just for the delay your honor no no apology necessary and i apologize for my my voice not at all may it please the court i'm scott stewart on behalf the united states if i may judge fletcher i'd like to say five minutes for  l thank you in this case the district court issued an extraordinary nationwide injunction halting a critical executive branch rule designed to prioritize urgent asylum claims deter marital bliss ones combat human smuggling protect vulnerable migrants and find a lasting diplomatic solution to the shared international problems presented by unconstrained mass migration this court stayed that injunction part and the supreme court stated full this court should now vacate the injunction in its entirety i'd like to begin your honour's where briefs do and where the main the leader shoes are in this case with the statutory authority issue as we've explained in our br department heads the attorney general the secretary of homeland security have square authority to issue additional conditions and limitations on the granting of asylum and the statutory sections upon which you ally are sure you it but b to see the attorney general may may by regulation establish additional limitations and conditions consistent with this section under which an alien shall be ineligible for asylum under paragraph one and there's a sort of an odd parallel later turned in general may be vied by regulation or any other condition or limitation on the consideration of application not inconsistent with this chapter those of the statutory authorization  right is there anything here in the language that i've just read to you that suggests that the limitations are conditions imposed by the attorney general under these sections have to be in some fashion similar to mention that yet be one provision this is be one a were established is or makes clear the discretionary nature of asylum it's kind of a baseline it's a benefit to know which no one is entitled but yeah but that's a different proposition may grant asylum assuming eligibility i mean we've got this very odd procedure actually under which the b i a and then it becomes to us we determine eligibility and after that the attorney general in his or her discretion determines whether to grant and that's what i look i regard the one a as addressing that discretion i think there's discretion there's some discretion and at each it each part your own i mean it there's th the discretion you're on i mean even what those what those those discretionary are what those bars i should say they they point out the circumstances in which the executive branch can't deny it can't deny asylum and it gives the the united states for more than a week before making an  it's what i put it this way your honor i mean there could be if there could be i don't see how that would be squarely inconsistent with something in the statute the debt statute does say there's a what you have to file within one year but that would that's not a square preclusion of tightening tightening that bar saying like haiti asylum africans could now apply within eighteen months that could potentially raise a conflict but tightening the timeline wouldn't it could you know there could potentially be other non statutory claims available in that case but i can't at least at this point think of how that would be inconsistent with something isn't it at least in considerable tension with the way we approach the statute i don't know what to call it was also used by but the  circumstance where again if the government respectfully disagrees with the state in a ruling of course but where this day panel believed that section one thousand one hundred and fifty eight ones provision of entitle giving somebody a right  to a private apply for asylum whether or not they applied at a port of entry was basically rendering rendered a dead letter or meaningless by denying that to two folks who in that circumstance were going to be rendered ineligible based on their unlawful entry i think it's we don't have that sort of square certainly even if even if the hypothetical your honor is positing regarding time timeline we're closer case or something more like that this one is not such a case we don't have that kind of situation here here there is nothing in the asylum provisions that says you can't you attorney general or secretary cannot adapt establish an additional bar race based on the possibility of based on actions in a rd country your relationship to a rd country or things that might happen in their country if anything those provisions show that this bar is complimentary and consistent and promotes similar purposes it gets set up folks who just like in the firm resettlement bar and see if their country bar don't need this country's protection or are for or are unsuitable for the for the farm resettlement provision is a good example your honor the logic behind the firm resettlement bar is of course that look if somebody has can seek you know as has failed to even seek asylum as not shown that they have the urgency needed potentially bears on the merit of their claim and support of a kind of categorical judgement of the sort the agenc having i'm having trouble following you when you say that the policy at issue here is like the firm resettlement or safe rd country policy that written specifically end of the statute but what the government of done here seems to me in severe tension with both of those things st as to firmer settlement there's obviously no firm resettlement firm or settlement as i think you quite correctly said is based upon  premise that the person or people are safe they are firmly resettled and they have no need for asylum here in this country similarly with a safe rd country that's very specific in its detail it requires st off an international agreement bilateral or otherwise and it requires various procedures we've got nothing here in fact the evidence is fairly strong that the people who are barred by the administration's policy are in fact quite unsafe where they rule considering whether an alien's relationship with their actions in a rd country through which they transit it could also warrant a categorical bar the rd the firm resettlement bar does not include language to be effective is that is likewise because they haven't even demonstrated the urgency of their claim and have shown that they too are they haven't demonstrated the urgency of their claim what do you mean these are people who have come to this to our border there's the king the safety issue we as we've said the agency heads were able were permitted to determine that mexico has a functioning silence system that it has capacity and that it is a signatory to the relevant agreements and can address it can address these claims nothing in the statute that requires those additional procedures as to with respect to the aspect of your honor's question regarding urgency as as my friends recognize and some some aliens pass through multiple countries and if it's true the agency heads surely could reasonably conclude as they did your honor that the failure to seek relief in even a single one of those countries sheds light at least in many cases on the urgency of their claims and that it's it presents such a  systemic broad problem that it does warrant a categorical rule to prioritize the most urgent ones those who have really been trying to seek relief that the earliest opportunity and deep prioritize others who have not sought any sought relief in gotten a decision on why does live speak just as much to the question of whether they're going to be safe in that country they're passing through i mean the safe rd country provision has a procedure for entering into an agreement with that country and the attorney general determining that in that country that have access to a full one fair procedure and so on and so forth none of which is represented in the current provision that says if you pass through a rd country you can apply here my answer there judge clifton is that again the failure even to to to seek a result to seek relief in a in a rd country in any rd country that somebody transits is itself probative and what we are what of the lack of urgency and potentially the lack of merit to a claim a i started by saying why isn't it just as probative potentially as to whether that rd country would provide a safe place what i would say there is your honor your honor is that to the extent that's a different viewing and weighing of  the evidence of the facts and of the experience laden foreign policy lane determinations here and the heads here are well position to say look you know on a significantly large scale what this shows is that people in many cases who are coming to claim asylum in our borders and gain years long release into our country do not have original claims they haven't showed that there are claims or urges they're not even trying to get relief in other countries and that's the agency heads are well positioned to say that that's that's a problem and it's something that we should address on a categorical rule so it's a question of weighing the relevant evidence and making the relevant terminations what evidence it's sounds very theoretical i don't understand the theory i mean the idea is that once they've gotten out of pick your country on doris then they should be satisfied getting someplace that's not honduras but that doesn't say one way or the other whether the place they are let's assume it's mexico has an asylum the system that is open to them has a place that they can be safe while they're being process to the extent that the rationale for this rule is we've got this huge backlog shoving it off to another country doesn't mean the result is going to be a resolution of the claim any sooner the safe  rd country provision set standards findings or determination has to be made before you redirect somebody to a rd country i don't see any of that reflected in evidence or anything else in what's been put in front of  here but you're on it there's nothing in the statute that requires those similar procedures to apply in this context the safer country context can apply in a situation to sending somebody to a country they've never been to before and congress embraced procedures there that made made it very clear that somebody would would be fine being sent to that country but here the agencies can also say look we have this is question our benefit we're not we're leaving on touch with holding a removal cap protection those things that that address not uncommon issues and we're leaving those untouched but given the strain on our system and given what we did agency see is the systemic problems about people claiming relief but but not having  saying that that's not a reasonable assumption here because of the problems the people things in applying in mexico and so the question is where did the agency grapple with that criticism of the rule and where did it's a question of failure to apply anywhere she raises questions about validity urgency and given the overwhelming strain that we as a country are facing of migration this is a reasonable and congressionally authorized tool to try to share the burdens allocate those more equitably and find a more lasting solution to what is a very very challenging situation as to mexico itself at the carry over paragraph one hundred and thirty three million eight hundred and thirty nine thousand two hundred and forty is where i know some of the key points about mexico being a part relevant agreements as are other countries mexico expanding its capacity the record also shows that this kind of foreign affairs engagement has increased mexico's efforts to combat human trafficking and deal with the shared migration challenges good morning your honors may please the court legal learn from the a c l u for plaintiffs i want to begin with the question that judge miller asked the government because i think that forces the government to join issue on the statutory question and then i want to turn to both the stature question and the arbitrary capricious points that the government was making in response to judge clifton's questions there's two ways to understand this statute because the statute as judge fletcher pointed out has very explicitly said that any additional limitations or conditions must be consistent with the whole of section one hundred and fifteen thousand and eighty one dollars way is the way we interpret it to be that whatever the government does whatever additional limitations or conditions has to be consistent with what congress was getting at in the statute the government has taken the opposite position and said any restriction they want to put in is consistent with the statute because the statute doesn't guarantee anybody the right to apply for asylum so i think judge miller's question was the right one what about a deadline moving the deadline from one year to one week obviously when you set a deadline congress has competing goals they don't want someone walking in ten years from now and saying i want to apply for asylum but on the other hand they recognize that one week is too difficult for someone who's fled a country that is traumatized but under the and the implications of the government's position are this they could move the deadline from one year to particularly serious interest crimes they could have a moratorium on asylum for five years so the implications of the government's position cannot be congress could not essential say we're going to allow the attorney general to eliminate asylum and i want to be clear about it this rule effectively eliminates asylum except for wealthy people who have the ability to fly here everyone enters through a land port at i mean when they're seeking asylum ok so interesting to you that the difficulty with i think without reading of the statute is that you know there are these various exceptions that you just talked about but somebody who passes through the exceptions doesn't have an entitlement to asylum and so i'm wondering if your position doesn't amount to saying that even though the attorney general has been very broad sorry no i appreciate that question and i think that goes to one of the issues that judge by be looked at in the st asylum and case which is that you can often look at a factor as one of many as a discretionary factor even if you can't make it a eligibility and that's the exact argument the judge by be rejected in the st east bay case there are a lot of times when you can give it some weight but that the i a e a in this court have said you can't give it dispositive weight and so i think the implications of saying the government you tony general can do whatever he wants as long as it's more restrictive really couldn't make sense he literally could eliminate the asylum the asylum statue and the government says well we can give meaning to consistent with we can't do anything that expands the rights of people to apply for asylum expand eligibility well that that does not that's not a tenable reading of the statue because it says conditional additional limitations and conditions adding making that deadline eighteen months when the an additional limitation or conditions so congress had to mean consistent with meaning restrictive conditions it couldn't be that congress is saying to the attorney general eliminate asylum if you want and i think you know that goes to a larger point that judge by be made in the st is that this is ultimately a separation of powers case and the government says we're figuring out how to deal with the current influx of asylum seekers and judged by the said but that's a classic administrative law you need to go to congress you can't go around what congress said well classic separation of powers would classic just statutory interpretation exactly and led government relies upon the it says it relies more broadly on a but i think it really of relying on those two sections that rising attorney general to do this this is a statute that is implementing our treaty obligations our treaty obligation is to provide asylum broadly is tasked with implementing these treaty obligations and the refugee obligations and interpreted them i think that's an absolutely additional reason and i think once you get to the point where you say the attorney general cannot do whatever he wants it has to be consistent with the aims of congress then you go to where judge clifton was and look at what provisions illuminates what congress was trying to do when someone passed or a rd party sorry passed through a rd country and you look at the two provisions in there one is firm resettlement and it specifically in this court has said it you need to be permanently resettled so you are safe the other is the rd country agreement and that sets up a process where the other country is going to to take these people it has to provide a safe haven and there has to be a fair and full asylum process you look at the rule it doesn't take anything into account and so what's implicit in that in this rule imagine if it was explicit because that i think it would not change the meaning of it but it would make everything clear the rule says if you transit through a rd country and don't apply then you can't you can seek asylum in the us imagine if it explicitly said what's implicit in said even if your claim could not be heard in that country because it's not a claim like an elegy bt claim that's recognized and one of those countries imagine if it said even if you're not going to be safe there imagine if it said even if your persecutors are going to trail you there but that's of the rule doesn't take into anything into account and then i think it goes to the a larger question about arbitrary and capricious there is absolutely no evidence that this is prioritizing meritorious claims i think the pages that the government cited to judge  clifton you look at those and you'll see nothing about the safety in mexico that the government was absolutely required we don't want to sit here and testify in the amicus briefs give you a good sense of what's going on in those countries but it has to be within the administrative record it also has to take into account what's been said about these issues before this court in the maze said it is not a basis for assuming anything about why someone would have transited through a country it's simply foreclosed that is not a reasonable assumption as judge clifton said and equally probative and on the record before in the administrative record it's absolutely what the proper assumption is that it was it's just too dangerous for people to wait those asylum systems don't function maybe the administration could come with a better record and right now we don't think so given the amicus briefs and what we know about it but it doesn't really matter it's ultimately what's in the administer the four corners of the administrat out there's really overwhelming evidence that the reason people don't apply in other countries is because it's too dangerous i think again if you look at the the whole record and you look at specifically the pages the government cited you'll find nothing that justifies the assumption that people don't have an urgent claim to apply in one of those countries unless there's questions about that i would turn briefly to the notice and comment claim we believe like in the st spake case asylum band one that that the government needed to have notice and comment and they have not justified the lack of notice a common with good cause or foreign affairs at present i think it's basically the same case as these pay one and and what i would note is that in that st case judged by the said look what you have here is not sufficient to justify avoiding notice and comment the government did not put in additional evidence to justify it they did not put in expert studies they did not show prior examples but they've put in as a few additional newspaper articles essentially if a few newspaper articles that don't even specifically address the issue we hear about surge were enough to have good cause it would it would the harder problem under notice and comment is the foreign affairs honor so i would start with this court's decision and you see me which said that you have to have definitely undesirable consequences flowing from it and what i think you see any of the cases point out is if you have something that's a classic function foreign affairs function a diplomatic regulation something along those lines that the government may be entitled to more deference that that's going to interfere with foreign affairs but something as judged by be pointed out like immigration which implicates foreign affairs in the same way that lots of things do but simply implicates if it's not a classic foreign affairs function you could drive a truck through the exception if you said every time there's immigration you would  have an exception to notice and comment i think so it's the government's obligation and judged by the explain that in the st case to show why there actually would be definitely undesirable consequences the government unlike you seen it did not put in affidavits they could have even put in camera affidavit i think what the government is basically saying he was look we're in negotiations so conceivably it could harm foreign affairs that that cannot  rule might help us in those negotiations i think iran or anything could conceivably help and i think that's what they're saying to you and because there's always negotiations but i want to make one point that i think is actually dispositive the judge by be made the question is not really whether there is going to be a rule it's whether the publication of the rule versus the announcement of the rule is going to cause those problems when i think what judge by be pointed out is announcing the rule versus public publication of the rule is not really going to change how the foreign affairs plays out and so i think that's really the critical point that judge by be made is look you can announce the rule you can publish the rule either way the other country knows what's going on it's not really going to affect it one way or the other and i think the government's obligation was to do something in response to what judge by pointed out and they put in no evidence to suggest there's actually a foreign affairs problem here   lets the courts further questions about the notice and comment what i would just say is we urge the court to read the record and see how little evidence of fact zero evidence showing that people don't apply because they don't have an urgent claim and the final point i want to make is were guarding kids because i think that got short shrift in the briefs that's an additional reason why we believe the rule is arbitrary and capricious the government says well congress hasn't precluded us from applying this rule to kids well even assuming that were true the government still has an obligation to say why are we going to do this why are we going to apply it to kids when congress exempted from the rd country agreement provision exempted from the one year deadline kids because they knew that kids have a more difficult time figuring things out they knew that maybe one year is not enough for kids to figure out how to apply for asylum they knew that gets sending them to another country they may not be able to figure it out and so the government says well congress allowed us to do it again we dispute that but even so on the arbitrary capricious point they really would have had to have a reason to say we are going to send kids to another country or we are going to force them to try and navigate the system in mexico which by the way has a thirty day deadline for applying for asylum so what child was traumatized running for his life from honduras or all solder gets to mexico if they can't figure out in thirty days how to apply for asylum then that's it so the government was really obligated to say why is this makes sense from a policy reason from our trink appreciate standpoint and finally are on our i would want to make one point about the nationwide injunction because i know that the government is may raise that on rebuttal and i want to just pick up on the discussion you were having with the lawyers from the prior case we are not asking we know that there are  circuit cases that say in the immigration area there there should be a presumption that the judge is going to apply nationwide and that flows also to some extent from the a p a rules we are not asking for that to be the basis for a nationwide  or we are saying that on the facts found by judge tiger our plaintiffs would be harmed without a nationwide injunction even if it was a circuit wide or client base because our clients operate around the country they do more than just direct representation so we are simply saying that on the facts in this case it's with our attitude and so that's what was our what is your what is your interest in an injunction that applies to asylum seekers who are not clients of view or you're the organizations you represent you're out of that's a very good question i think that what the evidence shows in the affidavits on rebutted and which i just hire found is that a good portion of what our clients is provide trainings and workshops for people who are not actual clients unfortunately it's not the end and i saw that but i was going to say i'm persuaded by that given that th circuit immigration law is not necessarily the same as eight or ten or any other circuit and so if you're training people to deal with immigration cases arising in texas you're going to have to deal with a different body of case law  they are your honor and so what's the harm in recognizing the different circuits have different precedent well but i think but i think your honor that we do more than just simply represent people directly so if there is a training and the training then has to be we would not be able to doesn't have to train if you're true if you're training people and texas i hope that training recognizes that the th circuits precedent is what's going to bind those it does your honor but the injunction then when run to them so they would be denied asylum automatically because they are saying the only people who would get the benefit of the injunction are the actual retained i presume somebody has raised that issue in the th circuit so so i'm mystified as to why th circuit rules i mean it should of course we should rule everything but the supreme court hasn't recognized that yet your honor so so let me let me i realize that maybe i'm not being as as clear as possible  our our clients represent people all over the country so it's not as if we're only representing people in the th circuit and so weird any idea of numbers or proportion or anything but a significant number of people and so law labs for example one of the plaintiffs has offices all around the country and does a significant significant amount of trainings workshops all over the country the other problem is they don't know ex ante who is going to ultimately be a retained client so they do trainings for example all over you they don't know at that point who's going to be a retained client so if only retained clients are getting the benefit of the injunction then they would have to constantly be telling people both ways and if you end up being a client of  i think the other thing that judge tiger pointed out is it would make these four organizations the most popular organizations in the country every single person would say well we're going to be denied asylum unless you decide to retain us and i would also make but even without that the th circuit becomes popular enter in california or arizona don't enter in new mexico or texas but isn't that the fact of life already and yet people do what they have to do i think that's true to some extent i  just note that the government is not actually asking for the circuit wide injunction they feel like the only injunction that works is retained clients and i think for the reasons judge bybee said that judge tiger said below in the affidavits something that only applies to retain clients would knock out most of the work that these organizations are doing about training if you're talking about precedent if we speak as a panel in a published opinion that's going to apply within the boundaries of the th circuit what i'm not hearing is a reason why it should apply in new mexico but i think because your honor our training would not make sense in new mexico or wherever in the country if the injunction didn't apply to th ticket to a nationwide injunction in every case of a new you don't need to certify a class anymore you just need an organization that says we want to tell people what the law is and it's easier to do that if the law is the same everywhere  traditionally that's that's a fair point except what i what i think is the limiting principle is there's not really that many organizations that actually have this nationwide scope and i think so there are very detailed affidavits in the record that judge tiger the work so we would never of put it in an affidavit saying that we are harmed we would just be harmed by the litigation that's not a proper basis but these organisations are now fighting all over the country to represent people and do more than direct representation so why should they be able to take a favorable decision they get someplace and make that binding on everybody else so your honor i think you're going to the percolation point and i and i appreciate i want to address that i think the percolation point is a fair point but i don't think it actually stops other lawsuits so there's one going on in d c and ultimately all the lawsuits will keep going maybe they'll end up in the court maybe maybe they won't but i think p continue i got to tell you my fear is the old get exactly what we got here which is the supreme court saying we're not going to one district judge someplace make a rule and so we wind up with the state that doesn't even let that court speak to its own territory and the nationwide injunction is a two edged sword not just chronologically you know everything we hearing today eight years ago we heard from the other side it's a serious problem and and just just telling me that well it's going to make it harder for my clients other parts of the country it's kind of a yeah i know you're on our that's all fair and i hear what you're saying and so i would just close by by saying that we don't think there's a categorical rule are a nationwide injunction we are simply saying on these facts and i think it would be your assessment based on the affidavit your in the lack of rebuttal by the government judge tigers findings whether we would get full relief here unless there's further questions thank you point is that the plaintiffs theory here in the district courts approach is that the safe their country provision and the firm resettlement bar have a kind of field preempt in preemptive fact where they deal with situations where where an ali statute means maybe it is maybe it isn't because both of the lose two sections require that the regulations restrictions be consistent with the statute and it may not be a tight used them generous principle but it may be th regulations have to be broadly consistent with the thrust of the rest of the statute i mean i think again starting from the discretionary nature of asylum the ability to sweepingly deny it your honor i think that that's that comes of the problem a little bit after eligibility for asylum has been determined it is in the discretion of the attorney general who are actually to grant it it is not entirely discretionary as to whether someone is determined to be eligible for asylum again there is broad discretion in value in acting regulations that address that matter judge fletcher that's that's the question how broad is the discretion and here for the reasons we've explained this the this rule is consistent with those provisions the other points i w why is it consistent i understand it is not directly contradicted but why is it consistent because it's it's consistent with the aim and thrust of those other those those other two bars which get at the get at the prop and  characterize the am interest of those other two as i said before your honor the firm resettlement bar the logic of it and say for country provision they set out situations where somebody has such a good circumstance or such a strong venue a place to live that they'd categorically do not need asylum from there you go ok and so i take that as an accurate description and why is the administration's policy that here's challenge consistent with that because what we have is evidence of they have not applied and i think for good reason asylum in guatemala they've navas macliver asylum i think for good reason in mexico they're safe in neither place those are decisions for the country it focuses the record here focuses more on mexico you're going but the rule applies to guatemala as well don it does but aliens will transit in mexico and we it requires applying in only one of those countries and the face of the rule explains mexico why why mexico will doesn't actually he's i mean i look at the pages you cited those are the pages i remember looking at before that noted that mexico had an asylum system and had a certain number i think maybe up to fifty thousand applications in a year and so forth i didn't see anything there that spoke to safety but safety your honor that's only that's not the primary point of the rule it's a question of the primary point of asylum again but that but it's you rule the immediate effect of this of this rule is a tool that helps ongoing negotiations gives us leverage forces our foreign partners to confront the challenges of migration it falls with them for an exception affairs exception for that reasons and for the other reasons we've given with respect finally to the nation wide junction point i think your are did very well to capture a number of the problems with the universal injunction stifling percolation making things an emergency where the supreme court unfortunately is to step in on a number of cases we don't really have workshops and so forth there's no cognizable interest for these organizations to have a particular workshop model or particular trainings it's in that all goes to why anyone junction at all should go to bona fide clients of these organizations they have not my friends  identified a single bona fide client and well but i frankly am willing to accept that they exist because at least one of the organizations has offices scattered around at least several states member of missouri was on the list someplace and so for so i'll accept as a given they have actual clients who would be affected potentially as to whether an injunction in this case apply where they were why is that not enough it's their it's their obligation to demonstrate with evidence that a particular person would be affected your honor and i think the reason the likely reason that they didn't come forward in do that is that it soon as you start coming forward with clients it makes quite clear that they could bring individuals before a the maximum of an agency's rule making authority because there is a square statutory provision saying that the agency heads can adopt additional regulatory bars on top of statutory ones it's not an implied delegation it's not just it's an explicit grant of rule making authority which which gives kind of maximum record recognizes maximal discretion to to adopt those bars but that seems like a reason that you would have a strong argument for several months but you haven't made the argument at all right i mean i think i think our answer is i think the statute is quite quite clear on that your honor and that you know at step one of chevron we do have you know there's it's clear that we can adopt this kind of a bar that nothing in the statute prohibits this kind of a bar and this is consistent with our discretionary so are you asking us to apply chevron i mean i  i think you i think the way it framed your honor is that you don't get to an ambiguity phase or a step two phase or a anything like that it's just we're right on the statute at step one and that that solves the issue and i think that's that's what i think i heard the answer is you're take it if that's the way you could get to the result you wanted to we did i think we take it for for a victory you're on again i don't think the court needs to go down that road ok thank you your honor i think most idle helpful arguments these days thank you were governor versus mars invented for incision and that concludes our proceedings for this morning