Orozco-Ramirez v. Visser et al

本站添加: 2026-05-14

[00:00:29]Johnny, this is the clerk in the courtroom. Can you hear us?

[00:00:33]>> Yes, I can. Can you hear me?

[00:00:35]>> Yes, thank you.

[00:00:37]>> Thank you.

[00:00:38]>> And this is the court reporter. I just want to remind you that with Zoom calls there's a delay and so really wait u and make sure you hear the complete question or answer what people are saying.

[00:00:53]>> Understood. Thank you so much.

[00:00:54]>> You're welcome.

[00:02:06]Does anybody know Valerie?

[00:02:10]Yes, that's his lo his fellow.

[00:02:15]>> Yeah, she's our litigation fellow. Um it would be great if she could join the Zoom.

[00:02:23]>> Thank you so much.

[00:02:24]>> You're welcome.

[00:04:32]Judge United States.

[00:04:37]>> Please be seated.

[00:04:40]The [clears throat] clerk, please call the first case of the court's calendar.

[00:04:44]>> This court will now conduct a hearing in CB26-252-GF-BMM.

[00:04:49]Arosco Ramirez versus Viser at all. Good morning, Mr. Tanner.

[00:04:54]>> Good morning, your honor.

[00:04:54]>> Good morning, Miss Christopherson.

[00:04:56]>> Good morning, your honor.

[00:04:57]>> Good morning, Miss Nielsen.

[00:04:58]>> Good morning, Mr. Rosco.

[00:05:00]>> Good morning.

[00:05:01]>> And on Zoom, we have Mr. Sonatus >> Cenotus.

[00:05:06]>> Cenotus.

[00:05:07]All right. And >> good morning, your honor.

[00:05:09]>> Good morning. And Miss Vera.

[00:05:13]>> Yes, your honor. She's a litigation fellow with our firm.

[00:05:16]>> Okay. All right. Good morning, Miss Vera.

[00:05:19]>> All right. Good morning, >> honor. So, uh, who's going to, uh, do the talking this morning?

[00:05:24]>> Your honor, for the plaintiff, it'll be Johnny Cenotus.

[00:05:27]>> Miss Cenot. Okay. All right. Mr. Cenotus, do you have any witnesses you wish to put on or arguments?

[00:05:35]>> Your honor, we were under the impression this would be solely for argument. So, I'm prepared to present arguments.

[00:05:41]>> That's fine. Go ahead, please.

[00:05:43]>> Okay, great. I do want to flag, your honor, uh about 10 minutes ago, we filed a notice of supplemental authority. Um the sixth circuit yesterday uh issued a decision on whether individuals like Mr. Arosco are held under 1226A or 1225 B2A and cited with our argument that the interpretation of the statutes means that he would be detained under 1226A and not subject to mandatory detention.

[00:06:13]And what's the what's the citation for that please?

[00:06:17]>> I will pull it up right now your honor.

[00:06:23]It is Lopez Compost versus Raycraft number 25 1965 and the Weslaw site is 2026 Weslaw 12838 91. 1 6th Circuit May 11th, 2026.

[00:06:55]>> All right, go ahead, please.

[00:06:57]>> Okay, [clears throat] your honor. Um, plain statutory text as well as congressional understanding of the statutory scheme for detention of non-citizens uh and agency practice for the past 30 years dictates that Mr. Rosco is being improperly held by the Department of Homeland Security right now subject to mandatory detention under 1225B2A.

[00:07:27]Historically, in accordance with the plain text, the Department of Homeland Security has treated individuals like Mr. Arosco as detainable under 1226A, which would afford him the right to at a minimum a bond hearing with an immigration judge. Now, the government's interpretation of 8 USC 1225 and 8 USC 1226 changed completely last summer when the Department of Homeland Security in coordination with Department of Justice issued a memorandum stating that ICE would now take the position that individuals who entered the country without a visa, no matter how long ago, would now be subject to mandatory detention under 1222 B2A.

[00:08:16]Even though the text congressional understanding and agency practice dictated that that statute is for individuals who are either apprehended at the border or shortly thereafter. It has never been interpreted to apply to people like Mr. Rosco who have been in the United States for nearly 30 years. And the reason is if we read the text of 1225 A1 which defines applicant for admission and the text of 11:01 A13 we see that admission is defined as lawful physical entry to the United States. So the statutes are tied to people who are arriving from a foreign country into the United States either at a port of entry at the border or port of entry in the interior at an airport. So still technically considered an international um border. Now, um, historically, the Supreme Court has interpreted 1225 and 1226 the way that petitioner still does. In Clark versus Martinez, Prio versus Nelson, and Jennings versus Rodriguez, the Supreme Court has said very clearly 1226A is for people physically in the country like Mr. Arosco. they are eligible for a bond hearing as a as a presumption as a general matter unless they have been convicted of one of a a a set of enumerated crimes that is laid out at 1226 C.

[00:10:03]1225 B2A also in Clark versus Martinez Neielen and Jennings has been held to apply at the nation's borders. Full stop.

[00:10:16]There is clear language in each of those three Supreme Court decisions finding that 12 1225 B2A is only for individuals arriving at the border who are presently seeking admission meaning requesting lawful entry into the United States. Now this since last summer has become the issue in immigration law. Thousands of habius petitions have been filed on this particular point and that's not hyperbole. It has overwhelmed the judicial system throughout the country and over 90% of district courts and circuit courts to have considered this issue have found in favor of our interpretation which accords with the statutory plain text. Your honor, um we've got the second, 7th, 11th, and now the sixth circuits agreeing that individuals like Mr. Arosko are held under 1225 B2 uh pardon me, 1226A, not 1225B2A.

[00:11:26]They make clear that that's in accordance with the plain meaning of the words of the statute.

[00:11:32]It's also in accordance with congressional understanding. When IRA IRA was enacted in 1996, council, >> if we look, >> you mentioned a number of circuits. You said the second, the seventh, the 11th, and now the sixth and there are thousand thousands of these petitions being filed. How has the ninth circuit not address this issue, which seems to have more of these cases than any other circuit?

[00:11:56]>> The Ninth Circuit heard argument in Rodriguez versus Rodriguez Vasquez versus Bosto on March fth, your honor.

[00:12:06]um and it's pending a decision.

[00:12:09]What I will say, your honor, is um historically, you know, the Ninth Circuit has made statements about how uh 1225 B2A applies at the border and 1226A applies within the interior. We can see that in um Osos Gonzalez. We can see it in Torres versus bar. Um, applying for admission is at a port of entry or in between ports of entry at the border. It does not apply to people already in the interior of the United States.

[00:12:46]Um and and to to go back to the thread about congressional understanding of the statutes, your honor, in 1996 when IRA IRA was enacted, uh the committee reports make clear that detention for individuals already in the country would be applied in the same manner as the predecessor statute 242A1, which made clear that indiv Individuals who have unlawfully entered are eligible for bond unless they commit one of enumerated set of crimes which Mr. Rosco has no criminal history. He's not subject to mandatory detention under 1226 C. Um [snorts] with the enactment of IRA IRA, Congress also created 1226 C. And if we look at that statute 1226 C1A D and now E with the Lake and Riley Act, those provisions apply to people who are inadmissible for having entered without a visa.

[00:13:59]Okay. And so if if Congress had included provisions in 1226 C1A D and now E to cover people who have entered unlawfully without a visa like Mr. Rosco, then it must be because 1225B2 does not already make all individuals who entered unlawfully without a visa subject to mandatory detention. They they would be superfluous if that were the case. And it's clearly not. Congress has never in the past 30 years attempted to correct what the executive has done, which is as a historical matter always held people like Mr. Arosco under 1226A where they'd have a bond hearing.

[00:14:47]And Congress also understood when it enacted IRA IRA that um in creating 1226C which mandates [snorts] uh detention for people who have certain criminal history, it would result in a population the size of which INS at the time didn't have the ability to detain.

[00:15:11]They they they said it would be about two million people. And so it afforded Congress or or INS two years to implement the statute so that it could create detention centers.

[00:15:24]Congress said nothing about the other 10 million people who were presumed to be in the country as having entered without a visa. It was only with respect to those individuals who' committed crimes.

[00:15:35]So this again goes to further congressional understanding that 1226A is the presumption.

[00:15:42]1226 C is for folks with criminal history that makes them subject to mandatory and 1225 B2A only applies at the border, your honor.

[00:15:53]Um and I if if we think beyond that uh in terms of you know congressional understanding, common law understanding what is due process, the freedom from uh unlawful restraint is like the core fundamental interest of anyone within the United States. And we know that due process applies to anyone physically in the United States whether they're here lawfully or not. whether they entered lawfully or not. And it makes sense then that people who enter the country and are in the interior are afforded a statutory right to a bond hearing under 1226A.

[00:16:37]While those who never made a physical entry to the United States would be subject to 1225 B2A. that would not offend congressional uh understanding, common law understanding of where the constitutional uh constitution applies versus where it does not. But council, you were you're taking issue with the more recent interpretation of the statute by the federal agencies.

[00:17:06]Has Congress taken any steps to respond to that interpretation that it goes against Congress's uh own view?

[00:17:15]Congress has not taken any action, your honor, to respond to the new agency practice of subjecting people like Mr. Orosco to 1225 B2A instead of 1226A.

[00:17:27]>> How how should I how should I view that fact? The Congress has failed to act.

[00:17:35]>> I think it's it's irrelevant, your honor. Respectfully, it's been 10 months since this interpretation uh changed. Uh the courts have overwhelmingly reacted um quickly on on the side of Mr. Rosco's interpretation. Um Congress, with all due respect, usually doesn't act quickly, your honor, and probably sees this as a matter of statutory interpretation to be dealt with by the courts. But what I will say is if congressional action or inaction is a factor in the court's adjudication of this um then we have to consider the fact that for 30 years Congress did nothing when INS and DHS considered people like Mr. Arosco to be bond eligible under 1226A.

[00:18:26]So 30 years as opposed to 10 months um of congressional [clears throat] silence clearly weighs in favor of our interpretation as well.

[00:18:38]Go ahead, please.

[00:18:40]>> Okay.

[00:18:44]So um what I would say your honor is [clears throat] if we also look at um the second 7th 11th and now the sixth circuit's decisions um it makes clear that the government's argument that applicant for admission is synonymous with seeking admission is incorrect. Um again applicant for dem admission has a clear statutory definition at 1225A1 whereas seeking admission does not.

[00:19:18]Those district courts have considered seeking admission to be something actively being um engaged in like there has to be an actual application set forth by the non-citizen to enter the United States. It does not apply to people who are simply already in the interior.

[00:19:40]And go ahead.

[00:19:43]>> Well, I wanted to take just one step back. How do you respond to the government's argument that this court lacks not the proper venue to hear a challenge like this? It should be brought in the District of Columbia, District Court.

[00:19:57]Oh, your honor, the government's argument on venue is is is sorely misplaced. Um, habius largely depends on immediate custodian rule. Um, which stems from Rumsfeld versus Padilla. Uh it's been applied by Do versus Garland at the Ninth Circuit to mean that individuals suing uh for release from detention must sue the custodian in their district of confinement, which would be in Montana. Um and to take it beyond that, your honor, 1252E is all about individuals who have been subjected to expedited removal. So, those are individuals who are detained at the border under 1225B1 um because they either committed misrepresentation or lacked entry documents allowing them to be admitted to the United States um and are now challenging the expedited removal order against them. [snorts] So, there's no removal order in Mr. Arosco's case. Um there's certainly not an expedited removal order because it only applies at the border. Um and if we look at 1252 E3 specifically, it talks about systemic challenges to the system. So for example, um there's a lawsuit pending in the District uh of Colombia called CGS versus Gnome. It challenges the executive's uh application of a bar to asylum at the border.

[00:21:38]That is the type of claim that 1252E is talking about. It's a it's a challenge to a systemic application of a statute across the board. It does not deal with custody. It certainly does not deal with an individual's argument that 1225B2A doesn't apply to them and the district courts that have considered this your honor in including Maldonado Bautista um which is pending at the Ninth Circuit which the Ninth Circuit has not disagreed with on the merits um has also struck down 1252E3. So, we've got uh this isn't our briefing, your honor, but we've got Bautista versus Santa Cruz, Duran versus Bernaki, Garop Pinche versus Gnome, Flores Rivera versus Ladwig, Leppy, Gonzalez versus Sterling. They all make clear that 1252E deals with systemic challenges.

[00:22:43]It does not deal with an individual's uh argument that the statute 1252B2A doesn't apply to them. And there's there's there's many um ninth circuit cases. I mean, Singh versus Holder, um Do versus Garland. We have Rodriguez Vasquez versus Bosto, which was argued on March 4th. All of these deal with individuals who make a an argument that the detention statute does not apply to them and they have been uh they have been allowed to make those arguments.

[00:23:22]the courts have ruled on them and specifically in Rodriguez versus Vasquez uh Rodriguez Vasquez versus Bostock the district court was very clear that the government's 1252E argument uh was erroneous and it's my understanding having listened to the argument and read some of the briefing that the government didn't actually appeal that issue to the Ninth Circuit because it really is of no moment.

[00:23:49]uh council, how would you distinguish the decisions of the fifth circuit and the eighth circuit regarding this argument about a distinction between applicant for admission and person seeking admission?

[00:24:01]I think the main point is that the fifth and eth circuits don't apply the definition of applicant for admission.

[00:24:11]Uh they they give it its common sense everyday meaning which in my view the court can't do. Um the descent also made in both cases made that point. When there's a clear definition, it's got to be applied. Applicant for admission is not synonymous with seeking admission.

[00:24:29]Seeking admission again requires something active. It's an application set forth by someone at the border, not somebody in the interior.

[00:24:41]And um beyond that um just one point on jurisdiction in all of those cases, your honor, the courts didn't find that it lacked jurisdiction.

[00:24:54]And so, you know, although those decisions didn't actually deal with 1252 at all, like there's no implicit understanding of jurisdiction. And so, I think that's further support for our argument that this court has jurisdiction to rule on the merits. Um uh beyond that, Abila and Buen Rostto also don't deal with the due process argument set forth by petitioner here.

[00:25:18]Um so it's a failure to apply the definition, your honor. Um it's a misreading of what seeking admission means. There's no discussion about how admission is an application for lawful physical entry into the United States.

[00:25:34]That is completely silent. The court is silent on that issue. So if we look again at 11:01 A13, admission means application for physical lawful entry.

[00:25:46]Applicant for admission is someone who is um in the United States uh applying to come into United States um for physical lawful entry. Seeking admission has to be linked to that physical entry.

[00:25:59]honor and the examination and inspection that's discussed in the statute is one that's actually conducted by an officer at the border. It's not conducted by any ICE or CBP agent within the interior of the United States.

[00:26:20]Well, council, I guess that kind of reaches the nub of this case. You know, we've been talk spent a lot of time talking about distinguishing seeking admission and being as opposed to someone seeking admission someone at the border versus someone who's already in the country.

[00:26:39]Well, how does that person get in the country in the first place?

[00:26:44]>> Well, there's a there's a variety of scenarios, your honor. Um, in in this petitioner's case, in Mr. Arosco's case, uh, he entered the United States unlawfully.

[00:26:55]um without a visa. It was a physical entry however and um the constitution applies and again 1226A is the statute that applies to individuals who have entered the country unlawfully. Um and that has been stated as the law by Clark versus Martinez, Neielson versus Pop, Jennings, all Supreme Court cases. Your honor, they they have made clear in each of those cases 1226A is for folks in the country. 1225 B2A is for people at the nation's borders or ports of entry.

[00:27:38]>> All right. Anything else?

[00:27:42]Uh, your honor, I' I'd like to um touch on due process a little bit more um and say that in the sixth circuit's decision from yesterday, uh the first circuit, to my knowledge, to actually rule on the due process issue, um it held that individuals in the country have constitutional rights. Um, this is corroborated by Zadvidas versus Davis.

[00:28:13]Um, and a whole slew of Supreme Court doctrine going back to the 1890s.

[00:28:19]Um, it does not matter how the individual has entered the country. So, subjecting them to mandatory detention without the opportunity for bond would be a constitutional issue. Um, the only time mandatory detention has been allowed for individuals already inside the country is under 1226 C. And it's because Congress made a concerted decision that if you have committed one of the enumerated crimes at 1226 C, normally something violent, something dealing with fraud, um something where there's abuse of children or a spouse, um unless you have one of those convictions, uh you are eligible for bond. Um, and in Neielson versus preop, the Supreme Court made clear that 1226 C is not a standalone. It is a carve out to 1226A and that is because of the fact that the Constitution applies to folks in the United States. Um, the government in its briefing misreads the Supreme Court's decision in the sigium. Um the government wants the sigium to be read to um apply to Mr. Arosco and and say that he's got no constitutional due process rights. But the sigium dealt specifically with someone apprehended at the border who was at the threshold of entry and that phrase threshold of entry is throughout the Supreme Court's decision in the sigium. Mr. Rosco was not detained at the threshold of entry.

[00:30:03]He's been here since 2000. His last entry was 2009.

[00:30:08]He is the person in the sigium who has established connections to the United States and who does have due process rights.

[00:30:17]I will note that the uh the the um government's district court decisions in its discussion of due process which is Diaz versus Patino, Tinaguire versus Reapa, Romero versus Broward. Um, those all dealt with situations where the petitioner was apprehended at the border at the threshold of entry and parrolled in for removal proceedings.

[00:30:47]People who are parrolled into the country are as a legal matter always treated as being at the threshold of entry. And so when they were rearrested, the court said, "No, these folks are actually on the same legal footing as the sigium who was apprehended at the border, never made a physical entry into the country, and therefore they don't have any more due process rights than the statute 1225b affords them." Mr. Arosco again entered the country, physically entered the country years ago.

[00:31:23]the constitution applies to him as we know from Zadvidas Lannon versus placencia um and it would be against every core understanding of the constitution to find that he's he can be detained for an indefinite period of time without even the possibility for a bond hearing where there's some individualized determination about whether custody is required and for civil purposes your honor custody is only required ired for um folks who are flight risk or who present a danger to the community. Mr. Rosco is neither of those things. Respondents have not asserted that he is a danger or a flight risk. Um and as the court has seen from the letters of support, including from the sheriff of the county where he resides, he is a very wellrespected individual.

[00:32:17]Uh he's the father of four US citizens.

[00:32:20]He has been living in Freud for years and as as Sheriff Frederick said, custody is not meant for people like him. And if released, if the court wanted to impose any conditions on release, um the court could the court could require him to appear uh at check-ins and Sheriff Frewick would ensure that that happens. And so getting beyond the the the mislication of 1225B2A as a constitutional matter, Mr. Rosco would be eligible for an individualized determination as to whether he's a danger or a flight risk. And we would ask if the court were inclined to uh require a bond hearing instead of outright release that the court conduct that bond hearing.

[00:33:12]Um there is mounting evidence that the immigration system at least with respect to bond is biased. Uh these are not my words. Courts throughout the country have found that bond hearings have pre-ordained outcomes and we we provided decisions from all over the country, your honor. uh from Florida, from Texas, from Idaho, Arizona, California, New York.

[00:33:43][snorts] The growing evidence is that the immigration system is being weaponized to keep people who would otherwise be eligible for release detained.

[00:33:54]And so if if the court were inclined to grant a bond hearing or require a bond hearing, we ask that it be conducted in this court, your honor. Um the court habius is a flexible um mechanism. The court can order whatever relief it deems to be just and fair. Um and just recently in the last year there have been several high-profile cases. Uh two of them I I am actually on where courts did conduct bail hearings. Um the government is wrong to say that the court wouldn't have the authority to do so. It clearly does. Um, and so if the court were to require a bond hearing, we'd ask for it to be in this court, we have witnesses that we can present, your honor. Um, uh, and we we we we think outright release is the right remedy to grant as countless courts have granted. Um, but if the court were inclined to require a bach hearing, your honor, we'd ask that be in this court for the reasons just stated.

[00:34:58]Anything else, council?

[00:35:02]>> Um, if if I could reserve I know >> you have a chance to reput. I'll give you an opportunity to reput.

[00:35:08]>> All right, Mr. Tanner.

[00:35:10]>> Thank you, your honor.

[00:35:17]>> Your honor, I want to start with what I think is the central question in this case and and that is um whether Mr. Rose code's detention is governed by section 1225 or section 1226. Uh now section 1225B2A applies to those who are applicants for admission seeking admission and not clearly and beyond a doubt entitled to be admitted. Uh going into today's hearing, I would have thought that no one disputed that Mr. Rosco is an applicant for admission. But hearing Mr. Sonatus' argument, it seems that they might be disputing that whether he is in fact an applicant for admission. Um, but respectfully, your honor, that initial condition of 1225B2, the applicant for admission condition does not apply just at the border. Uh, it states that 1225A1, uh, an alien present in the United States who has not been admitted shall be deemed for purposes of this act an applicant for admission. That is Mr. Rosco uh he is an alien president in the United States who has undisputedly not been admitt admitted. So that condition of 1225 B2A applies.

[00:36:27]>> Well, council, how do you respond to they have seem to have a circuit split to some degree here? The ninth circuit is going to address this soon, we hope.

[00:36:36]But how do you respond to those circuits who said, "Well, there is a distinction between people at the border or coming off at an airport coming into the country versus someone who's been here for years." Your honor, I think that those discussions come up primarily in the context of the legislative history of IRA IRA and uh how the Supreme Court has treated that. But I don't think any of the circuit courts have said that uh 1225A1 applies only to those folks who are at the border. That is not what the courts have said. In fact, the fifth and the eighth circuit have assumed uh unless I'm mistaken that the uh individuals in question there were in fact applicants for admission. The fundamental question in those decisions was whether applicant for admission and seeking admission were the same thing.

[00:37:20]And that's really where the circuits split is on that what I would say narrow question. I mean it is a relatively narrow question. There's been a lot of ink spilled uh you know on linguistics and all sorts of things trying to interpret those phrases. But that's really the crux of the question is whether applicant for admission means the same thing as seeking admission. and the fifth and the eighth circuits. Uh again, uh unless I'm mistaken, they did not uh ignore the fact that the phrase applicant for admission is a term of art. It undeniably is. Applicant for admission is a term of art because it's statutoily defined in A1, subsection A1.

[00:38:02]The point though is is that just because a phrase like applicant for admission is statutoily defined that does not mean it cannot have synonyms. The n the the US Supreme Court said in Jennings at page 303 there is no canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean the same thing. So the the the phrase applicant for admission uh even though it's statutoily defined means the same thing as seeking admission. They are the they are the same terms functionally.

[00:38:39]>> Mr. Tanner, would you agree that this interpretation you're putting forward is relatively new that that the immigration services is has changed its interpretation within the last two years? the the issue uh the question about whether applicant for admission is the same as seeking admission is undisputedly a new issue because the agency has adopted this uh this interpretation of 1225 B2A but the fact that it has adopted this position >> and and that that interpretation runs counter to the previous interpretation that was around for several decades >> and your honor I would disagree with that if respectfully if suggest if the suggestion is is that 1225 uh B applies only at the border and 1226 applies everywhere else. If you look at the legislative history of IRA IRA, this is spelled out in the ninth circuit's decision in Torres, uh where it walked through the legislative history of IRA IRA. And that is to say that what Congress sought to accomplish with IRA IRA was to place folks on equal footing.

[00:39:46]Because if you interpret uh 1225 to apply only to those folks who enter at the border and 1226 to everyone else that places that incentivizes people to unlawfully enter the country and remain without detection. It rewards those.

[00:40:03]>> Congress passed this law in 1996.

[00:40:06]Correct.

[00:40:06]>> Correct.

[00:40:07]>> All right. So from 1996 until 2024, how's it interpreted with regard to this applicant permission versus uh person seeking admission?

[00:40:19]the dispute we seem to have here >> and I don't know that that distinction was necessarily on the agency's radar because it's true that the agency has recently uh applied uh the 1225B2 in this manner but the fact that it has applied the polic has applied the statute in this manner doesn't mean that it is an incorrect application as the fifth circuit noted >> well I understand that but would that mean that how it was applied or interped Ed before the change was wrong.

[00:40:51]>> Before the adoption of IRA IRA.

[00:40:54]>> No. So after 1996 from 1996 until 2024 five we have an interpretation. Correct.

[00:41:02]>> Correct.

[00:41:02]>> Right. How would you how would you characterize how the immigration services by that I mean DHS IO how did they interpret uh the statute? I do not believe honor they were look your honor that they were looking at it so narrowly in terms of the comparing seeking admission to applicant admission. But if you're asking how they applied 1226 uh to uh versus 1225, I believe that yes, they were applying 1226 to those folks who had already been present in the country is my understanding. Uh and what but the fact of the matter too though is is as the Jennings court observed 1225B2 is much broader. 1225 B1 uh applies to those who are entering uh B1A1 applies to those who are entering the country and then in Jennings the United States Supreme Court said that 1225 B2A2 applies to everyone else that it's the catchall provision. It applies to all other folks who are not lawfully admitted that wouldn't otherwise fall into the category uh under 12 25 B1A1 and that was in 2017 I believe Jennings was decided.

[00:42:11]>> Okay, go ahead.

[00:42:14]The argu there there has been the argument that if um that if applicant for admission and seeking admission mean the same thing then that would mean that seeking admission is surplusage that there's no reason to have that but both the fifth circuit and the eth circuit have explained why that's wrong and again Jennings in in the Jennings decision uh the United States Supreme Court said that it's essentially okay to have terms that might mean the same thing even if they are different terms or phrases.

[00:42:45]>> Well, council, do you think it makes any sense? I mean, we all know that there are many people in the country who did not show up at the border with a visa or with permission to enter, they're here.

[00:42:58]Does it make any sense to say, well, the folks who are stopped at the border or stopped at airports seeking admission or application permission, we don't know anything about them. We're going to have to put a block on on their bond proceedings.

[00:43:13]People who are in the country, however they got here, we we may know something about them. They have a track record and therefore a bond hearing might be appropriate because unlike the folks who just show up, we don't they've just come here from from a foreign country. These folks have been here for some period of time. It's okay for us then to look at their history and characteristics and determine whether bonds appropriate while we uh adjudicate their long-term situation >> and that would be an argument for the bond hearing in that scenario. I mean I I I can't dispute that that would be an argument in favor of that. But I think you also have to look at it from the other side. But but getting to get to a bond here in the first place though, I mean, I'm just saying, isn't that isn't that a policy reason why you why you would distinguish people who are stopped at the border or at a point of entry, you know, airport, wherever it is, versus those people who are already in the country, however they got here.

[00:44:09]>> I do not believe that that's the policy reason that uh the agency is is relying on. And the policy reason that the agency is relying on for the the application of 1225B2 as it stands is the equal footing doctrine that the that Torres uh spells out the ninth circuit's decision in Taurus that the that through Ira Congress sought to place those who were already president in the United States illegal illegally on equal footing with those who are attempting to enter the country because it would be unfair to treat those who have entered the country and have evaded apprehension or detection for many many years to treat them more favorably than those who are at the border seeking admission. So that's the policy uh statutory not just policy but the statutory justification for applying 1225B2 in this manner is IRA IRA itself and >> Mr. I don't want to change the subject entirely, but um would you respond to council's argument to your claim that this court lacks is not the proper venue?

[00:45:15]>> So speaking specifically then about 1252e I believe is what you're referring to on here. Yes. So it's so pliff council is wanting to have it both ways here it seems. So 1252 uh E3A applies to section 1225B broadly. It's there in the black letter of the statute. It's not limited to just extra uh expedited removal uh proceedings. It applies to 1225B broadly and it applies to systemic and policybased challenges to the statutes in 1225b.

[00:45:53]And on the one hand, the petitioner wants to argue that they're not making a systemic challenge here, that it's all about just this individual case. But at the same time, in the same breath, what we hear is that they're alleging systemic bias among immigration judges.

[00:46:09]They're alleging this policy is wrong that the agencies have adopted. So to the extent that they are levying a systemic policy challenge under 1225 uh I'm sorry 1252 E3A that does belong in the District of Columbia. Well, I don't I don't need to get into the alleged bias of the immigration courts, but we have decisions on these habius petitions from uh numerous courts throughout the country now. And are are those all invalid because venue was improper?

[00:46:41]>> To the extent that those petitioners were challenging the administration's policy or systemic bias among immigration judges, yes, those cases should have been venued in the District of Columbia.

[00:46:53]>> Okay. Go ahead, please. And just while we're touching on the question of jurisdiction, your honor, um you know, one of Mr. Snotus raised the point that how could subject matter jurisdiction possibly be lacking if so many courts have addressed squarely this question whether 1225 or 1226 applies. And uh certainly we make these jurisdictional arguments under 1252 uh generally 1252G and 122252B9 to preserve those arguments because we do uh believe that the court lacks jurisdiction in that regard. But more specifically, we believe also that the court lacks jurisdiction for the immediate release of Mr. A. Roseco because that is a question that is challenging his detention at its core in the first place. Um you know what the Supreme Court has said and what the Ninth Circuit have said is that uh in the Jennings detention that the court does have habius jurisdiction to review um sort of collateral proceedings to removal that it applies only in those three narrow circumstances commencement removal proceedings among other but what the Supreme Court said in Jennings is that if you're challenging detention in the first place then yes then there would be a jurisdictional bar. the immigration judge would have to make that determination in the first place that there's no habious jurisdiction in that circumstance. And that's really effectively what you have here. If the petitioner is challenging his immediate release, he is saying, "Look, there should be no detention." That is a challenge to detention in the first place. Jurisdiction to determine whether someone should be detained or whether there should be a bond hearing does lie with the immigration judge. That is the immigration judge's role. that's their jurisdiction is if the court were to find that 1226A applies, they have the authority to make that bond determination in the first instance and then only after the immigration judge has decided the issue does the court then have habious jurisdiction.

[00:49:00]In terms of the due process uh argument, your honor, what I would say there is that the closest uh analog that we have from the Supreme Court on the due process question, the Supreme Court has not answered the due process question for 1250 uh 1225 B2A. Um the closest analog that we have is Deore uh decision from 2003 where the Supreme Court addressed uh the constitutionality of section 1226C.

[00:49:28]And the Supreme Court there stated the Supreme Court has recognized detention during deportation proceedings as a constitutional constitutionally valid aspect of the deportation process.

[00:49:39]That's at 523. And then later in the same decision, the court said, quote, "The government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings." So if the court were to encounter this issue, we expect that the Supreme Court would find that 1225 B2A does not violate due process consistent with the Deore decision.

[00:50:04]>> Um, your honor, unless uh you have further questions, that's all that I have.

[00:50:07]>> Thank you, Mr. Tanner. Uh, Mr. notice.

[00:50:10]I'll give you a chance to rebutt please.

[00:50:13]>> Thanks, your honor. I I'll take it from the top in response to um Council Tanner's discussion of 1225 versus 1226 and what Torres versus Bar held at the Ninth Circuit. Uh I just I want to flag for the court that in Torres the Ninth Circuit made clear that um although the INA does not currently define the term entry, we have long understood this term to refer to coming from outside into the United States.

[00:50:52]So if entry is defined that way by the ninth circuit and it's its interpretation of entry stems from supreme court doctrine then when we look at 8 USC 1101 A13 which says admission is physical lawful entry into the United States following inspection and examination.

[00:51:19]It is clear that seeking admission means applying for lawful physical entry into the United States.

[00:51:28]that when considered in the context of the words of 1252B 1225B2A and the Supreme Court's decisions in Clark, Jennings, and PROP, which again make clear 1225 applies at the nation's borders and 1226 applies to those in the interior.

[00:51:50]Mr. Rosco is not being properly held under 1225 B2A. He should be held under 1226A.

[00:51:59]Now going now next to Avia and Buen Rostro um the courts there it's it's it's not that they didn't discuss applicant for admission. It's that when they considered that phrase they did not apply the definition that is attached to it.

[00:52:25]And it found it synonymous [snorts] with seeking admission which again the descents in those cases and then the four circuit four other circuit courts to go the other way have made clear that seeking admission is a present action.

[00:52:41]Right? It's it's not for people who have physically entered the country years ago. It is for those who are at the nation's borders trying to come in.

[00:52:53]Um I I I I I the court has acknowledged that the government's interpretation is new. Um I just want to make clear that the interpretation is from July 2025.

[00:53:09]Um so it's within the last 10 months. Um the the policy is cited in our habius petition and in our traverse uh with a link to that policy saying anyone in the country who hasn't been uh who did not enter with a visa is now subject to mandatory detention. Um, two months later in matter of Yehood Fertado, the BIA ratified that new interpretation and in doing so overturned decades of its own precedent.

[00:53:50]Um, essentially taking into account the government's argument that applicant for admission and seeking admission are synonymous when they are not.

[00:54:00]um with respect to Congress uh and its enactment of IRA IRA and wanting to put everyone on equal footing, those at the border and those in the interior.

[00:54:13]That desire was with respect to removal proceedings. It did not deal with detention. So prior to IRA IRA, there were two types of proceedings.

[00:54:23]Deportation proceedings to anyone in the country whether they entered lawfully or unlawfully. And in deportation proceedings, the government always had the burden to show that the person was deportable.

[00:54:36]You also had exclusion proceedings.

[00:54:40]Those were people who were apprehended at the border where they had the burden. They had less rights to go to an evidentiary hearing or trial in immigration court. And so Congress wanted to ensure that removal proceedings collapsed. Deportation and exclusion proceedings into removal proceedings would be applied consistently to those in the country lawfully and those who entered unlawfully.

[00:55:10]Okay. The the in the the enactment did not speak about detention policy.

[00:55:20]Okay. Um, it just essentially put those who, and this is from Hernandez Alvarez, the 11th Circuit case, the new admission doctrine put those present in the United States who had not admitted and those who arrived in the United States, all subject to removal proceedings. Okay.

[00:55:38]But there is no evidence in the record that Congress intended its revisions of 1225 to mandate the detention of individuals like Mr. Rosco who had entered the country. In fact, quite the opposite.

[00:55:55]The committee reports make clear that 1226A would be applied in the same way as 242A1, its predecessor statute, was applied. So, folks who entered unlawfully but were in the interior were eligible for a bond hearing. And so, this discussion of equal footing, it it has nothing to do with custody. It has to do with the procedural rights in removal proceedings and removal proceedings are separate from bond proceedings. Um that has always been the case. Um it's laid out in the regulations right now and in board of immigration appeals precedent.

[00:56:38]Um, speaking now about Jennings statement about how 1225B2A is the catchall.

[00:56:47]What the court meant there is um 1225B1 is those people who are apprehended with false documents or with no documents at a port of entry. 1225B2A expands more broadly to include people who are caught entering in between ports of entry.

[00:57:06]Okay, that's the catchall that the court was referring to. And we know that because in preop the court restated that 1225 is for those at the nation's borders and 1226 is those in the interior. Pop postates Jennings versus Rodriguez by a year. This is the last statement from the Supreme Court. Um uh it pardon me it is not the last statement from the Supreme Court but it's the last statement that's relevant to these proceedings about how 1225 applies to the border and 1226 is in the interior.

[00:57:46]Um this the discussion by government council about 1252e3 and how we're bringing a policy challenge to immigration judge bias misses the point.

[00:58:01]The core legal dispute here is one, is Mr. Rosco properly held on 1225 B2A?

[00:58:10]And we say no, it's not. As the court acknowledged, there's a slew of decisions including the class action from the Central District of California, Maldonado Bautista, rejecting that interpretation. And as I mentioned, uh the government did not appeal the decision on 1252E to the Ninth Circuit.

[00:58:29]Um our discussion of the bias of the immigration courts is with respect to what remedy to fashion?

[00:58:40]Okay. Um it does not deal with the statutory interpretation issue.

[00:58:46]Our second core argument is that as a matter of constitutional due process, even if the court were to find 1225B2A to apply, Mr. Rosco would be required to be provided a bond hearing to get an individualized determination about whether he's a danger or a flight risk because he's in the interior. And it's always been acknowledged that people who have affected a physical entry to the United States, which he has, have constitutional due process rights.

[00:59:16]Again, on the due process argument, our discussion of the immigration court bias is with respect to the remedies that the court would order. The remedy that we seek primarily is immediate release.

[00:59:31]Secondarily, a bond hearing in this court.

[00:59:34]It is not an overall policy argument against the entire executive office for immigration review.

[00:59:42]Certainly, there could be a lawsuit brought on that, but that's not what we've done in this case. The lawsuit is about whether Mr. Rosco can remain physically confined without an individualized determination under this new erroneous interpretation of 1225B2A and as a matter of constitutional due process.

[01:00:01]briefly on the 1252G and 1252B9 issues. Um, this court in Wheeler made clear 1252G doesn't prevent jurisdiction to review a custody determination. um that's supported by uh Reno versus AADC, Jennings, Neielson versus Priop, Guzman Chavez, all those courses, all those cases also reject the government's argument on B9. Uh there there is nothing there to those jurisdictional arguments. Um the court with respect to fashioning a remedy can of course order immediate release The court does not need to wait for an immigration judge to make a determination.

[01:00:51]Uh there there are cases that I we've cited in our briefing by the dozens that deal with immediate release for people who have been unlawfully subjected to 1225 B2A. And the court certainly in habius has the flexibility to order that relief that is just and and equitable.

[01:01:14]Um, with respect to the government's argument that we're challenging the arrest in the first place, we're not we're not saying that ICE could not take Mr. Arosco into custody after his criminal proceedings were dismissed.

[01:01:31]What we're saying is they can't subject him to mandatory detention without a bond hearing thereafter.

[01:01:39]It is two different analyses. If we were to have challenged the ICE detainer or the fact that he spent uh more than 48 hours in Cascade County Jail before ICE took him into custody, perhaps the government's arguments about us challenging detention in the first place would have legs. But that's not what we're bringing to this court. We're bringing the secondary decision to hold him without bond under the newfound erroneous interpretation of 1225 B2A.

[01:02:12]And the last thing with respect to due process, the closest analog is not Deore versus Kim.

[01:02:20]De Moore versus Kim again dealt with 1226C.

[01:02:25]So people who have committed enumerated crimes that Congress decided rendered them to be presumptively dangerous or presumptively flight risks and so they could be detained without bond during their removal proceedings.

[01:02:44]At the time in 2003, the solicitor general represented to the Supreme Court the removal proceedings only lasted a couple months.

[01:02:53]That was incorrect. The solicitor general subsequently corrected that statement to the court. But the more core issue is um there's a class of individuals that Congress decided were dangerous and that's where 1226 C carves out from the default rule of 1226A. But even in Deore uh and in the court's uh decision in preop from 2019, there is space to bring as applied constitutional challenges. So even people who have committed one of those enumerated crimes in 1226 C who would otherwise be subject to mandatory detention under the statute even them they can bring as applied constitutional challenges and that's clear from both deour and preop it's on the it's in it's one of the last sentences in the preop decision from 2019 that our discussion of 1226 and our prior decisions on that statute do not prevent as applied challenges. So the the government is incorrect to suggest that mandatory detention means mandatory detention no matter what. Uh it it there's always a constitutional due process claim that can be brought and in this case if we consider the Matthews factors they all favor petitioner. Freedom from unlawful confinement is a protected liberty interest that falls in his favor.

[01:04:19]the risk of an erroneous deprivation without a bond hearing is exceedingly high because he's not a danger or flight risk. The government has never said that and he's got widespread community support including from law enforcement.

[01:04:34]And then finally, um the the the type of procedure which is bond is something that the government as a whole does on a daily basis. This court knows how to conduct a bond hearing. immigration judges, which we don't think should have the bond hearing, but they can conduct a bond hearing. They do it every day.

[01:04:54]There's no administrative burden and certainly not one that would outweigh petitioners interest here bond hearing.

[01:05:04]>> All right. Thank you, councel.

[01:05:07]Uh, this matter is submitted.

[01:05:10]I want to thank council for their arguments and also thank members of the public who've exercised their right as citizens to come here to this court and see what's going on. This type of transparency is critical. So confidence in our justice system. I apologize that it wasn't a more scintillating uh endeavor. But we we resolve these disputes with arguments with words and that takes place here in a public courtroom. You're always welcome to attend that and see what goes on and we will resolve this matter with words as well with an order I'll get out I hope by the end of this week. In the meantime, Mr. Tanner, I'd ask you to please ensure that Mr. Rosco remains confined in Cascade County.

[01:05:50]>> Yes, your honor. We'll do.

[01:05:52]>> All right. Anything else? Uh, Mr. Cenotus?

[01:05:55]>> No, your honor. Thank you very much and and thank you, your honor, for exercising your discretion to allow me to appear remotely. I appreciate that.

[01:06:03]>> Miss Channer, anything else? Nothing further, your honor.

[01:06:05]>> All right, we'll be in recess. [snorts] Thank you.

[01:06:08]>> Take care.