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The oral argument before the 9 Circuit in Ramos v. Nielsen -- the TPS injunction case -- is something else. You know things are not right when Judge Nelson prefaces a Q with "the district court made so many errors ..."
In Ramos the district court in SF issued a preliminary injunction blocking the Admin's termination of Temporary Protected Status (TPS) for El Salvador, Nicaragua, Haiti & Sudan. The injunction protects aprox 300,000 ppl some of whom have lived in the US for over 20 years.
In Ramos ACLU obtained an order for extensive discovery (which is unusual in APA cases) based on Overton Park exception to AP review which requires “a strong showing of bad faith or improper behavior” underlying the agency decision permitting extra Adim Record stuff to come in
But it sounds like the district court did not make an actual Overton Park finding but just heard arguments on the issue and allowed discovery, which may end up being the linchpin of the case ... and with really bad consequences.
The 9th Circuit Panel (J Christen, Callahan, & R Nelson) were bothered by what had happened below & the hardship a TPS termination would cause to so many ppl but at least two of the judges were very skeptical of justiciability based on the broad zipper clause in 1252, meaning
... do courts even have jurisdiction to inquire into TPS termination decisions. If they end up finding lack of jurisdiction, then the entire APA claim gets wiped out. The Govt was pushing a claim that bc the equal protection claim is tied to APA, the APA standard applies and ...
... that as result 1252 bars court's ability to review constitutional claims. Judge Christen was very skeptical about it & judge Nelson appeared to try to reach the same result by pointing to SCOTUS recent pronouncements that const claim in immigration context a "pretty specious"
My gut feeling is that we may get a 2-1 decision lifting injunction which may not have direct devastating results as the Govt had agreed that no TPS termination would take effect until 120 days after the issuance of the mandate (meaning full resolution including SOCTUS review)
But based on questioning we may end up w decision that could severely curtail the way the merits will proceed, especially if some of the extra Admin record is thrown out & if some of the language how the secretary 'were doing their job right' get part of the law of the case.
The case also may end up being re-assigned to a different district judge!!! I know that for those not dealing with immigration cases that seems pretty absurd, but Judge Nelson actually asked this exact Q of Govt almost blaming them for not having asked for such a transfer.
He made the comment about whether allowing the same district judge to decide the case on the merits could serve justice. This is pretty incredible ... and I have only seen it with Circuit courts ordering transfer where immigration judges went out of the way in ignorance or bias.
