mcgee anto democracia versus the department of homeland security mean please a court in kendall coffee along with ben cuny will be arguing for the appellants and we're prepared to answer any of the court's questions but it is our plan of presentation for me to address the threshold issues of agency discretion  and we begin with what the judge stated at the end of the decision which is the court neither approves nor disapproves of the executive branch's decision it is of course our contention that this was a matter that should have been determined by an article three judge in explaining the court's analysis he stated that plaintiffs and defendants all appear to agree that chevron deference does not apply from there the court went to informal adjudication or not informally dude occasion how about what do you do with this coast guard manual where it and particularly aides to navigation the interpretation of what the to navigation means in the context of the wet foot dry foot does does that interpretation i mean the coast guard manual of itself do you do with that i have a problem in my head of figuring out what the justice department's responsible for and what a t t s is responsible for and who you give deference to on what not to not in deciding voices can weigh in on that but i didn't find that the the coast guard criteria were particularly persuasive they describe aids to navigation as any device external to this interpretation is is based on how persuasive it is we don't see are we have does this agency have the authority to interpret this statute don't just start there because i mean if it's not the properly delegated agency then why would he listen to them we do and we would certainly say that the coast guard has the authority to enforce a law but we don't we don't contend that they have the authority to determine the maps of the united states and the fact that they have jurisdiction if we look at the for example the meat corporation case there's no question that the customs authorities had the jurisdiction to it inter rulings on what would be a proper classification that cases for whether the day planners constituted dyer's but the supreme court nevertheless said that when you have an internal leak analyzed ruling of interpretation that that does not get elevated deference that was treated as a skidmore matter entirely and that's what you have here you have the cape coast guard talking to the coast guard making an operational decision and that kind of operational decision is certainly something that under the supreme court's the interview last year they interviewed juan miguel gonzalez twice and then entered a written decision on january fifth of that to mulch us year but this is much different from early on gonzales was physically interdicted at sea and he was paroled into the u s so there was actually never a question of whether he was a dry foot arrival we contend and of course the issue here is whether this federal building which had housed federal employees for many years was in fact arriving at the united states but the other difference which i think bears very favorably for our position is that there was indeed an informal adjudication in l a on and that that was what triggered the according to the opinion some chevron deference in the first instance we don't have that here and just as prosecutors calling police and saying it's a good arrest or is a good stop or whatever that's not an informal adjudication we have no one is approved by a wealthy approved but recognized by the courts wet foot dry foot we have no problem with that right that's our problem is deciding what's what put in what's driving that's the issue here all right so if you say ignored it's a matter of how persuasive is it and that's what's wasted on the other side what's persuasive on the other side is what we believe should be an article three judges analysis of the history of the lighthouse we talk about that in our papers and a number of different legal principles and statutes everything from the continental shelf law to the two frankly the treaty of the un convention on the high seas ultimately our position is whatever you call this it's not an informal adjudication once that is recognised then the standard of of a skit different should be skidmore and i just might make one other point your honor they insist in their brief that a p a standards do not apply to this particular process because they they say it's in an immigration matter outside of a criteria so whatever this is we submit it's an interpretation conducted in the course of a coastguard operation it deserves our personnel and respect for the work they do but it doesn't tie the hands of an article three  just now that come complaints are time i just wanted to summarize by saying from our standpoint the determination of what constitutes the united states of america should be intrusted to the judges of the united states of america that is the status of the lighthouse we do agree that the coast guard manual is an interpretive manual but nowhere in the cited manual nowhere in the district judge decision is there any coastguard determination of locality of lighthouses there is for example there are for example light houses on dry land lighthouses on piers all the coast guard manual does identify what is the functionality of a lighthouse it can be a house where people reside and there is testimony in this record not relied on by the administrative determination that this was a living house the question is where is that living house there is testimony in the record and then it was abandoned in two thousand and fifteen it had been utilized but and abandoned house is no longer it does not derive itself as no longer being property of the state of florida property of the united states there was undisputed testimony at the hearing undisputed testimony in this was jose abreu formerly with the department of which by the way is an agency that has significant knowledge an involvement in this entire area and agency that was not consulted by the coast guard and agency for which consultation would be normally a part of informal adjudication to gather facts outside the agency as opposed to just an operational determination but mr brutus defied quite clearly that the lighthouse was the property of the state of florida it was deeded with a physical deed to the united states of america it had a deed ownership it was owned by the united states of america it was operated by the united states of america and people lived at that location it was actually a place where communication was given to those individuals who lived not just visited but lived on that property and this is by the way docket entry forty five starting a pages twenty one the evidentiary hearing going through page thirty two deeded to the united states by the state of no the deed conveys four acres of state of florida property three point nine nine acres to the united states for the construction of a lighthouse not a light beam or water and i think the highest point is ten feet of water according as i said it's all underwater yes it is affixed to physical land with under water and the your argument is kind of ok you want to not pay attention to any of the governmental decisions giving them no deference and then we interpret the law the statutory law of what is the united states for purposes of the immigration act and we've got wet foot dry foot so your argument is because this is within the territorial limits some florida and this this piece of land was territorial limits of florida and because it was a habitation at one point it satisfies the dry foot rule such really we add more facts to that your honor but that essentially and we put those two things together florida planned and it was a lighthouse occupied building at one time by the united states put those two together and you've got satisfaction of the dry foot rule i'd add a third one deeded property so as opposed to  a an expanse of water deeded property meaning identifiable property i would also note an important item it's listed on the national register of historic places again that lighthouse is a place in the united states and it essentially there's no difference in the coast guard manual between the way it defines an aid to navigation as a in this lighthouse as it  island that is off the coast of the state of florida visited only by a boat that is plainly the united states and what we have in this case and finally your honor is that the seven mile bridge case the predecessor of the mento case movement to one makes clear that judges are to make these decisions about localities in the united states that's something that the agency should not have been able to do and their decision should not be entitled to any binding authority on the district judge thank your honour's i have one more question yes ok it seems to me that name means is the business of the justice department right or maybe not i mean i'm like b i is in the justice department but ice is in homeland security so i'm a little confused on this but the justice department is representing the government here do we on any deference to its litigation position your honor we've we've cited a number of cases that make clear the united states supreme court has said in in a supplemental authority case but there are other cases that that we've  in the brief that litigation interpretative positions are entitled to essentially no difference whatsoever they're entitled only to the weight that christianson gives the extent that the interpretation has the power to persuade united star acumen is into the physical confines of bright eyed states we say it was the united states a twenty twenty four of them twenty three were sent back to cuba right twenty seventeen of them have been repeat he have been sent to a third neutral country not to the united states but to another country and three of them is that because that they wanted to go there here that's because at guantanamo where they were taken from the lighthouse to guantanamo they presented a credible fear of persecution in c that refugee island they are in australia or in the realist i guess to the extent seventeen have been sent to a third country and then the rest were sent back but the questions of deference and adjudication are squad straightforward what did occur on may twenty fourth of two thousand and sixteen was an informal education minister to procedure act of nine forty six carries with it within the law the circuit no positive law on the procedures that need take place for an adjudication in to the extent that my my colleagues are on the on the opposing counsel through channels initially on on may twentieth notice of the interdiction and interdiction was taking place and a determination was made of feet wet color photographs were sent of the migrants  disposition or explanation that the migrants were resisting interdiction that they they had armed themselves with metal pipes and debris took place the coast guard communicated that once the addition interdiction was initiated two of the twenty four voluntarily left the vessel and came on to the coast guard small boat without making it to this navigational aid that's six and a half nautical miles off of the coast of two of the three remaining were found once more on the lighthouse they climbed up to the top and it hit i believe and then a third was found on the final of the twenty four was found on a piece of flotsam floating where is the difference here do you think and where should it be i mean we've got the coast guard manual we've got the black foot dry foot rule i guess we're all ok with that and then we had the coast guard manual is there anything else that guides us that we give deference to needs to rationally connect the facts found in the conclusion made and in the broader question that my opposing counsel articulated was the question with regard to agency interpretations of law and in this circumstance that deference skidmore at minimum but under the law of this circuit gonzalez deference is appropriate i would invest with would best with the department of homeland security the the t policy in addition to the ninety four ninety five migrant accords all predate the creation of the homeland security for the homeland security act of two thousand and two which followed the september eleventh attacks and there was a large reorganization within the executive branch that also principally focused on the immigration infrastructure so it is legacy justice department that is correct but the interpretation of law and now i think that is salient would be this manual now correct the manual does not carry with it the force of law so under kristensen me to and then barnhardt that follows that the eligibility for deference would be skidmore at a where they're making a decision to harmonize the agencies so you say the original decisions that we're talking about were justice department kind of in the same shoes that and h h s would be now  well as the state department so i think if you want if you want to look to good language that this court can observe with regard to what does drive feet mean under the what foot on foot policy as applied here i would i would refer you to the one thousand nine hundred six a we'll see a memorandum november twenty walking at that and it states undocumented alien seeking to reach the united states aboard a vessel that has reached the internal waters the united states at the time of into addiction would have not come ashore on the united states quote dry land and quote are not entitled to deportation proceedings or other proceedings under the i and so the question here is this using that language in that language alone the reference is in waters not even territorial waters which the united states extended at the end of the reagan administration from three miles to twelve miles the lighthouse at play here is actually on  line so they're not even in the internal waters of the united states so that's a key distinguishing fact from let's say a seven mile bridge that had a break in it that district judge marino opined on in two thousand and six which the government respectfully disagrees with but you know this is the law of the case for that particular body here it seems that what opposing counsel the only theory that would be based on law and supported by anything  would be an impossible standard to classify this lighthouse as an island i know that this lighthouse does not carry with it its own extension of the territorial sea of united states it's within the territorial sea of the united states so it's not that it twelve mile radius emanates from it you know with regard to the particular provisions of the immigration nationality act that are interpreted such that deference is appropriate in the law of this circuit gonzalez deference  law and certainly the government observes that but it comes down to a simple title eight question eleven zero one eight thirty eight states the continental united states that's one what is it's one piece of information continental means terra firma every piece of information that undergirds that then what foot dry foot policy that was rescinded in january twelfth of this year indicates terra firma and with regard to the coast guard's manual and in particular do you one interdiction of undocumented aliens the manual states relatively clearly that that it a lighthouse or navigational  something like this would not qualify the manual does observe that even as a question of law let's say a bridge or something that is connected to land physically connect you could walk from the bridge to terra firma dry land could as a matter of grace be classified dry foot but that is not the case before this court obviously and we have a lighthouse which is an aid to navigation that is on dry land so i guess your argument is that whenever an indy one does not refer to that of it that's certainly not dry foot and i think these arguments that somehow a historical patina the fact this was built an eight hundred eighty that it one point it physically housed some persons the fact that it i think the argument summer land and it is the property of the united states the territorial sea of the united states was actually expanded from three miles to twelve miles in the late one nine hundred eighty s but you can land on the beach and hide tad the area question like a sand bar for example under the law the interpretation of the immigration nationality act based on all of those authorities that the government is or take elated orally and also in the papers and if the media in water line is if that at one time of the day like that sandbar exists in that medium waterline happens to be above it that's actually technically whitefoot but that what they refer to is a station yeah it's average the average elevation but here we're talking six and a half nautical miles off of the coast it is a very different circumstance in the fact that it happens to be drilled into seabed or that it is classified as property it is property of the united states just like a buoy would be does not under immigration law render that dr foote for the purposes of  my understanding is that the that the rate of interdiction as dramatically dropped that is not part of the record but i believe the court can observe no i'm not talking about the right of interdiction i met cases in court where people are hari now had his case and he ruled in that case are there other cases we know about i'm not aware of any ok the current order went broadened doctor broadened rescind that policy so the dr foote aspect of it is rescinded and on june sixteenth of this of this year as well the president's national security memorandum strengthening strengthening the relations between the united going to send them back well if someone makes it to land of cuban origin or just any origin the united states no longer has a policy to specifically for cubans to guide discretion for special am i guess well if they're interdicted at sea there are no rules this would be if there's like a land border or if they make it to let's say the pier that physically is connected to land that would be the case so with the remaining time that i have just t counsel provided late last night is largely modified by campers as pits in one nine hundred seventy three case that indicates that affidavits to the extent that they provide an explanation of the reasoning they provide guidance not the reasoning tha the government acknowledged in the lower tribunals and in the papers that skidmore deference only the power to persuade applies under any circumstances but for the gloss of was the prototypical informal adjudication case that involves circumstances that are ripe for in formal adjudication a resolution of disputed facts with the informal educator the department of justice was the informal adjudicated with ultimately a decision made by the ultimately the attorney general but it was through the department of justice move that over to the department of homeland security and what we have is the equivalent of a law enforcement agency the u s coast guard it does of things but it's a law enforcement agency so officer who is making this arguably informal into to cation was also doing it pursuant to advice wasn't he within totally within the structure of the united states coast guard the enforcing agency not within the structure of the department again using the ele and gonzales analysis the law enforcement agency makes the determination and the united states in litigation says that's the analysis that applies we say that's not in formal adjudication and there is no case that suggests authorizes informal adjudication gonzales case discussions in put going outside the agency to speak with people and then ultimately making a resolution that is determined at it doesn't really matter where but the highest levels of the department of justice yes the overall department that essential oversees the agency that's in terms of big picture law why this cannot be facts in this case as presented before district judge calles are undisputed as to the points that we have raised that being a piece of property identify deeded constructed a piece of property that contrary to what the united states of hers is always has been a part of the state of florida the state of florida conveyed that property and requires the judge to analyze all of the items we think in fairness the district judge should be given the opportunity to hold the hearing at which he the district judge will make the decision based on the competing to vacate the decision and remand the case for further proceedings or if the facts are clear to find that the wet foot dry foot policy was established for dr foote thank you thank you the case submitted