Thread by @ReichlinMelnick

The DOJ filed its response last night, making 6 arguments, if you count "are you kidding me" as a distinct argument.

- MOU is unenforceable
- No waiver of sovereign immunity
- Discretionary decisions are nonreviewable
- No standing
- No irreparable harm courtlistener.com/recap/gov.usco…

https://twitter.com/ReichlinMelnick/status/1353501485779267584

Thanks to @DLind for flagging that DOJ just responded to Texas's submission of a Tucker Carlson piece claiming ICE had been ordered to release everyone.

They point out that a small set of releases occurred because of a lawsuit unrelated to the moratorium.
courtlistener.com/recap/gov.usco…

And we're off, hearing is beginning now in a very crowded Zoom where I see a lot of Immigration Twitter has tuned in.

Appearing today are:

- Will Thompson for Texas AG's office (argued on Friday)
- Daniel Hu, DOJ Civil Chief
- Adam Kirschner from local DOJ (argued on Friday).

Judge Tipton begins by saying it's a limited hearing and recapping what happened on Friday.

He says the subject of today's hearing is Texas's "advisory" of a Tucker Carlson piece over the weekend claiming ICE is releasing everyone (it isn't).

Here it is:
courtlistener.com/recap/gov.usco…

Texas AG up now claiming that they filed the Advisory because of their argument that the moratorium would lead to additional releases (which they claim will irreparably harm Texas) and is now citing an email that was leaked to Tucker Carlson for him to spread last weekend.

Tipton asks Texas if they have any evidence of releases other than the Tucker Carlson piece.

Thompson says basically they don't, other than what the US filed this morning.

Kirschner for DOJ responds that the releases were unrelated to the moratorium, as stated in the response.

Kirschner then pivots to the new arguments raised in the DOJ's brief, pointing out that this exact situation shows how unenforceable Texas's contract is. If Texas got what it wanted, DHS couldn't use its authority ANY time, even in individual cases, without Texas's sayso first.

DOJ: "That means that the DHS has signed over its rights to many state and local jurisdictions, pursuant to Texas's theories. For a variety of reasons, this memorandum of understanding is completely unenforceable, and this advisory provides that point."

Tipton turns to asking DOJ whether people in detention will be released pursuant to the deportation moratorium. "As I understand the representation from the United States...ICE has released a group of noncitizens with removal orders who didn't meet exceptions to 100 day pause."

Tipton now asking DOJ about the specifics of the ICE moratorium and what the first exception for "national security" means.

Kirschner from DOJ struggling to respond (in part because I strongly suspect ICE hasn't actually parsed that out yet).

Kirschner makes clear that releases are not covered under the moratorium, and highlights strong statutory discretion to release individuals who are subject to removal orders under broad discretion.

Tipton pushes again, asking whether those with criminal records would be covered.

Tipton further asking about releases of those with criminal records, asking whether the moratorium allows the release of people with criminal records described in the priorities.

Kirscher says "No more than what was allowed beforehand." Exactly! DHS always has this authority.

Tipton now asks about DOJ's response, that the weekend releases occurred as part of Fraihat. He asks whether ICE released any other people on final orders.

Kirschner says yes, that's his understanding: only individuals covered by Texas's advisory are the Fraihat class members.

Tipton now asks for exactly how many ICE released over the weekend. He calls this "all pieces of information" that is "not designed to tip one way or another" on the TRO.

This is ridiculous. The very idea that he's going to micromanage local ICE release decisions nationwide!

Kirschner now suggests that ICE has been deliberately not releasing anyone under the moratorium over the weekend until the judge rules.

Tipton wants to know if the Tucker Carlson leaked email exists as well, and asks DOJ to get a copy of it.

Tipton now asks about 1231(a)(2), which includes a reference to mandatory detention for certain individuals, and says: "Again, I'm just now becoming an expert on immigration law. What is a criminal alien?"

Kirschner points out there's a cross-referenced definition.

Tipton says he is now asking DOJ to "preserve all evidence," including emails, on the releases of ANYONE with a final order of removal after Friday.

"I just want to find out what communications your client had internally about releasing individuals."

"I'd like to know the number of people who are subject to orders of removal that are not in custody and, as contrasted with those that are in custody. Informationally, it would help inform, if, it's just a handful of people contrasted with the vast majority of people in custody."

Judge Tipton says it matters to him how many people are present with final orders of removal out of detention and inside detention, and "what happens next" after someone is released from detention.

Very clear Tipton is trying to get an information dump on how ICE works.

Tipton should read our fact sheet on seeking release from immigration detention!

Seriously. I mean it. He clearly doesn't have even the basic background of the system. He needs a short explainer and he'll get a lot of it here. americanimmigrationcouncil.org/research/relea…

Tipton now asking for a TON of data on the percent of people who are released on final orders who are ultimately removed, who remain in the United States, who fail to appear for a check-in, things like that.

He is demanding a TON of data from the government.

Kirschner says: "previous experience with DHS in tracking down statistics, some statistics are now as easy to come by as it [seems] from the outside."

This is completely true. A lot of what Tipton asked for may be hard for DHS to produce, and could take days.

Tipton asks Kirschner to figure out a "reasonable response time" for things that is helpful in the determination.

Notably, he hasn't asked Texas for literally anything other than what's in their declarations, including the questions going to their consideration.

Tipton says most of these would be "more for the preliminary injunction."

Kirschner asks for whether the statistics are for the TRO, and Tipton says "not particularly."

Kirschner and Judge Tipton agree that the statistics are unnecessary until the preliminary injunction briefing.

Tipton asks Texas & DHS if they're going to engage in expedited discovery. He notes now that Texas's prior affidavits were "recycled" and asks timing for new ones.

Kirschner says he "thinks it would be outrageous" to have discovery, let alone "expedited discovery."

"If you look at our opposition, there's no jurisdiction here, from our perspective and from Supreme Court precedent."

Kirschner for DOJ: "The idea to go straight into discovery when there isn't jurisdiction just completely reverses the order of things, and so what we think should be done, they should be able to make their case on the preliminary injunction motion."

Turning back to Texas, Thompson for Texas AG says that the DOJ's argument is irrelevant—"Regardless of why DHS is releasing individual aliens ... their memorandum leads to an increase in releases."

Tipton points out that the releases would have occurred otherwise under Fraihait.

Tipton seems skeptical about Texas's response, pointing out that the other people would have been released under the injunction anyway. He thinks it's two different things from a release pursuant to a court order and a release under the moratorium.

Kirschner from DOJ agrees.

And with that, the hearing wraps up. Judge Tipton says he will be "working diligently" on the motion for a Temporary Restraining Order and thanks the parties for their diligence and the emergency schedule.