Oral argument — Coalition for Humane Immigrant Rights v. DHS

625-5152 ADAPT. Coalition for Humane Immigrant Rights ADAPT Appellants v. United States Department of Homeland Security ADAPT. Ms. LaPointe for the Appellants, Mr. Van Goswami for the Appellees. Good morning everybody. Good morning, Your Honors. May it please the court, Michelle LaPointe for the Plaintiff's Appellants. I'd like to reserve three minutes for rebuttal, please. For the past 80 years, the government has decided not to require universal non-citizen registration. And the government has never implemented universal registration combined with the carrier papers requirement. But that all changed on April 11th of this year when defendants began implementing the interim final rule that plaintiffs challenged in this case. By defendants own admission, the IFR impacts at a people who for the first time are subject to registration and who face criminal prosecution if they fail to apply to register. Let me tamp down a little bit on that last comment about for the first time facing registration because we have the Alien Registration Act of 1940 requiring all aliens in country over 30 days to register and be fingerprinted. Then we moved to the INA in 1952 and then they added certain things like 14 years and older must apply and carry the papers if you're 18 and older. And then also the misdemeanor. Now mind you, even though it said all aliens, there were categories in which people filled out the form and not necessarily everybody had a form that applied to them. And now we're moving to an interim final rule where they would consider filling the gap. But you start with all were required to do so even though some didn't have the form. So mind you, you might not have a form to do it but it at least still said all are required to do it. So that I guess I get to what the intent was. Right. Your Honor, it is true that the 1940 statute established requirement to apply for registration for non-citizens. However, the defendants through the decades have narrowed that requirement by not having a form or a method available for a large swath of non-citizens to register. So they've made a policy decision to channel non-citizen registration into the immigration process. That means only if you were eligible for and applying for certain immigration relief or benefits did you have a method to register. Therefore there was no way for large numbers of individuals who are undocumented and had had had no interaction with the immigration system before and were not eligible for any immigration relief to register. So you would take the position that if there was not that form or category for them that even though it said all are required to register they would not have been in peril of the law. Right. Because there was no means for them to apply for registration. And so there would have been no way for them to be criminally liable for willful failure to register during those those years until April 11th of this year. And defendants acknowledge as much in the IFR and the district court recognized as as well that this was a big switch in policy. A big switcheroo is what the district court described it as. And that's because as I said for these it was only through registration through immigration processes that there was an available method of registration. Something is changing no question about it but you your opening described what's going on as the creation of a new rule or duty. I read the statute the way Judge Childs does and if that's true then it seems like a more fair account of what's happening is the change is that the government is ending a long policy of unlawfully not enforcing a legal duty that on its face covers all pay lands. Judge Tatsis even if that were the case accepting that premise the government still needed to go through notice and comment rulemaking in order to implement this IFR and it did not do so in this case and that alone dooms the rule. This IFR imposes new substantive burdens that did not exist for the 2.2 to 3.2 million people who previously had no method to apply for registration. It encodes a substantive value judgment about what the government what DHS in this case thought was important in terms of how to register people who should be required to register what type of information should be required of them through the registration process and it trenches on substantial rights and interests of the individuals who are newly required to register because they previously had no method to do so. So under this court's precedence that was certainly enough to require notice and comment and to allow the public to weigh in on these important changes before the rule took effect and that's setting aside the arbitrary and capricious nature of the rule itself but we think that at a minimum they had to allow the public to weigh in on these substantial changes. One point you have which is a good one is that the rule does expand the category of information that has to be provided and that's new but the all of these requirements the ones in the original statute and the expanded ones in the rule are in the nature of the government is requiring a private party to give the government information in order to facilitate enforcement of other legal obligations right you can only stay in the country for X number of days you have to comply with your visa whatever it is the information the registration helps enforce that. Why isn't all of that the new stuff and the old stuff procedural? Well you know you have to fill out a form I assume for oral argument and you have to give us a bunch of personal information to facilitate you know we can track you if something happens in the morning we can call you whatever it is it's something of that nature. Right so I think it's important to zoom out a little bit and understand that the again the scope of individuals who are now required to register who previously didn't have a method to do so is so large that that it's sort of in itself is enough to have required the public to comment but I think that it's important to know that the government here's defendants have said that this is a tool of immigration enforcement so unlike the folks who previously had a method to register because they came through the visa process and the government ostensibly could have been tracking their compliance with exit requirements under those visas now we're talking about an entirely new swath of individuals who entered without inspection that's that's pretty explicit. In order to facilitate enforcement but to me that tends to cut for procedural I mean if you're say you're on the front end applying for a government says here's all the information you have to give us when we consider your visa that sounds procedural to me. I think the distinction is that these individuals who are newly impacted by the rule do not have any eligibility have not applied for any immigration benefits and so it is solely for the process of facilitating deportation or as the defendants might say self deportation which I think takes it outside the category of procedural it is impacting fundamental rights including members of Plaintiffs Association's First Amendment rights their Fifth Amendment rights against self-incrimination because they're required to report on any criminal activity including uncharged criminal activity without a method to assert their Fifth Amendment rights and they're experiencing a chilling of speech because of those requirements to report on their activities in the context of what's going on currently with the targeting of individuals including non-citizens for First Amendment protected activities. I'm a little confused what speech is chilled? So a number of the plaintiffs members have stated that they are engaged in political organizing activities on behalf of immigrants rights causes and they stated in their declarations that by having to disclose this through the new registration process they will be chilled and continuing to assert those First Amendment rights particularly in the context of everything that has been happening in the targeting of non-citizens for their expressive activities so it's kind of core. Is that a consequence let's divide the form into two things most of the information on there is already required by statute including the list of activities and then there's a couple things including confess any crime you've ever committed that's been added. Put aside the addition the requirement to disclose activities already exists in the statute you do not challenge the constitutionality of the statute. Correct. So then how if it's constitutional for the statute to require it and the form just says you know the form said give us all the information the statute requires here's the statute would you have the same challenge? So that's correct that we are not challenging the constitutionality of the statute through this lawsuit but by requiring by using this method of registration the government made a policy choice to include all of these categories of inquiry. Wait a second again I want to focus only on things that the statute already requires now imagine this form said please give us all the information required by the statute cites the statute and then lists the excerpts from the statute all the things that requires you would have the exact same obligation to challenge or to list your activities. Right. Would that be would you have the same injury would you be asserting the same injury that the form said just give us what the statute requires? I think that it is the combination of what the regulation is. The answer to my question is no it's that they require they ask you for what the statute requires and something else. Right so it is by requiring people to report on those activities that the statute does list out that as your honor says include all the activities that you've been involved with within the context of what is going on currently with the targeting of non-citizens for their political speech and their First Amendment protected activity. Okay so if the problem isn't really the content of the form put aside the addition we're putting those on hold for now so if it's if we're just focused on what the statute requires and this will say the form to the extent it just duplicates what the requires you're saying what makes the rule unlawful is separate enforcement activities that the government is taking? I think that's part of it because we're not. What else is it? I keep trying to understand your argument about your combination argument here. Right. What else is it? I mean I'm not quite sure how we can look at enforcement activities as a means of challenging a rule to the extent it duplicates statutory requirements that's where I'm having trouble. What it speaks to is the cognizability of a First Amendment harm so it is requiring them to report on it. The statute okay so okay so your point if I understand your point right and tell me if I don't it's that not challenging the statute which says list a lot of things including all your activities not challenging that to the extent the form says it's the same things as a statute we're not challenging that. You haven't brought a lawsuit against enforcement activities it's violated the First Amendment or anything so you're not challenging those and the rule doesn't say anything about those enforcement activities out there. So what is your challenge what is the rule doing to harm say these speech activities what is the rule doing? Statute's not doing it and you're not challenging the statute is doing it you're not challenging the enforcement activities but the rules not adding anything at that point. The other thing that it is doing is it is explicitly a form or process that will be used for immigration enforcement as defendants have stated in the in the rule itself and in comments about the purpose of the rule so unlike I mean so explain to me the legal grounds on which we could say it's unlawful for the government to use the information that's lawful for it to collect in an immigration context it's unlawful than to use it in the immigration context. So it's unlawful. I mean this is this is the statute is sort of part of the network of laws that we have regulating the conduct of people who are in the United States who are who are not U.S. citizens or lawful residents right so people who are here whether it's diplomats or people here on visas or everything ranging from the tourist visa to people who've entered without documentation and have remained in the United States without lawful authority all right so and your your concern is how they're using the information that's that's what you're saying. We are not challenging how they use it as your honor points out however in defining the cognizable harm of having to report on it it is important to look at the context of what's going on and how they've been using this information but I think I can have a legal harm it has to be a legally cognizable harm if you don't challenge any of the things any of the actions that you say cause that harm if you have an example where someone claimed an injury but everything that caused the injury they agreed was perfectly lawful so I challenge for these I'm going to point not challenges as lawful for these purposes so I'd have to think a little bit more about your second the second part of your honors question but I think if we look at DC Circuit precedent on what constitutes chilling a cognizable chilling effect on First Amendment rights you know the standards set out by the chaplaincy of full gospel churches case plaintiffs have to establish that they are or will be engaging in constitutionally protected behavior to demonstrate that the government activity would chill this conduct and multiple plaintiffs in that in this case have done so Louisa from Sherla goo belly of them from make the road and a lot of other plaintiff members have talked about they've stated specifically that they are engaging in protected activity core First Amendment political activity and speech activity and that they are currently experiencing chilling based on the requirement to expose that conduct through this form which is only for the purpose of immigration question that's chilling them it's not the question or the obligation to answer the question that's chilling them it's not the obligation to answer this question on a form that's chilling them because you said just the form doing what the statute requires is not the source and chill it sounds like it's the enforcement activities that are chilling them their position is that it is the requirement the obligation to disclose it through this form that again has no sort of ameliorative effects is not simply a registry an inventory like the statute was first conceived of of non-citizens in the statute I get that people talk about it that way I'll know sort of questionable that's really what it was doing was collecting assets information about assets moving the statute that restricts the use is it sir that restricts I'm sorry restricts the use of the information that's correct is there another statute that restricts the use of information the information that would be received through the process not that I'm aware of we do talk about another other statutes in the immigration benefits context that have more restrictions on information that protects the confidentiality of information submitted and that's in for example VAWA or the U visa context but through the registration statute not that I know of why are we talking about chilling at all in a case where you haven't raised a First Amendment claim chill is a theory of a First Amendment harm here your primary contention is an APA question about whether this change is substantive or procedural and what why is chilling relevant to that your honor it's correct that we have not brought a freestanding First Amendment claim in this case we do talk about in our complaint the failure to consider First Amendment and Fifth Amendment issues as part of the arbitrary capricious challenge in the APA and there are other cases outside of the circuit that have considered in the irreparable harm context constitutional injuries for example the mock v Garland case from the northern district of Texas the Alabama versus US Secretary of Education case from the 11th circuit these are cases where constitutional harms were considered as part of the APA analysis and we think that it is appropriate to do so here there's no certainly no prohibition on doing so defendants have not cited any cases where this is not permitted and again we just think in addition to the notice and issue it goes to the arbitrary and capricious nature again you have plausible theories for folding it into arbitrary and capricious and maybe irreparable harm just on the notice and comment are you contending that the separate enforcement activity could make what would otherwise be a procedural requirement into a substantive one or you're just talking about chill for those other issues I think it goes to the notice and comment claim as well in the sense of making a substantive value judgment about the purpose of the registration system and the criteria for setting it up and the fact that it trenches on individuals first and Fifth Amendment rights and interests which is of the test in this circuit about whether it's procedural or legislative rule not just right but also interest so it goes to both the notice and comment claim and arbitrary and capricious claim I think we can understand what's the extent of the post promulgation comments that are being offered here do you not feel like that's effective because we are in an interim rule as opposed to a the government didn't give people the the public the ability to comment of course before the rule went into effect and so to the extent that comments were submitted which are not part of the record here because it was a pre-enforcement challenge none of those comments would have been considered as part of the agency's rulemaking and they have not subsequently modified the interim rule in any way so it is as promulgated in the Federal Register is the language that ended up being the rule here you've also asserted that the IFR I'm not the IMA actually exposes the non-citizens to the criminal liability but the criminal liability was in the IMA that's correct but it goes back to the lack of a means to it and the statute says apply for registration which I think is important here and be finger be fingerprinted correct that is correct your honor but one cannot apply for registration if the government does not provide a means for doing so and the CFR 8 CFR 264.1 talks about prescribed forms that count as registration documents or evidence of registration so without a prescribed form to do so these millions of people previously did not have a method to register it wouldn't have been exposed sense of what the commentary for notice and comment will be in other words as I started out in this hearing about that you had the registration requirements way back from the first act and then superseded by the INA and then we got executive order and then we now have this interim rule so the opportunity or the principle to register has always been out there so if you go to notice and comment I don't see the policy of wanting that requirement to change but what would your commentary be about it because it sounds to me like you're more focusing on I'm worried about these 2.2 or 2.3 million somehow getting caught up into all of this and potentially there being enforcement against them and that sounds like an educational campaign you know from one standpoint of yes the rule goes into effect but we don't implement it or it goes we don't implement it or make it be really effective for four months or so so that there can be the widespread campaign by groups such as yours and others and so what would notice and comment for you achieve your honor it would achieve the purpose of notice and comment will make under the APA which is to allow the public to have offered their input on this policy choice here I think this goes more to the arbitrary and capricious argument but it's clear under this circuit precedent that a change in policy as fundamental as the one at issue here requires the agency to acknowledge that the previous policy existed and they made a choice to change it and then of course to engage in recent decision making to underlie the new rule we look at we can look at the American wild horse preservation campaign case positions for social responsibility make clear that whether it's a formal policy or an informal policy at a minimum the agency had to acknowledge the immense change that it was undertaking here and provide a reasoned explanation for doing so and here the agency just completely glosses over that requirement and again just sort of goes back to the existence of the statute to justify this this change but that does not pass muster under this courts arbitrary and capricious precedence on the question on the line between substance and procedure not the clearest line ever but we have some cases suggesting that one consideration at least in close cases the question might turn on the extent of the burden government sites this JEM broadcasting case it's an issue of degree or are the burden so grave as to warrant notice and comment rule making do you agree with that formulation I agree that that that is is part of the test certainly but if you look at the cases where this court found that a rule was procedural you'll find that it really they cue a lot closer to this idea of it only regulates the manner in which an individual presents himself to the agency certain things like deadlines to file I'm going to ask you to assume two things that you disagree with but I suppose I think that the kind of duty here providing information to the government that helps the government enforce is in the gray areas maybe substantive maybe procedural it's an edge case and put aside the question of harms from enforcement so I'm thinking about is is this a substantial serious heavy burden or is this kind of a record-keeping thing and just looking at the form and how long do you think it would take for an average alien to fill out this form name address the hardest part of this would seem to be police and criminal record and that's directly out of the statute and the rest of it seems pretty performa so a few things to consider there first as plaintiffs have pointed out this is an online only form available only in English and that in itself makes it inaccessible to a large number of people who can't access the Internet or speak English in addition though looking at the burden on individuals to actually fill it out there is and I don't have it at my fingertips but I believe it's about an hour that the government estimates in the IFR that it would take them in addition to the time to go provide biometrics and the lost wages of course that would be entailed with going through this process so that is certainly part of it but I think if we're looking at the other cases where this this work found that a rule was procedural they just are very far from this IFR in the sense that they actually talk to issues of agency efficiency I don't hear the government saying here that yes they talk about law enforcement objectives and improving law enforcement outcomes but it's unclear to me how the requirement of submission of a new form an entirely new process for US citizenship and immigration services to undergo and to process is somehow increasing agency efficiency that's actually a new burden for the government in addition to the non-citizen and that that part is a bit unclear to me as well and so it's just really I understand the procedural legislative line is sometimes a bit there are close calls this is a bit blurry but in this case I think it is so far from the procedural side of the line that the agency absolutely had to allow the public to comment thank you nice good question about irreparable harm are you aware of any case where we have issued or we have stayed before us well the district court they should have stayed they aired not staying or enjoining based just on a notice and comment violation I'm sorry was your honors question whether a district court has whether this court has is there any precedent from this court or another fields court addressing whether a notice and comment violation put aside your arbitrariness challenge I don't forget that you have that I think at that but for your notice in common argument is that alone inflicts irreparable harm that would support a preliminary injunction for stay turn I'm looking back at the notes I don't think we had an example in the preliminary injunction or 705 day context although I have to confirm that of course I'm looking I'm thinking about Mendoza versus Paris but that was not preliminary posture sure sure I mean final release could happen there I'm just talking about where you really have to have the irreparable irreparable harm and I'm just wondering how notice and comment violations inflict here's the harm I believe that we did not cite a case precisely in that in that posture but I'm going to confirm that only for arbitrary and capricious it happens yes right okay um and then I get as as the district court judge said here and cats noted that you know this is a big change because we just hadn't been a registration opportunity until this form or for the most part hadn't been unless you were going through the immigration process if when the statute was first enacted this rule had been adopted so you don't have that time gap you don't have that last enforcement and then now new enforcement well would you have been able to challenge it then and put aside again the provisions that go beyond what the statute requires I think it would have been a much closer call I think it would have been the challenge it would have dependent on dependent on what the agency decided to put in the registration form and requirements assume again for purposes of my question that it's only things that are listed in the statute it's this form but only things listed in the statute in that case it may not have been we may not have been able to challenge the initial rule in your honors formulation that emerged from the statute if it was precisely on all fours with what is in the statute I think we'd still want to look at you know this the test for procedural versus legislative rule and in that case I think there's a possibility that we would have still been able to challenge the rule as requiring notice and comment rule making and of course there may have been other arbitrary and capricious etc but it would have been a lot closer call would you've had irreparable injuries well assuming you were bringing noticing comment and arbitrary and capricious question what it would be but again I guess here there are things that go beyond the statute and that's an important part of your arguments but if we don't ask to the things that are covered by the statute I think that also would have been a lot more difficult I given the passage of time and the decision of the agency in this case to abandon a prior policy that is part of the reason we're arguing okay I get that that can be grounds for APA challenge so what I'm struggling with is how again putting aside the questions that go beyond the statute just the all crimes thing it's big we take that off the table I'm struggling to see what the irreparable harm would have been white white changes based just on this time lapse do you have a reasonable reliance interests and a standing statutory obligation not being enforced or implemented that's just the difficulty of this case yeah it's actually been there a long time as a child's went out right I think that's why we have to go back to the context of the way that the obligation has evolved over the years and that ends up feeding into the notice and comment claim in addition to the arbitrary and capricious claim and it speaks to irreparable injury because for the first time and suddenly a new obligation is being imposed on these millions of individuals and I think that is an important aspect that would not necessarily have arisen had they implemented a rule right after the passage of the statute itself just on the notice and comment portion how do you feel that this does not fit the procedural exception to notice and comment when it's like the agency organization procedural practice in that I think your honor it's because of the the things we've been discussing that this is imposing substantive burdens that did not prior prior to the IFR exist in again encode substantive values in terms of what the agency is seeking and why they decided to implement it at this point and so suddenly and the substantial private rights or interest I also wanted to point out that that the large swath of individuals that are impacted here plays into the determination of it being a legislative and not a procedural rule as well I think under this court's precedents when we're talking about the impact on for example thousands of employers that this court talked about in Chamber of Commerce versus US Department of Labor 174 F 3rd 206 we're talking about the such a substantial public impact that notice that it takes it over the line from procedural to legislation that they should mention why they entered this rule and the impact and why now why is all that important the again with the overarching that this is not a new law so to speak in terms of just non-citizens registering your honor that speaks to the arbitrary and capricious analysis and the requirement therein that the agency has to acknowledge the change and not sort of gloss over it the way they've done with this IFR and to offer a reason explanation for it just sort of fundamental and you can see that as gap filling meaning that these people now have a form that didn't otherwise fit into these other categories right we think it absolutely required them to go through the analysis under state farm to consider the alternative to take into consideration the cost and the benefits under Michigan versus EPA and their failure to do so here rendered it arbitrary and capricious and are you aware of any of your clients actually haven't filled out the form and experienced any repercussions we do not have any information about that currently it's not in the record this of course was a pre-enforcement challenge so the obligation to fill out the form had not arisen by the time the plaintiffs requested preliminary relief in this case thank you very much that's all your time on rebuttal thank you you morning arms if there's the court our picnic is falling on behalf of the United States your honors I would like to just stress that as we pointed out in our brief the most important thing here is standard of review and as under this court president the issue is it's an abusive discretion of you over the district courts decision ultimately define no irreparable harm and as we have argued in our brief and as I'll continue are you here the district was correct in finding that there is no irreparable harm in fact as your honors have discussed previously with my colleague just now it seems that they have essentially conceded that any true harms in this case arise out of the enforcement or the extraneous factors the statute the enforcement all of those things are the harms from which they're actually complaining and the harms of they're actually saying are irreparable as you asked there is no harm arising from the rule itself and they're they have not been able to point to any harm they answer that and response to my questions that assume the form only duplicates the questions of the statute but this form goes beyond the questions in the statute your honor well particular requiring people to report any crime ever committed anywhere in the world whether they were even if they weren't arrested or prosecuted or convicted nothing in the statute requires that much doesn't your respectfully under a USC section 1304 little five the statute specifically both authorizes and directs secretary to ask four broad questions and such additional matters as may be prescribed the statute sure but the statute itself didn't make the judgment I mean those additional matters have to be within reasonable bounds under the APA and constitutional balance and so requiring everybody on pain and prosecution deportations to confess to the government every crime they've ever committed your honor is correct that the specific requirement that they confess to other crimes outside of this jurisdiction of not from which they're arrested does not does not specifically enumerated in the statute right that's the point but the statute does encompass asking for the police and criminal record of the I get that but all all crimes never known by police not in any criminal record is a very different inquiry your honor respectfully it's not committed outside United States jurisdiction your honor respectfully it's just an expansion of what's already in the statute and falls under both the capsule and the police no record section no it is not it is I think there's if I said tell me every crime you have ever committed in your life now I assume if I ask you if you have a criminal record the answer gonna be no because you're a member of the bar and maybe even also for police track I'm assuming right if I say have you ever committed any crime recognizing that speeding on the George Washington Park where the Baltimore Washington Park way is a crime not a civil infraction littering in a National Park is a crime you know that's asking you to confess to things that no government authorities aware of that is a big step and it's also a big step closer to the Fifth Amendment then disclosing police and criminal records which are matters of public record your honor I agree with you that that would be asking the court asking in this hypothetical me to confess although I do believe that I do believe the bar application actually does ask how do you take a step on no I do actually the bar applications ask you that they ask you to confess anything that you've ever done regardless of whether you've been convicted of it I think that's actually a question and it is a procedural question again going to the collection of information the collection of information that then might be used in enforcement but even assuming even agreeing with your honor that that's clarifying what her answer was though it wasn't absolutely definitely challenged the even even conceding that point though the harm still comes from enforcement of the statute the harm still arises out of the statute directly not out of the rule and not out of the form the form is not causing any harm here the rule is not causing any harm and so the district court's decision a little hard to separate the confess everything you've ever done and now we're going to use the information on that form to go after you either for deportation or criminal prosecution or both even if they hadn't made that argument in either this court or the court below if they had pledged that there was any reasonable or imminent danger of that specific question being the cause but that's not what they're saying definitely challenge the basis for their Fifth Amendment reparable harm claim you know for the Fifth Amendment claim but as pointed out they haven't actually made a constitutional claim an APA claim includes contrary to law that would include unconstitutional actions would it not it would your honor but I didn't the arbitrary and capricious to ask people for information I'm not I want to get have ourselves I'm not saying that itself would actually violate the Fifth Amendment but it rubs awful a lot closer than anything in the statute does and so you know just to be clear where we are on this but they don't they're they can bring an APA account challenge that says this is contrary to law they could say constitutional avoidance through the statute is not including that in the authority they can do that they can bring the challenge but I think the crux of the incessant at this point is the fact that this is a preliminary injunction that's up on appeal and not a 705 this is not a final rule this is not a 705 challenge this is a permanent injunction challenge that was denied by the district court and the district court determined a weighing law in fact that there was no irreparable harm in this case and there's no abuse of discretion in that finding but you can we I just have a more procedural I'm sorry a procedural question that I'm really kind of confused about what exactly is before us so what's certainly before us is the district courts initial denial of preliminary injunction on the grounds of lack of standing that's before us yes sir then the district court on their application for injunction pending appeal said oh no not a standing problem but irreparable harm problem in evaluating under an abuse of discretion the denial of the preliminary injunction can we consider the district courts analysis of irreparable harm which was only on a injunction pending appeal not on a separate request for relief in the parties yes your honor I agree with you that there's some confusion given the there are three separate appeals in this case but ultimately under the case law this court can consider any of the rulings from the court below and all of the issues that are in the record and so this court can and should consider sort of both of the district court's decisions and I think both parties that true for preliminary injunction discretion which is you said it's abuse of discretion analysis that we can consider if the only viable notice of appeal of course I thought was your arguments this is the first notice of appeal where the district court and for that record that preliminary injunction record coming up to us doesn't include the reputable harm analysis we have to bring a different record up to us a later record up to us to consider the district courts analysis of irreparable harm in this case no your honor if all of the procedural rules have been followed appropriately the second notice of appeal would not have been a second notice of appeal it would have been part of the record in this court because what should have happened is they should have under federal rule of appellate procedure eight they should have then filed a motion for a stay in the district court pending this court's determination instead of being a second appeal and so in that motion that would have rolled up everything including the district courts analysis I'm going to take a second go-round for just as a shorthand but ultimately all of the facts are in the record before this court I mean this court I believe should send a message that this sort of gamesmanship and multiple appeal filing is to be clear let's not there's no reason to make an accusation like that it seems to me it was just a very confusing procedural posture and they're perhaps trying to protect their rights and to get all these things in before a up the horse and so they appealed what they couldn't appeal they didn't know the district court was going to switch horses I think I certainly didn't mean to accuse them of anything your honor more so just to clean up the record and to make it clear I believe this all should have been one appeal but it's all an appeal before the district court rules on irreparable harm that is not before us because what can we consider that postdates the preliminary injunction record your honor if again if this had been sort of by the book this would have been up on a federal appellate procedure eight motion and five relate motions and those have already been ruled on by this court but I don't know that a rule 8 motion allows can we rely on things told to us for the first time and a rule 8 motion to evaluate the district courts exercise or discretion on the record that was before the district court at the time the district court rule that would seem almost unfair to district courts I believe you can your honor because again it's all part of the record before this court and this court has the discretion to consider anything that was properly presented to the district court in making its determination but ultimately even if we go back your honor as I was about to say we should first take a look at the standing argument and the district court as a matter of law was incorrect in this instance in finding that the plaintiffs had established standing in its second order and if the district court was that correct in its first finding the plaintiffs did not have standing in this case the plaintiff associations don't have standing because none of the members have standing none of the members have standing because they have not pled a cognizable article 3 injured injury under the TransUnion line of cases what sorry why not they are some of the members are aliens unlawfully present in the u.s. they're the regulated directly regulated parties your honor they're not directly regulated parties because the harm in this case as the TransUnion court pointed out the harm has to be analogous to a common law or otherwise traditional harm and in this case the harm if any is the home order being prosecuted by another statute I mean TransUnion says that on when there's a an intangible injury that might or might not be concrete for standing purposes this is this may be insubstantial in the sense you can fill out the form in an hour but it's very concrete and there are people who have to fill this thing out and they have to disclose more information and others you know then the statute requires that seems concrete to me your honor going back to the TransUnion and finding an analogy there there were two separate sets of plaintiffs in the TransUnion case one set who definitely had their privacy information released from the government to a third party and they had a cognizable tangible harm there versus the second group who did not have their information released and in fact had just given their information to the in the original recording body and they did not have standing because there was no harm in that case to the intangible non-concrete non-analogous harm of simply maybe your information is out there or maybe it's not we don't know in this case the only requirement that's new is the only thing that's changed is there's now one more form in the menu of forms by which an alien can register with the government before when you had the old laws there and you don't fit into a particular category and you're otherwise not in the immigration line you know with the courts etc what did that group of people do before in terms of often your up until the rule was passed and the new form was created those that group of individuals they had a duty to register but they had no ability to register and so they were essentially flying under the radar so what's happening in this case is the government has taken section the government have taken the position that if you caught somebody who didn't fit into one of those categories you still say they have the duty but then there's no enforcement because they don't have the ability to register because it wasn't a form that they need to fill out so the government would have taken that position that's exactly right under section 1306 the criminal penalties attached to the willful failure to register and there can't be a willful failure to register if there's no method by which to register but stepping okay no I was just going to next move on to the post promulgation comments is there an intention of a final rule your honor I can't speak to that I'm not entirely sure at this point because we're up before the court on a pre-enforcement preliminary injunction challenge the record here is only really what's what we're what's the purpose of the post comments you are I believe the in the federal register the post comments include the the requirements of qualified of the paperwork reduction act and the necessary the necessity to submit data to the OMB the Office of Management and Budget regarding the cost to filling out the form and you know sort of the paperwork reduction aspects of the rule not necessarily the application of the creation of the form because under a USC section 1304 the creation of the form is essentially a mandatory requirement imposed upon the government that the secretary is authorized and directed to prepare forms for registration in light of you know several things going on with respect to the immigration you're coaching your opposing counsel mentioned online form English only how do we expect to get all this information out to people for them to actually comply your honor I agree with you that the fact that it's an online only form and it's English only I know that my my colleague on the other side has made a point about that but there are a number of forms that the US government provides that are online only in English only English is the language of the United States government at this point and it's how all of our forms are created and if the if the crooks are all immigration forms your honor I can't speak only I don't know if they're all English only I do know that not every language is represented I know there's several that's not what I asked I don't I don't they are they English only I don't know your honor well I mean then I don't understand your point about we have lots of forms around English only you're dealing with these reforms regulating a community where by definition a significant percentage will come in where English at best is not their native language and they may not speak it at all and I think it's been long recognized and in the government's interest to make immigration forms available in at least the primary languages of those who tend to enter the United States absolutely no your honor and it certainly may be the case that as this progress as this is only an interim rule it may very well be the case that as this progresses the government will provide translations and provide other opportunities and I would also like to stress your honor that in this hypothetical I mean that's why I'm curious you don't have information for us just a master client about what the status of this rule is because if you're in the process of saying whoops we didn't mean English only here whoops we meant the criminal content of the disclosure of criminal activities to be identical to that in the statute that lets us know what we have to decide and not decide here so surely you can tell us or the client your agency be willing to update us on the status of this rule your honor certainly to the extent that it makes a difference in this courts determination I'm happy to go back and ask my client that and I apologize if I misspoke indicating that there was a mistake in either going beyond the context of the statute or in saying this English only the bigger issue your honor is that the creation of this form and the dissemination of that form as a method of complying with the INA and the statutes the ultimately that is that in and of itself is not a farm and that in and of itself does not provide standing to the plaintiffs you didn't know how is it sorry I'm why isn't it if if police arrest somebody and that person they know that person tells doesn't understand English and they give the Miranda warnings in English only would that be considered consistent with the Miranda requirement your honor no I don't know no okay no okay they would not have been Miranda ice okay that's why police have it in different languages and now you're going to say we're going to impose an obligation on penalty of criminal prosecution due to fill out information you can't read and you can't understand your honor under this hypothetical you're going to tell me that's not a harm you are under this hypothetical the using the Miranda analysis I don't know this for a fact your honor I'm not a criminal attorney but under that same analysis they would not have willfully failed to register under 1306 because they don't as you said they can't understand the form so you're the government's position is that they can't read the form they don't have to register your honor this is a question I haven't you just said that to me I'm saying in the hypothetical under this hypothetical under the Miranda analysis so the same you just said it wouldn't be willful you see there's no willfulness from Miranda so I assumed you were transitioning to the willful requirement in the stashes but I believe I believe that if there wasn't so you're in English and they don't speak or understand English it's not that your honor I think that the the prosecution again is a different statutory section than the requirement I don't know what that's have to do with with anything if they're they're reparably injured if they face prosecution that's a risk people don't want to be people want to comply with the law people don't want to be prosecuted and they're left here in this rock-hard place that I can't understand this form I don't know what to do with it but I'm told I have to do this and you said well it won't be a problem because clearly it won't be willful non-compliance and they can't understand the form which is a very sensible position for the government to take I'm just making sure I understand it right your honor I'm not in a position to speak to whether or not that is in fact the position that the government would take in an enforcement past this point but I do believe that the underlying issue is whether or not this rule as a procedural rule is somehow converted to a substantive rule merely because of the menu of language options presumably any number of language options will be insufficient they're always me quite a conscious decision in the immigration context where by practice tradition just realistic enforcement the government uses multiple languages including predominant languages and then this rule comes along and says no in the immigration context where we are seeking information from people where we can probably take judicial notice of the fact that a large percentage will not speak English or will not speak it fluently enough to maybe understand exactly what they're being asked on a form and the government has chosen to do it in English only unlike many many if not all other immigration forms and they're doing it when they know the population will be subject to deportation or criminal prosecution if they don't fill it out and you want to tell me that putting people in that bind is just routine paperwork obligation as opposed to a substantive judgment by the government that increases the risk of harm to people in their efforts to comply your honor I'm not saying that that is the case I'm simply saying that the fact that the form is in English only doesn't it isn't the case I just described to you the case I described to you factually what has happened here what about my description was inaccurate I mean as soon as this is an intentional decision it's a rule I mean you intend what you say in your rules yes your honor and again I'm happy to provide more information about when and if additional translations are forthcoming but the fact that the initial version of the form in the interim final rule happens to be English only does not by in and of itself make this into a substantive value judgment or encoding anything that infringes on rights it's a it's a form that they're required to create they're directed to create under section 1304 to make sure that all aliens have the ability to register as they're required to do the duty to register the IRS said we're gonna issue new tax codes they're new tax forms they're just forms for everyone to fill out for their taxes we're not creating tax obligations it's just new forms in ancient biblical Greek notice and comment needed it's a good question uh no because it's it's we can all be permanently prosecuted for not filing our taxes and once we can find the five people in the United States who know how this means ancient biblical Greek and that's not a change in people's obligations they're gonna take an effort face consequences the hypothetical and the points you're making I think are important points to consider but if we step back and look at the underlying issue in this case is the creation of a the twelfth form in the menu of forms that an alien can use to register with the government is the creation of the twelfth one in that list this is one universal one for people who aren't seeking those other five but they can't fill out those other forms they can't fill out the visa form if they've been here already for a year they can't if they're not seeking asylum they can't fill out that form it's this is the only form that applies to millions and millions of people who haven't had a form for a long time that's exactly right there are millions of people that have been unable to comply with the statutory duty to apply for registration and the government is taking steps to fill the gap as Judge Childs pointed out to fill the gap between section 1304 and duty to create forms to register and section 1302 the duty to register there has been space in that in that arena up until this rule was created and the government has taken steps to close the daylight there and make sure that there's a one-to-one connection between its duty to create forms to enable everyone to register and the individual's duty to register did all the other forms that were identified with respect to the INA go through the notice and comment period your honor as we pointed out in a brief several of them do not at least seven instances of did not go through the notice and comment because they were merely procedural rules as this one is and going back to I believe it was just as your question about you know the impact on this this court has previously held in the epic case in the TSA epic case that substantive impact the fact that it's impacting a million people does not give make it automatically a substantive rule what matters is whether it changes the rights of the individual with respect to the agency and the rights in this an interest rights or interest yes your rights or interest and the rights and interests of the individuals in this case are set forth in statute and have been for 80 years they have a duty that the rights and interests of the individual is to register so I could apply for registration that's what the duty is that's that has been the substantive right and interest for over 80 years nothing in this rule changes that just the government intend to promulgate a final rule your honor I assume so based on the text of the Federal Register and the fact that they are do we know anything about where that stands I do not your well I guess maybe that moots out my next question which was going to be would this case moved out on promulgation of a final rule it would at this point if nothing changed your honor and the permanent junction remains denied and the district courts subsequent ruling to stay the district court matter pending this court's determination if if nothing else changed and there was a final rule runner that might boot this out but given that we're in a pre-enforcement pulling injunction context I can't couldn't say for certain one other question for me they're the way this works this new form was added to a list of forms in the regulation that will satisfy the public the general statutory obligation to register to these other forms include all of the questions on the newly promulgated one to the best of my knowledge your honor they all include the first four questions that are set forth in 1304 and then I think there are variations between them based upon the intent of each of the form like I suspect I just because this form has a fair amount of content that falls within the statutorily required questions but it also has a fair amount of new content that is perfectly fine under sub 5 of the statute but it is new content your honor again it's like I agree that there is some there are some questions on this form that have not been included in this forms but there are other instances as I said we point out in our brief there are at least seven other instances where the agencies have created new forms under the procedural rule and those I mean those have different questions the crew members land the crewman's landing permit forms has different questions in the visa application form because the purpose of the forms and the information sought is different and there are going to be some subsection five variations there and as to the new material your position is some combination of this is all procedural like providing information to the government to facilitate enforcement of other obligations and or not that yes your honor it's procedural or ministerial almost based on the specific languages 1304 it also falls under this court's precedent under interpretive rules as in the u.s. telecom case where it can't be interpretive because you just told me there's there's new content being required sorry but in the telecom case this court sort of said you know if it's just crisply delineating the lines and that's that's sort of what's happening here they're just there was a burden helps resolve the edge cases is the point yes your honor thank you for the time I appreciate it thank you very much for your assistance hey there's no point and yes for three minutes for a battle yes thank you your honors just wanted to start talking about the harm issues that came up in my colleagues section we wanted to emphasize that the harm is not solely from the constitutional the injury to constitutional rights that we have talked about extensively and I understand your honors have some questions about we're also talking about the harm to members such as the UFW members who submitted declarations in this case that they simply cannot access these forms because they don't have smartphones or access to the internet and do not speak English and therefore cannot fill out the forms and go through the registration process placing them at direct risk of prosecution under the government scheme we do not concede that the harm only arises as my colleague on the other side said from extraneous factors such as increased immigration enforcement there are several other harms that we've identified in our papers second as to the wide swath of information that the IFR is requiring beyond that which is required by the statute as we have said previously that implicates the need for notice and comment because it reflects a substantive value judgment that the agency is making here about the content of what to include here but it also speaks to the arbitrary and capricious nature of this role and the government's choice to make it only an English form an online only form and to require the disclosure of all this other information so it goes to both aspects of the APA claim the other rules that didn't go through notice and comment that my colleague mentioned as we point out in our reply brief those are instances where the government was narrowing the burden on individuals taking off certain requirements for fingerprinting and so forth when they did add additional burdens those rules did go through notice and comment rulemaking most famously and recently in the end Sears program after 9-11 that required members of certain nationalities and predominantly Muslim countries to register with the government which was subsequently rescinded both went through the imposition of the requirements went through notice and comment rulemaking now whether or not the government is ultimately going to promulgate a final rule the reality is that they are prosecuting people now for failure to register and that's all that needs to be known about the government's intentions here in addition we did ask for a 705 stay in addition to a preliminary injunction I just want to clarify that and my colleagues comment about the other forms not requiring all this information just look at one of the pieces of registration evidence which is the notice to appear in immigration court that is the form that the government itself issues and does not require disclosure of all this other additional information and with that I see my time is you know if most now other immigration funds are in multiple languages your honor I believe that some are but not all of them but those would be for immigration benefits rather than the imposition of criminal and civil liability as this form is here which we believe speaks to the need to have it accessible in multiple languages as to the issue about the criminal records in the INS under a USC 1304 a or it does state that you have to indicate your police and criminal record if any of such alien so by that being vague you know with respect to police or criminal record that could include arrests and it also doesn't limit itself to the United States so do you think that's different than what's on this one we do in the sense that the new form requires any potential crime that was committed anywhere in the world that wasn't necessarily charged in any manner or prosecuted and therefore it goes far beyond what's required by the statute your honor with that we would respectfully request that the district courts order be reversed and a 705 state or preliminary injunction entered thank you thank you Swami I think it would be helpful to the court if you could contact your client and give us an update on the status if any of the rule with the potential of a fight what our final rule is expected or comments are expected that's right just a status report on the current status and and future plans yes just to keep us updated thank you right with that the case is thank you to both counsel