Twitter is making me start a new threat. #noban 49
Judge - Before 6/22, when consular officer was reviewing an H-1B, did the officer have to review critical infrastructure requirement? Isn’t that a new requirement? Judge - Where do I look for criteria consular officer is supposed to use. Wen - It’s in the INA. #noban 49.1
Wen addressing Panda arguments. Judge - Anything in administrative record to support finding that Pres was consulting with DOL and DHS secretaries re impact on economy? Wen - I think so. Don’t have cite handy. #noban 50
Wen - This finding isn’t necessary for Trump’s authority to issue proclamation. Judge - Can Trump make finding that’s counterfactual? Can judge do anything about this? Gives hypo - Crime is up in the US and immigrants commit crimes at higher rates. Is that enough? #noban 51
Judge notes that the crime data shows otherwise. Wen - Doesn’t have to get into that. Judge - Where is the line? Any limit? Wen - Proclamation is directly related to COVID emergency. It articulates its rationale. #noban 52
Judge citing amicus. Never been a 212(f) proclamation that is as much about domestic affairs as this. Wen - COVID is unprecedented. #noban 53
Judge - Asking about argument that the proclamation overrides portions of the INA. Wen - That’s not occurring here. Sup Ct in Hawaii case says it must expressly override portions of the INA. Nothing in Proclamation expressly overriding anything in INA. #noban 54
Wen - If there is a final agency action, doctrine of consular non-reviewability applies. Judge - Doesn’t it apply to the refusal to adjudicate a visa? Wen cites a case. Judge is familiar with the case and says it is about waivers. #noban 55
Judge - Are you saying no reviewability from the point of applying to the point of decision? Wen - There’s no final agency action anywhere in that process and no court reviewability. Judge - Doesn’t the statute say the consular officer MUST review all applications? #no ban 56
Judge - This only means the duty only applies when a person actually gets an interview. Wen - Yes. By the way, I thought this was Wen the whole time. Apparently not. I’m only getting audio at this point. #noban 57
Now Wen is back talking about separation of powers. This is just the Hawaii case again. Pres gets deference. Judge - What would rise to the level of an express override? #noban 58
Wen - The proclamation must expressly contradict something in the statute. #noban 59
Judge - He’s reviewed Hawaii v Trump. Doesn’t extend as far as govt is arguing. Doesn’t speak to visa issuance. Judge - Govt hasn’t responded to Gomez argument that DVs should get emergency treatment?Govt says it didn’t have an opportunity to address. Judge-Tell me now. #noban 59
Judge - What’s the reason some people are getting expedited treatment & not others? Anything in the record explaining this? Parents & minors- why are they exempted? Why not DVs? Govt - Admin record indicates very narrow circumstances. A few dozen cases instead of 1000s. #noban 60
Judge giving 5 minutes and we’ll be back for quick rebuttals. #nonan 61
And we’re back. Judge asking govt - What’s mission critical versus a national interest exception? 62
Govt - Mission critical is a very narrow determination related to resources. Not all NIEs are mission critical Both can apply. #noban 63.
Rafael Urany is back. He has New Zealand DV applicant. And 5 clients in the US. Judge - why are they in the US? Urany - They had nonimmigrant visas. #noban 64
Urany - Speaking to extraordinary remedy. Citing Brown v Board of Education. There’s an inherent power in the court to do this sort of thing. Also, if we rely on govt def of mission critical, they’re just going to ignore the statute & do what Trump wants. #noban 65
Urany - No COVID-related reason they can’t be scheduling interviews. Govt’s argument is circular. Many people have been interviewed. They don’t need new slots for them. They can just stamp. They’re just going to put the cloak of 212(f) on and do Trump’s bidding. #noban 66
72 words of 212(f) don’t usurp 1000s of pages of INA. Otherwise it’s an unconstitutional delegation. Trump v. Hawaii - They were on 3rd proclamation. Worldwide agency review. There aren’t ANY findings and can’t be the basis to override whole INA. #noban 68
Jesse Bless for the plaintiffs up. INA 221(c) - visas can be issued and operational for a period up to 6 months. Congress spoke of entry being different for a reason. Congress says all immediate relatives without a wait time. Proclamation eliminates parents. #noban 70
Jesse noting H-2Bs require you to prove you aren’t displacing US workers. #noban 71
Cleland Welton is back for the plaintiffs - Policy of refusing to issue visas is separate from the proclamation. It’s final agency action because they are no longer being considered. #noban 71
Cleland bringing back finding argument and crime example. Mountains of evidence that immigrants don’t impact job market negatively. Hawaii was a national security case and doesn’t get same deference. #noban 72
Cleland - Non-delegation - There are limits. Look at context & purpose of statute. Statute doesn’t say a limit. But there must be. On COVID guidance, is there a rational record re mission critical. Nothing abt DV visas explaining why no priority. #noban 73
Geoffrey Forney for plaintiffs - Govt is arguing that new NIE cables don’t create new eligibility requirements. These new NIE requirements appear nowhere in the INA. Mentioning H-1B portability as an INA section directly overriden, thus contradicting govt. #noban 74
Cleland - Nothing in the admin record providing any factual findings re impact on US labor market. Many of the Panda plaintiffs have already gone through test of job market via PERM. #noban 75
So rebuttals are over. Judge sensitive to the time and will get a decision back quickly. #noban 76
So as I’ve said in the past, I believe the judge in this case is fair. You can tell from the hard questions asked to both sides. I also think it’s apparent that the plaintiffs just have better arguments. The DOJ lawyers are defending something that’s hard to defend. #noban 77
I’ll end this thread here. Not going to make predictions on timing or what the order will be. I promise I’ll update you all immediately when we have news. #noban 78
