Thread by @ProfMJCleveland

The entire case is not available but I'm listening in to hearing. 1/

https://twitter.com/ProfMJCleveland/status/1941199803423260960

2/ DOJ: Is not waiving defense to location, should be in Maryland if it is HABEAS. And says it is jurisdictionally barred.
Judge: If had to be brought in habeas because of relief sought, to extent habeas is not jurisdiction, but venue, you waived it.
DOJ: This is a new case so couldn't have waived.

3/ Judge: Same relief sought here.
DOJ: We did not assert a defense in Maryland that could only be brought in habeas. And this is a new claim.
Judge: You say not material whether under APA, non-statutory, habeas.
DOJ: Can't justify filing in D.C. and claim splitting. Reading: Upon arrival the individuals will be granted an immigration status consistent with South Sudan allows them to remain for period determined in South Sudan. Nothing to say detained, we didn't asked for it, and no reason to believe.

4/ DOJ: JGG is different as they challenging Alien Enemies Act and implication of claim is could not be detained at all. Here they aren't arguing they can't be detained. 1215(g): It is a jurisdictional bar. They are wrong that it is only if "discretion."
Judge: Don't know what to make of Supreme Court's stay, that's a problem with emergency docket.
DOJ: Harms to foreign policy is substantial. The yes we are, no we aren't, yes were are. Will make it even worse, where Supreme Court has twice allowed these particular individuals to be received.

5/ "to be removed."
Plaintiffs: South Sudan is one of most dangerous countries.
Me: SCOTUS already allowed their removal.

Plaintiff: Idea that they could be taken to country where they could be tortured can't be reconciled with our constitution. And we can do claim splitting, i.e. between earlier case and habeas...that can't possibly be the law.
Me: That's not a legal argument.

6/ Plaintiff: Habeas corpus is only way to challenge, and D.C. is only place jurisdiction is appropriate so no "claim splitting" (meaning that they didn't argue these points in earlier Maryland case).
It is completely beyond conscience to send someone where they may be tortured and that's why we are bringing these claims now.
Plaintiff Counsel: We are seeing acts by government not since Chinese exclusion act, because deport is punishment with death or torture. When brought the case wasn't about removal to harm with death/torture but merely 3d party removal. These are practices that weren't anticipated when case was brought and now they are facing this...yesterday this now became "ripe."
Me: Bullshit. They argued risk of death & torture of South Sudan.
Plaintiff: Asking court to consider constitutional of sending to South Sudan.
Court: Is putting everyone on mute and coming back to let everyone know.

7/ Judge: I appreciate everyone responding with such extraordinary speed on a holiday, I will say that I do have grave concerns with some of the issues the Plaintiff raise and I haven't been able to dig into the issues. Placing people in South Sudan could put people in danger. I very much appreciate those concerns like all of us I would not want to see anything to these plaintiffs or anybody. And it goes without saying that even when someone is committed of committing a horrible crime our government nor anyone else should inflict harm on others just for doing so. I'm not saying I've reached a conclusion that is what the motive is and DOJ has represented that is not the motive. That all goes to the merits. I am not inclined to reach the merits in the case in front of me. Obviously a challenge when so much resolved on expedited and emergency and without lots not addressed. We just don't know which argues SCOTUS found convincing. I am concerned about claim splitting in this case and fairness and judicial efficiency where we have so much litigation and multiple cases with same parties and same relief sought raises concerns. While I understand plaintiffs point that this is not a class member but they are ones in order that SCOTUS addressed. SCOTUS recently addressed similar claim if not identical relief with these particular individuals. I understand a different claim, but similar and what the SCOTUS just addressed and very similar relief, I believe case should be handled in a single case and not multiple case. I have some pause if they had no choice between bringing due process claim here, and there are 2 due process claims, claim here is a substantive due process under 8th amendment and that's different than need to have chance to have hearing before being removed to 3d party. I think if on merits I found that was what government did, i.e., that they were removed for punishment, that would be a constitutional violation. BUT the arguments here keep circling back. I believe transfer is appropriate.
ME: I bet Judge is going to punt and keep stay while it is transferred back to Massachusetts (sorry NOT Maryland). Totally wrong.

8/ Judge: I'm going to transfer case to district court in Massachusetts presumably to same judge. I believe administrative stays of 2 weeks is problematic, and that calling them that as opposed to a TRO, but I am convinced by reasoning of Justice Barrett under All Writs Act to grant very brief stays for administrative purposes to allow a case to be before a court and must be extremely brief. Plan was for flights to leave at 7 p.m. tonight. Keeping for 1 hour from when we end this, merely to allow transfer. Plaintiffs should immediately contact Massachusetts as I'm only allowing to get it to them.
OMGosh: Called it!

9/ Judge: I don't think Plaintiffs are just litigating to delay.
Plaintiff: Thank you. Because it is a holiday we are concerned to get procedure in place, we would ask to give more time, in light of holiday, and plans to remove.
DOJ: You don't have authority to do it, if they have problems getting it done that's because they wasted time filing in wrong court, and any further delay will prevent us to get review quickly.
Judge: It is 3:06, I will grant administrative stay until 4:15. If you aren't in front of a judge by 4:15 I don't see how you get relief before planes take off at 7. You should be able to get in touch with Massachusetts. If a problem with transfer, I may need to extend it then.
Plaintiff: Are you sending to Judge Murphy or to clerk?
Judge: Asked clerk. Not sure. Will check with clerk and let you know.
Plaintiff: Can you give us at least two hours gap between your order and when another court rules.
DOJ: Any prudent lawyer would have tried to get ball rolling knowing we said wrong court.
Plaintiffs: We did not because our position is habeas.
Judge: I hope someone is calling. I extend it to 4:30.