John Hawkinson

(They're done.)

The Land Court has re-set the case management hearing for April 2, and there are no substantive docket updates, but the City Council has an executive session Monday afternoon:

#cambma City Council / School Committee budget roundtable meeting is about to start…rescheduled from last week's snowstorm.

I am…not going to offer any meaningful live coverage.

Clerk's notes.

PBS: I'll take it under advisement.

Hearing adjourned, 10:29:59am or so, or maybe 10:30.

PBS: It is a procedural pretzel. Let me think about it some more.
I will be waiting until…what is it, March 12? the 9th circuit?
Otherwise the Solicitor General goes up?

KS: I can't represent what the OSG is going to do…
PBS: Thorny issues. A little rough to give a deadline to a circuit.

PBS: One thing i'm _not_ doing is certifying a seperate class in Hurtado. But this court is taking care of everyone who gets there. We are right on top of it, every single judge. And Mr. Farquhar's operation has been excellent.

We have a process, we're not ignoring the due process rights.

DM: it is somewhat unfathomable to me that an IJ, faced with a declaration from an Art. III court, under the declaratory judgment act, …, …, … if there's nothing on the other side of the ledger, that they would ignore your decision.

PBS: Well, the Gov. is estopped from… but she is arguing 1225(b)(2

DM: we don't exactly understand why.

Earlier in the Calif. case, the Gov. argued it did not have geographic scope beyond C.D.Cal. It maybe that the Immigration Courts here in Mass. because of the geographic scope of that decision. A decision locally would be quite helpful.
If that's the reason.

DM: This court should procede.
1, the Gov. has filed an emergency motion in the 9th circuit. At that point, if no vacatur order from this court is in place, there would be a gap in coverage.

2, after the vacatur order entered, it appears the IJs in Mass are still not providing bond hearings here.

PBS: I will not be dismissing the due process claim.
Not sure if it is ripe to do the vacatur, if the 9th circuit — and if they're not following it anyway. But if it gets stayed, it's back on my plate. Mr. McFadden?

DM: I wanted to touch on the vacatur order.

PBS: Assume the 1st circuit agrees with the 5th circuit — I'm not assuming that — I would want to jump immediately into the due process stage of the case. I don't view this as done.
But if it agrees with my statutory interpretation, unless the Supreme Court steps in, I think this case is over?

PBS: You'll let me know if the 9th circuit stays that, otherwise it is the law here.
KS: They may still be denying bond hearings on §1225(b)(2) but not in reliance on Hurtado…

PBS: Has someone informed the chief judge of that?
KS: Not to my knowledge…

PBS: Is this moot?
KS: We've sought a stay of that decision, that's the one we've asked for a decision by March 13. Right now, an order is not going to additionally vacate it.

KS: But we have — ICE has served everyone who got the original notice.
PBS: And giving them access to a phone?
KS: Yes.

PBS: Sense that every single IJ is denying bond based on that instruction?
KS: Right now, Hurtado is vacated, so we're in a different posture RIGHT NOW.

KS: We have been…court set 3 hours, but we have been doing it the same day.

how it works: The ICE TA is not in the same room, and the hearing is remote. The hearing session lasts 2-3 hours. At the end, the TA reports to ICE and they can then serve those people.

…
PBS: What you're not recognizing is the unusual moment that we've had 1,000 habeas petitions. Almost all these people are getting out, but it's just delaying the process.
Have notices been given to all these people that they have a right to go to federal court?

PBS asks if vacatur is an issue in the 8th, and 6th circuits?
KS says no. Nor the 5th.

KS: The underlying statutory interpretation is at the core of petitioner's APA claim…so many threshold issues.
Vacatur…petitioner says routinely done, but hasn't cited a single decision that says so.

PBS: Did you ask the First Circuit for a particular time?
KS: No, either party still could. A stay motion in the 9th circuit is a little more [quick].

PBS: If I vacate, would they sitll follow Hurtado?
KS: No. Currently it is vacated by the Bautista court (Sykes). There is a stay motion pending in the 9th circuit.

Ray Farquhar, chief of defensive litigation for the D.Mass USAO's office, is flagged by PBS as having stats. He comes on screen.

RF: Over 1,000 habeas petitions since September.
He doesn't track them after the district court part is done.

PBS: You understand the hardship you're putting us in. Everyone's been swamped.
Just got notice from someone, she missed one of our orders, I'm not saying it was intentional…

[ It's like she's not following the news of violations in NJ and Minn., I guess? ]

KS: It's like an appellate court decision, but it's not a final agency action until applied to an individual in the context of an adjudication. Different from a rule, as bond hearings are in the context of an adjudication.

KS: What you're going to get from a First Circuit decision would be more effective than vacatur of Hurtado. w/o nationwide complexity.

PBS: Do you agree Hurtado is effectively a rule?
KS: No, it is a published decision
PBS: A final agency action?
KS: No, not in the context of adjudications.

KS: If the court's not inclined to dismiss that APA claim—

PBS: — I won't be dismissing either claim…probably.

PBS: What if I vacated Hurtado without — I'm not inclined to certify a class.

KS: IJs could still apply 1225(b)(2)(a) without relying on Hurtado.

PBS: Do you know what happened? The Chief immigration judge? She may disagree with it, but I did rule.

KS: Well… that is consistent w/ the position all along that a classwide declaratory judgment is not coercive, otherwise it would run afoul of §1252(f)(1).

DM: The only complicated scenario would be if a person here were transferred to the 5th circuit. But the Gov. has agreed they are still class members.

PBS: Do you know what happened in that case?
DM: No.

DM: Yes, a general vacatur order would operate for all people impacted by Matter of Hurtado

Immigration Courts would look to local laws in their areas.
In the 5th circuit it would be different.

DM wants two vacatur orders, a general one, and a specific one for class members so "no one can tell our class members they aren't covered by the general vacatur."

PBS: But if I vacate it, I vacate it for the country.