Thread by @ImmCivilRights

THREAD
Live-Tweeting 9th Circuit Oral Arguments on the regime's Remain (and maybe die) in Mexico policy in @ThinkLawLab v. @SecNielsen
The visionary work of @AlOtroLado_Org's @eeerox, @luzenlafrontera, @Noraistired and an army of volunteers and staff made this case possible.

Probably won't come up, but worth noting the lawyers and human rights defenders who developed the factual record in this case have been targeted by the U.S. and Mexican governments nbcnews.com/politics/immig… @JuliaEAinsley and @TomJonesNBC nbcsandiego.com/investigations… brought this to lt

At stake today: Whether thousands of lawful asylum seekers will meet the same horrific fate as kids we worked with in Tijuana in December: sandiegouniontribune.com/news/border-ba…

The two provisions at issue right now and the Supreme Court's understanding of them are here.

The government argues it has the discretion to unilaterally convert people who might be in (b)(1) (expedited removal) into (b)(2), (full removal proceedings with an Immigration judge)

To the ears of an immigration lawyer, getting to go in front of an immigration judge would normally be preferred over an expedited removal proceeding with a DHS officer. The reason DHS uses the facially more favorable part of the law is to trigger the contiguous country provision

Judge Fletcher points out that in its Reply brief, the government characterized asylum-seekers arriving at the border as "more culpable" than other applicants.

Judge Watford probes how a policy called the "Migrant Protection Protocols" doesn't require the government to ask if the person they're trying to throw back to Mexico if they have a fear of harm in that country. At issue is nonrefoulement obligation under 1951 Refugee Convention.

Today the government argues it doesn't have an obligation under US law to ensure people aren't harmed in the country it's sending them to, so long as it's not the country they fled.
Obligation: Don't return people to harm.
Policy: Don't ask if they fear harm.

DHS's statistics offered today are starkly at odds with the survey conducted by @immcouncil and @AILANational, which found 90% of respondents surveyed feared harm in Mexico: americanimmigrationcouncil.org/sites/default/…

.@ACLU's Judy Rabinowitz, arguing for the Plaintiffs, points out that BIA decision in Matter of E-R-M- (justice.gov/sites/default/…) notes that 235b1 still applies to them, even if government exercises discretion to put them into regular, Immigration Judge removal proceedings.

Judge O'Scannlain asks a really poignant question: Why would the 11 plaintiffs in this case give up their freedom in Mexico in exchange for mandatory detention in the United States?
@ACLU's Rabinowitz says all 11 elected detention in U.S. over danger in Mexico. It's no secret.

O'Scannlain asks why it'd be more dangerous in Mexico than in Honduras. (completely irrelevant question, legally). And totally tone-deaf on the motivations of asylum-seekers.

10news.com/news/local-new…

Judy's trying to help the panel read the plain language of the statute:
If *an immigration officer determines* [THEN] [(b)(1) applies]

What the government's saying is no matter what the officer determines, government gets to decide if a person's in b1 or b2.

One higher-level takeaway is that this statute is complex and the judges and policymakers seeking to understand and implement it have to read it really closely to get it right. How does non-lawyer from Santa Monica running government immigration policy understand it & explain it?

ACLU now centering the statutory reading on the consequences that flow from it, and whether Congress would have intended those consequences.

Judge Watford notes the government's Remain in Mexico policy is wisely crafted to exclude people who are in expedited removal proceedings because it'd clearly violate the statute. Judge Watford essentially says the meaning of 235(b)(2)(B)(ii) determines the fate of Remain in MX.

Rabinowitz notes the absurdity of applying the full evidentiary burdens in IJ removal proceedings to asylum-seekers in expedited Remain in Mexico interviews: "They've taken the highest standard and mixed it with no procedures and said that it's going to comply with nonrefoulement

Government rebuttal: INA 235b2A is the sole authority to put people in full removal proceedings, and because that authority exists, government has the ability to return people to Mexico.

Judge Fletcher sets for govt argument:
(b)(1) describes a certain category of people
(b)(2) describes a bunch of people, and everyone in (b)(1).
Asks, if (b)(1) and (b)(2) are in separate, non-overlapping categories, doesn't govt argument fall apart?
DHS: it's our choice.

In Judge Fletcher's analysis, the statute creates dogs and cats. Which reminds me, Tijuana is teeming with the most gorgeous animals, and for many people doing hard work there, dogs and cats are salvation.

Government argument: These are all the same things and we get to decide who's a cat and who's a dog.

So that's it. In sum, the government's position is that Remain in Mexico is legal because they say it is, and if they said something different from what they're saying, it wouldn't be legal.
If you're wondering about real-world impacts of this deadly policy on vulnerable people..

...follow @L_Toczylowski @ImmDef @ESMcIntyre @jeanguerre @BobMooreNews @humanrights1st @KennjiKizuka and others in their TLs for reports from the hearings. Bottom line: It's chaos. People haven't been let back in. Gov't loses files and cases get bumped. People disappear.

3 Final thoughts:
Consider the mendacity that created today's controversy. For reasons of statutory construction so complicated that not even judges can fully and correctly explain them, the U.S. regime elected to subject a category of people fleeing persecution to more risk.

It's not like someone looked at 235b and thought, "You know, we've been doing this wrong the whole time, and Congress really wanted us to do it this other way." No. Someone asked, "How do we stop them from coming and asserting their right to seek asylum?" Lawyers found a solution

Which is why, to quote Charles Hamilton Houston, "A lawyer's either a social engineer or [they're] a parasite on society."
For law students out there thinking about your career path, consider whether your prestigious govt boss or the judge you clerk for will make you a parasite./

Here’s a good example:

https://twitter.com/bobmoorenews/status/1121399243061768194?s=21