Are admonished to dry. The court is now sitting. God save the United States and this Honorable Court. Chief judge gregory, naplease the court. Mr. Wall, if i can ask you before you get started to clarify what you view the scope of the preliminary injunction to be. I have two questions. The District Court order enjoys section 2c of the executive order with suspended entry. During the District Courts discussion of success on the merits, the District Court said that suspension of entry suspension of entry under 1182 did not conflict with section 1152bar discrimination and immigration visas. Heres the question. Is it your view that the District Courts injunction enjoins the suspension of entry provision as well as the denial of visas, and does it apply to both immigrant and nonimmigrant visas . Your honor, i think the answer to both of those questions, as i read the order that the District Court separately entered is yes. Now, i think the reasoning of the courts opinion would indicate that this injunction against suspension of entry cant stand. At most it would justify an injunction that would force us to give immigrant visas, not nonimmigrant visas, and it wouldnt get you anything attentry. That seems to me the reasoning of the District Courts opinion but as i receipt the order and the end of this opinion it says im enjoying 2c everywhere it operates in the United States and across the United States borders and at every point of entry, not confluence, not the issuance of visas, it said section 2c. Thats the way weve taken it and the injunction weve been complying with. That was based on a vie laflgts establishment clause, right . Yes. That was the basis for not based on the statutory violations, i understand it. Thats right. I mean, i think his statutory analysis would suggest that he could not have entered this injunction, but by think he did ultimately enter the injunction just on the establishment clause claim, and i think thats how he got to suspending entry under 2c. Do you view him the issuance andentry in. Judge, heres what would i say. The 11828f gives the president Broad Authority to suspend the entry of any class of aliens when he dream it in the national interest. The way that the state department has always read that is to say when you are suspended for some valid reason under 1142f well deny you a visa because it doesnt make any sense to travel here and be denied entry at the bothereders and the reason is not the underlying reason for the suspension. Its that youve been validly suspended under 1152f. 11452 is not a limit on 11828. Its always been limited to did the nile of visas and forcing us to grant visas just so people can come to the country and be denied entry we would say it a fruitless exercise that the state department has never engaged in. Ittant doesnt conflating 11828 and 1152, doesnt it render 115 it superfluous . I dont think so. 1112 applies across board nor circumstances well beyond suspension where were just anding out immigrant visas, and what it was designed to do is set aside the nationality limits that had xiflted before the amendment. All this does it says, and i think the d. C. Circuit said this, in the narrow context of the president s sweeping power under 11828f it says, all right, the president has the power to suspend entry. We know that under 1112f. We wont read 1152 in that instance to force the government to give out visas that we know they wont have to honor when they show up. Were going to say when youre denied a visa under 1152 its not to look through and see what the reason was. Its just youve been validly suspended under 1182 and thats got nothing to do with nationality. Is tharp reading supported by section 1201g or section 1201g have sort of a different role . No, i think it is supported by 1201g and we pointed that out in our opening brief because what it says a visa doesnt allow you to enter. Its a travel document that says you can come to the United States and we can look at the border to see whether well admit you and a customs official who has a reason not to let you in can deny entry. 1201 supports the view if the suspension is valid as a statutory matter under 11828f we shouldnt read 1152 to force the government to give you a visa, but, again, if you brought that distinction, it would justify a very different one from this one. It would just be an injunction that says for the 30 or so aliens here seeking immigrant visas, only thing 1152 applies to by terms, we would be forced to give them visas when they showed up at our borders. We would say its harsh and fruitless. In real world terms what does this injunction stop you from doing that you could have donor wise . If these folks now just go through normal process, does it net them participation in the process, and does it mean they can get on a plane is and off the customs area . Does it allow them in the country . Whats the real net gain for someone under this injunction . Yes. So when youre talking about the six lists countries, so iran, sudan, somalia, libya, yemen, what what the injunction does is we what the president wanted to do was say i want to reassess vet willing procedures for those designated countries which were designated by congress and the Previous Administration. I got all in a. Netherworld what does it mean . Netherworld is says look, mr. President , you cant treat nationals from those countries any differently if they show up at a conflict and eligible to get a visa you have to give them one. You cant say im going to suspend your entry unless you qualify for a waiver. What does that vita entitle them to do. To come on a plane and come to the United States and when they arrive in the United States, unless there is some specific reason like a National Security threat that the customs official detects, they are admitted to the United States. Thats the effect. With all respect to this assessment of vetting procedures, its been more than 90 days since the first order was implemented. Has the government made any efforts or any efforts to engage in that vetting process . Weve not been able to, judge diaz, not because of the result of the injunction. Why, because youre adding briefs . No, judge. Because the judge only enjoined 2c but the district judge in the hawaii case enjoined all of section 2 and all of section 6 and section 2a is the section that directs the department to conduct a review of the vetting proceed use with respect to these countries. We went back to the hawaii judge and said, look, you cant possibly have meant to enjoin internal government procedures to look at vetting for these six nations an in the face of that motion the district judge said, yes, im standing by my injunction on section 2c. Weve complied by in a injunction and put our pens down and havent done any washington so the 990day period in our view hasnt been able to run at all what about the 90day period in the First Executive order. Thats an excellent question. When the first order came out, the state department and Homeland Security did begin to assess the vetting procedures for these designated countries. They didnt finish that review, but they did some washington. So you wont need the whole 90 days in any event, right . The problem is as soon as the second order came out, there was an injunction before it even took effect so they put their pencils down. Exactly how much time they need to finish i dont know but the point is since march 16th we have complied with the hawaii injunction and weve done nothing to review the vetting procedures for this thats after the First Executive order, before the second one went into effect is by 50 days, so 50 days of the 90day period ran, is that correct . Thats right, judge king, and we did you said you were not doing it because you believe youre forbidden by the order to do it. We went back to the judge in hawaii and said surely you only meant to suspend the entry of nationals under 1c of the listed countries and refugees under six 6. Surely you couldnt have meant to suspend or to enjoin the operation of other provisions that were not the subject of the briefing and internal to the government and the District Court in the face of that denied our motion and we have weve taken the injunction by its terms, deeply disagree with it but have scrupulously complied with it. Let me go back to the visas to make me understand it. If 2c were in effect, an application was made by a person from one of these countries, how would that be handled . How would the request for a visa be handled . If youre a Somali National and you came to a consulate and were you seeking a visa, what the consular officer would do, as with anyone else, he would say do you satisfy the other criteria to get a visa because theres lots of other grounds than 11828a that can render you inadmissible, ties to terrorists and all the rest. If you qualify for all of those, what they would then say is, okay, are you eligible for a waiver . If you have a close Family Member in the United States or youve done work there or youre going to study there, then you can get a waiver. Under the Current System were not doing it individualized on sort of a waiver basis. Youre treated like everyone else. You have satisfy the criteria and you get the visa even forecast youre from one of these countries and i think thats sort of a crucial point. The congress and the Previous Administration designated these countries, it wont Susan Macdonald by this administration on the basis National Security threats and what the department when he came into office said, look, i know the Previous Administration was satisfied that that was enough for these particular countries, but would i like an opportunity to reassure myself that were doing enough with respect to those countries. Youre saying the Previous Administration did what with respect to those six countries . It took dual nationals and travelers to those countries so individuals with connections to those countries, it took them out of the Visa Waiver Program so it said unlike nationals from other countries, were not going this those countries in their entirety. Dual nationals and even just visitors to, individuals with only those six countries. Well, yes, seven countries including iraq, but those seven countries, yes, and it said, look, for those, were taking them out of the Visa Waiver Program and well make them get visas and this administration said, okay, thats well and good, but we are not sure that the procedures by which were giving them visas are reliable enough because were not sure the governments are giving us good enough information. We want a 990day them visas ar enough. We want a 90day pause subject to the individualized waiver process while we check the procedures and make sure its enough. At bottom thats a policy judgment for the administration to make, and a number of the arguments the plaintiffs are making are in essence tackling that policy judgment. They deeply disagree with it, and i understand that, but its a difference of degree not kind from what the previous seems to me they are not attacking the policy judgment or the merits of the policies so much as they are questioning whether that really is the policy behind this order, isnt that right . And those are two different things. We, of course, customarily defer to the executives assessment of National Security, but thats different, isnt it, for whats really going on here . It is, but i think its important to understand the Legal Standard the District Court should have applied and im assuming, by the way, you found the one individual plaintiff has article 3 injury and has standing, but assuming you disagree and go to the merits, what we would say is under mandel, the question is legitimate and bona fide and that is rational basis for review and the question youd ask under rational basis review was, was it irrational for the president to decide i want a 90day pause to look at these procedures and as long as the arguments are framed in that context, was that an irrational judgment, no reasonable Government Official in the executive branch could have made this judgment, we have no objection to them, but most are framing under a far more stringent standard. How did bona fide get collapsed into rational basis . Seems to me the mandel formulation talks about what is the facial rational and also is it bona fide. And those are two different things. They are. I think there would be an interesting debate to have about what the bona fide means, except for what mandel said and what it did, because after it said was there any evidence in mandel, a public statement, official statement on the record that called into question the purported rationale for the decision in. Judge harris, two quick things on that, the court said courts will not look behind as long as its facially legitimate and bona fide. Bears conduct, but yes, there was. Justice marshall in descent says if the court would take, quote, just the briefest peek, he said, youll all see that the attorney general didnt deny mandel a visa because he had failed to comply with a visa on a previous visit. He denied it because he was a communist and he wanted to come to the country and talk about communism and marxism. The court said no. When the executive puts forward a reason that is on its face legitimate and that bears a relationship to what it did, were not going to go down the road of inquiring subjective motivations. Thats why supports the legitimacy of this on its face. So the order lays out the conditions in these six nations. The original order did not, but the president went back and in redrafting the order in response to courts concerns, went back through the six listed countries nation by nation in section one and said, heres why i think based on deteriorating conditions in these countries and their governments unwillingness to provide us with reliable information, im going to put a temporary pause while i take a look at our procedures for just these six countries. That evidence in the order on its face bears a rational relationship to what the president did. And if you treat it as rational basis review, which is what this court said the mandel standard is, rational basis review, other circuits agreed with that, the 2nd circuit agreed with that. Under rational basis, i dont think any question that in any other context if we had a law that set out factual findings like this, wed say that survives rational basis. Going back to judge kings question that there were 40 and judge motz, there were 50 days elapsed in the 90day period already, so the government had 50 days to do their vetting, presumably to add more to the record. Has any was any vetting done in those 50 days . Judge thacker, i think the first part is right, but i want to disagree with the second, which is we did do some work. Those departments were required to produce a report to the president. That was what the sorry . Within 30 days they were supposed to give a brief to the president. Thats right, but part of the reason, judge king, that the 90day period exists is to free up resources in those departments so they can do the review, and instead what weve been doing since january 27th is just litigating this order. We do not have that report yet, so i cant say to the court what the state departments and Homeland Security departments final the District Court in the 9th circuit only enjoins sections 2 and 6, so you still have sections. All those things are in order now, youve got this uniform baseline for vetting and screening. Youve expedited completion and implementation of biometric entry exit tracking system . My understanding, judge motz, is iraq is no longer apart of 2c, obviously. There has been work done in iraq. This is the most important thing under section just decided iraq is not how does that show us that youre furthering the terms of this order . You said you couldnt further 2 and 6 because they are enjoined. Im talking about 4, 5, 8, and 9. I meant to say the other sections have not been enjoined. The most relevant section is section 5, saying we can look at all nations across the board and we have been doing that. My understanding is there has been substantial progress in state and Homeland Security. They havent released anything yet, but theyve done a lot of work on it. What they have not done in doing that is anything specific to the listed countries because we have read ourselves to be barred from doing that. So there is work going on in the biometric screening and raising the standards across the board, but what were talking about here are just the standards for these six countries and that we have not been doing work on since march 16th. Let me take you back to standing for just a second. The government takes a position that none of the plaintiffs that the District Court appointed standing to have sustained, but do you differentiate for standing purposes for those seeking an immigrant visa as opposed to a nonimmigrant visa . We dont think it makes any difference. Our standing is this, were down to section 2c, they put forward four plaintiffs in the District Court who said we have a relative overseas whose entry will be delayed by 2c. Three of the plaintiffs have now dropped out. One because her sister is waiting for years anyway and they concede, i think, they havent argued all four for immigrant visas . I dont know off hand. Ill know for you on rebuttal whether they are immigrant or not immigrant. I believe they are all immigrant visas. And the other two have received visas now and we