from the plaintiffs a kind of order that
would target and provide the alleged protection needed for
individual clients.
THE COURT: Yeah, because they don't want that order.
They're never going to provide that order. That's why I asked
you. This is what you told me last time. Why would they
provide that order? They think they're entitled to a
nationwide injunction, and Judge Bybee agrees with them.
MR. STEWART: And we would stick with our points,
Your Honor, that it still needs to be bone fide clients,
otherwise -- given the limitations of these organizations
standing, the focus on immigration laws on individual aliens,
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the absence of identified aliens subject to the policies that
have been tangibly harmed, but we're happy to stick with the
positions I've articulated on that and in our briefing.
And this is, I believe, in our briefing, Your Honor, but
in addition to some of the points I've mentioned here, I'd just
point Your Honor to the record at pages 484 to '92. This
reflects some of the President's --
THE COURT: AR484?
MR. STEWART: Yes, Your Honor, AR484 to '92 and AR505
to 509, which gets to some of the statistics and some of the
concerns that the agency heads were trying to respond to.
If there are no further questions, Your Honor, I think
that's all the Government would like to add to our prior
arguments and submissions.
THE COURT: Very good.
MR. STEWART: Thank you, Your Honor.
THE COURT: Thanks.
Anything further from the plaintiffs?
MR. GELERNT: Your Honor, just one quick point on good
cause.
I think probably -- this is not to take back that I think
that the good cause cases are all perfectly uniform, but I
think the best case probably to look at from the Ninth Circuit
is Valverde where it says --
THE COURT: That's a SORNA case; right?
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MR. GELERNT: Right. It's either de novo or arbitrary
and capricious. We think they lose under either one, but what
ultimately the Ninth Circuit said is it has to be plausible in
Valverde. And I think that's what Judge Bybee is getting at,
is that it was much too -- it was a much too great a leap of
logic. And so I think that this one newspaper article is not
going to make it.
Plus, the other thing I would say about the newspaper
article, just not to belabor that, is that we're talking about
a change in policy over a long time.
Here, what I think the Ninth Circuit emphasized in
Footnote 15 on page 58 of the opinion is that we're talking
about how much in 30 days is going to happen. We're talking
about notice and comment and the grace period of 30 days. You
know, is the word going to get out, are smugglers going to
create posters, and is all this going to change in 30 days?
We're not talking about a delay of, you know, months and
months. We're talking about 30 days, and I think that's why
the Ninth Circuit emphasized that it's too much to assume that
in 30 days all this is going to happen and that's going to
create the surge.
Unless there are further questions, thank you, Your Honor.
THE COURT: There are not. Thank you.
Let me just say -- oh, yeah. Mr. Stewart.
MR. STEWART: I apologize, Your Honor. Can I add just
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one, like, little proposal? And I didn't mean to preempt
Mr. Gelernt.
THE COURT: Why not?
MR. STEWART: Another option, if Your Honor were
inclined to again issue some kind of injunctive relief, one
possibility to finding a tailored remedy would be for the
parties to confer on a narrower order. If they disagree, they
could each submit dueling orders as to what might be more
tailored. I raise that as an option, and we would be happy to
do that, Your Honor --
THE COURT: Thank you.
MR. STEWART: -- if that would be helpful.
Thank you.
THE COURT: Mr. Stewart, you've clearly done your
research and you know how much I love baseball arbitration, but
I'm unlikely to go down that path today.
I want to start by acknowledging that the temporary
restraining order expires either at midnight tonight or upon
issuance of a preliminary injunction, and I'm mindful of that
and so I intend to get an order out today barring some
emergency that I can't even foresee what that might be.
And I'd also just want to thank the parties for their
really excellent advocacy on both sides and for -- I know you
didn't allow me to work on the case, the computer here did
that, but it's been a pleasure reading your work product and
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listening to your advocacy, and so I thank you for that.
This motion is now under submission.
(Proceedings adjourned at 10:11 a.m.)
---oOo---
CERTIFICATE OF REPORTER
I certify that the foregoing is a correct transcript
from the record of proceedings in the above-entitled matter.
DATE: Monday, February 11, 2019
_________________________________________
Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR
U.S. Court Reporter
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