Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 1 of 31 Page ID #:287 1 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 3 HONORABLE S. JAMES OTERO, U.S. DISTRICT JUDGE 4 5 6 7 8 ALI KHOSHBAKHTI VAYEGHAN, ) ) Petitioner, ) ) vs. ) ) JOHN F. KELLY, et al., ) ) Respondents. ) ____________________________________ ) Case No. 2:17-cv-00702-SJO 9 FATEMA FARMAD, et al., 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ) ) Petitioners, ) ) vs. ) ) DONALD TRUMP, et al., ) ) Respondents. ) ____________________________________ ) ) ) ) Petitioners, ) ) vs. ) ) UNITED STATES OF AMERICA, et al., ) ) Respondents. ) ____________________________________ ) Case No. 2:17-cv-00706-SJO BADR DHAIFALLAH AHMED MOHAMMED, et al., Case No. 2:17-cv-00786-SJO REPORTER'S TRANSCRIPT OF PROCEEDINGS FRIDAY, FEBRUARY 10, 2017 10:07 A.M. LOS ANGELES, CALIFORNIA ________________________________________________________ CAROL JEAN ZURBORG, CSR NO. 7921, CCRR, RMR FEDERAL OFFICIAL COURT REPORTER 350 WEST 1ST STREET, SUITE 4311 LOS ANGELES, CALIFORNIA 90012-4565 (213) 894-3539 UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 2 of 31 Page ID #:288 2 1 2 APPEARANCES OF COUNSEL: FOR THE PLAINTIFFS ALI KHOSHBAKHTI VAYEGHAN AND FATEMA FARMAD, et al.: 3 4 5 6 7 8 9 10 LAW OFFICES OF STACY TOLCHIN BY: STACY E. TOLCHIN Attorney at Law 634 South Spring Street, Suite 500A Los Angeles, California 90014 (213) 622-7450 FOR THE ACLU FOUNDATION OF SOUTHERN CALIFORNIA: PETER BIBRING ADRIENNA WONG Attorneys at Law 1313 West Eighth Street Los Angeles, California 90017 (213) 977-9500 11 FOR THE PLAINTIFFS BADR DHAIFALLAH AHMED MOHAMMED, et al.: 12 13 14 15 GOLDBERG & ASSOCIATES BY: JULIE A. GOLDBERG BY: DANIEL COVARRUBIAS-KLEIN Attorneys at Law 5586 Broadway, Third Floor Bronx, New York 10463 (718) 432-1022 16 FOR THE DEFENDANTS JOHN F. KELLY AND DONALD TRUMP: 17 18 19 20 UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION, CIVIL DIVISION BY: BRIAN CHRISTOPHER WARD Assistant United States Attorney P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-9121 21 FOR THE DEFENDANT UNITED STATES OF AMERICA: 22 23 24 25 UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT SECTION BY: SAMUEL P. GO Assistant United States Attorney P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-9121 UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 3 of 31 Page ID #:289 3 1 LOS ANGELES, CALIFORNIA; FRIDAY, FEBRUARY 10, 2017 2 10:07 A.M. 3 --oOo-- 4 THE COURTROOM DEPUTY: Calling Item No. 2: 5 Case number CV 17-00702 SJO; Ali Khoshbakhti Vayeghan versus 6 John F. Kelly, et al. 7 8 9 Calling Item No. 3: Case number CV 17-00706 SJO; Fatema Farmad, et al., versus Donald Trump, et al. And calling Item No. 4: Case number CV 17-00786 SJO; 10 Badr Dhaifallah Ahmed Mohammed, et al., versus United States of 11 America, et al. 12 13 14 15 16 Counsel, would you please state your appearances. THE COURT: Let's start with counsel for 702, the 702 case, Vayeghan. MR. WARD: Good morning, Your Honor. Brian Ward on behalf of the United States. 17 THE COURT: 18 MR. BIBRING: Good morning. Good morning, Your Honor. Peter 19 Bibring of the ACLU of Southern California for petitioner 20 Ali Vayeghan. 21 MS. TOLCHIN: Good morning, Your Honor. 22 Tolchin for petitioner Ali Vayeghan. 23 MS. GOLDBERG: 24 25 Good morning, Your Honor. Stacy Julie Goldberg for Badhr Mohammed. MR. COVARRUBIAS: Daniel Covarrubias for Mohammed. UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 4 of 31 Page ID #:290 4 1 2 MS. WONG: Adrienna Wong for the plaintiffs in the Farmad case. 3 4 Good morning, Your Honor. MR. GO: Good morning, Your Honor. Samuel Go on behalf of the defendant in the Mohammed case. 5 THE COURT: 6 Good morning. Please have a seat. Let me welcome all counsel this morning. I know that you 7 have been summoned here on some short notice. I was hoping to 8 have a conversation today regarding President Trump's order, 9 the executive order, and I was hoping to commence discussion 10 involving the INA, in particular Section 1182, and then moving 11 on to Article 2, Section 4 of the Constitution, and then also 12 some of the Supreme Court cases, including Shaughnessy and 13 Mendel, and then all of the various issues that are implicated 14 in the proceedings, including the establishment clause and due 15 process. 16 And then I was hoping to have a compare/contrast regarding 17 Judge Gordon's order and Judge Robart's order, but all of that 18 essentially got sidetracked by the Circuit's order yesterday. 19 So I think today, for those of you in the audience today, it's 20 not going to be a substantive discussion. 21 status conference here. 22 I hope you are not too disappointed. And so how many caught on page 17 of the per curiam order 23 yesterday, the pun involving Trump? 24 17? 25 It's pretty much a No? Anybody catch that on page No hands? UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 5 of 31 Page ID #:291 5 1 One hand, one hand over there. I was surprised. 2 In any event, we start with case number CV 17-00702 SJO, 3 Vayeghan. 4 petitioner's status report that was filed yesterday. 5 status report it's referenced that petitioners agree there is 6 no longer any urgency underlying the resolution of the issues 7 set forth in the TRO and no immediate action needed on the TRO. 8 9 So let me have counsel address that issue. I have a In the There is a representation that the parties are in discussions as to whether the circumstances of petitioner's 10 admission to the United States constitutes full compliance with 11 the TRO. 12 resolution or settlement of that matter, and so the question is 13 whether the Court should dissolve the TRO or dismiss it as moot 14 or consider another avenue here. 15 16 So when you address the Court, would you also just restate your name every time. 17 18 19 It appears that the parties are working on a MR. BIBRING: Thank you, Your Honor. Peter Bibring for petitioner, Ali Vayeghan. That's correct, Mr. Vayeghan has been admitted to the 20 country. 21 admitted as a lawful permanent resident. 22 question pertains to the cancellation of his visa, the physical 23 cancellation of his visa, while he was detained at LAX on 24 January 28th. 25 His passport has been stamped such that he has been Essentially, the only Basically -- and I have a copy for the Court, if you would UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 6 of 31 Page ID #:292 6 1 like to see, but basically the CBP agents physically wrote the 2 word "Revoked" over the front of the visa. 3 question, I think, the Government -- and we have been in 4 conversation, and there is agreement, in principle, that he 5 should be admitted as a lawful permanent resident, that he 6 should have his visa. So the only 7 The only question is, essentially, if his paperwork is in 8 order or whether this cancellation will, at some point down the 9 road, create a complication, create grounds for the argument to 10 argue he is in the country without a lawful visa. 11 in conversation about whether there's a need to resolve that 12 issue and how it would be resolved. 13 THE COURT: And we are And I understand some of the concerns 14 here. I will hear from the Government, but it is in the nature 15 of a writ of habeas corpus and then application for TRO. 16 if he's not being detained, I'm not sure it's appropriate for 17 the matter to proceed as a habeas corpus proceeding. 18 MR. BIBRING: And Since he was detained at the moment, 19 my understanding of habeas jurisdiction, that continues until 20 all restraints on his liberty are completely vindicated. 21 although he has been released, if there are continuing issues 22 related to his detention, habeas jurisdiction remains proper. 23 As to the TRO, we certainly agree there's no continuing 24 urgency. 25 TRO has been fully complied with or not, so -- So And essentially, the conversations are whether the UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 7 of 31 Page ID #:293 7 1 2 THE COURT: dissolve the TRO? 3 4 So there's no objection for the Court to MR. BIBRING: I think that's right, and we can proceed without -- 5 THE COURT: And then in reference to whatever 6 remains, what do you propose? 7 matter? 8 parties in 30 days? 9 resolved in approximately 30 days. Require a status conference to be submitted by the It appears that everything will be 10 MR. BIBRING: 11 THE COURT: 12 MR. WARD: 13 16 Am I correct? That's exactly right, Your Honor. Counsel for the Government? Yes, Your Honor. Brian Ward for the Government. 14 15 That the Court continue the THE COURT: What is your request in reference to MR. WARD: I agree with opposing counsel on this. 702? 17 Basically we just need a little more time to ensure that the 18 visa and passport stamped "Revoked" doesn't have any collateral 19 consequences for him. 20 could to comply with the Court's order. 21 stamped with a notation noting that he was admitted as a lawful 22 permanent resident. 23 When he came in, we did everything we His passport was And so we are just exploring whether having that visa that 24 was marked "Revoked" when he first arrived in the country will 25 have any consequences for him, and we have been working to sort UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 8 of 31 Page ID #:294 8 1 that out and see if there needs to be any other assurances to 2 make sure there are no future consequences for him. 3 there's no urgency, and we are working. 4 more time, I think, to resolve it, and we can update the Court 5 that's happened. 6 7 THE COURT: 9 MR. WARD: necessary. We just need a little Is the Government working to have a new visa issued without the stamp on it? 8 But Is that -- We are exploring whether that's I'm not sure that issuing a new visa or having him 10 apply for a new visa is the easiest way to resolve it. 11 Maybe -- we are looking into it, but there are a number of 12 agencies involved, so we are exploring what issues the revoked 13 visa might have and whether it has any effect on him. 14 I have better answers to those questions, we will figure out 15 how we will be able to resolve this, but the Government is 16 committed to resolving this and making sure there are no 17 consequences from that stamped revoked visa. 18 THE COURT: And once So I have some complete understanding 19 here, it appears that what counsel for the parties are asking 20 the Court to do today, there is no dispute that the TRO should 21 be dissolved. 22 whatever remains in terms of the habeas matter, that matter 23 should be continued 30 days, providing the parties an 24 opportunity to resolve issues. 25 for a status conference in 30 days back to this Court. I think that's probably appropriate. And then And then you can report back UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 9 of 31 Page ID #:295 9 1 Is that -- status conference hearing, is that the request? 2 3 MR. WARD: That's fine with the Government, Your Honor. 4 THE COURT: 5 MR. WARD: 6 THE COURT: 7 MR. WARD: 8 THE COURT: 9 MR. BIBRING: 10 Counsel, where are you located? Where am I located? Yes. Washington, D.C. Okay. Final comment? THE COURT: That's exactly what plaintiffs want. In reference to CV 17-702, Vayeghan, et 11 al., versus Trump, the Court would dissolve the TRO issued by 12 Judge Gee back on -- I believe it was January 31st when it was 13 issued. 14 conference hearing. 15 The Court would set this matter for a status And let me have a date suggested by the clerk. 16 17 18 THE COURTROOM DEPUTY: the 10th, Your Honor. (Discussion off the record.) 19 20 THE COURT: March 10th. So the clerk has suggested Friday, Does that work on your respective calendars? 21 MR. BIBRING: 22 MR. WARD: 23 THE COURTROOM DEPUTY: 24 THE COURT: 25 Let me suggest Friday, March Yes, Your Honor. Yes, Your Honor. 9:00 a.m.? Let's set it at 9:00. And then the parties should file a joint status report UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 10 of 31 Page ID #:296 10 1 regarding any remaining issues, and that should be filed 10 -- 2 let's make it 7 days prior to the hearing date. 3 So may I have that date from the clerk. 4 5 THE COURTROOM DEPUTY: Yes, Your Honor. That would be Friday, March the 3rd, 2017. 6 THE COURT: The status conference report -- joint 7 status conference report filed on or before March 3rd, 2017, by 8 12:00 our time, 12:00 noon. 9 three pages. And it should be no longer than And then the hearing is to take place March 10th. 10 And the Court, pursuant to agreement of parties, would dissolve 11 the TRO this date. 12 Anything further? 13 MR. BIBRING: 14 THE COURT: 15 16 No, Your Honor. Okay. We move to CV 17-706, Azad versus Donald Trump, et al., Azad, et al., and then Trump, et al. And this is also -- the operative pleading that remains is 17 a First Amendment petition for writ of habeas corpus and a 18 complaint for dec and injunctive relief. 19 all of the issues have been resolved in reference to the habeas 20 matters concerning the individual petitioner plaintiffs, and 21 what remains is the issue involving the organizational 22 plaintiffs. 23 24 25 As I understand it, Am I correct? MS. WONG: Your Honor, as Mr. Bibring just indicated about our client in the other matter -- UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 11 of 31 Page ID #:297 11 1 THE COURT: 2 MS. WONG: 3 4 May I have your appearance again? Adrienna Wong for the plaintiffs, Your Honor. Ms. Yazdi, who was petitioner in the first complaint filed 5 or first petition filed is still experiencing a restraint on 6 her liberty related to her earlier confinement. 7 THE COURT: 8 MS. WONG: 9 A restraint on her ability to travel, Your Honor. 10 11 What restraint? THE COURT: If you could be a little bit more specific. 12 MS. WONG: Of course, Your Honor. Ms. Yazdi is a 13 lawful permanent resident, and as such, she should be able to 14 leave the country and come back in without incident. 15 now fearful that if she attempts to do so, as she has been 16 planning to do because she has family overseas, that she will, 17 once again, be detained or denied entry upon re-entry. 18 THE COURT: She is Is there any indication from the 19 Government that will occur? 20 would have in light of what occurred, but is there a likelihood 21 that that is going to happen? 22 I understand the fear that one Maybe I should hear from counsel for the Government. 23 MR. WARD: No, Your Honor. And I believe actually 24 that Ms. Yazdi has already been dismissed as a party to this 25 action. When plaintiffs amended their complaint, they replaced UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 12 of 31 Page ID #:298 12 1 their original two petitioners, who were LPRs, with a new group 2 of petitioners. 3 terminated as a party to the suit. 4 evidence that Ms. Yazdi will face any restrictions on her 5 travel or any difficulties if she returns from abroad. 6 executive order -- there's since been guidance that the 7 executive order doesn't apply to lawful permanent residents. 8 There's no evidence that it's currently being applied to lawful 9 permanent residents. 10 And by the Court's order, she has already been In addition, there's no The When petitioners amended their petition and notified the 11 Court that all of their petitioners in their first petition had 12 been released, essentially conceding that the claims of their 13 first two petitioners were moot, that was before the 14 White House guidance came out. 15 arrived in the days immediately following when the executive 16 order was signed, was able -- I understand there was some 17 delays that first weekend, but was able to come into the 18 country. 19 be any problems if she tries to do so again. 20 She was admitted. THE COURT: Ms. Yazdi was, even though she And we don't anticipate there will Yeah, I think counsel is right, that 21 Yazdi -- the matter involving Yazdi has been previously 22 dismissed, along with Farmad. 23 or individuals that -- well, the persons that remain are Azad, 24 Alsaeedi and Wahed. 25 MS. WONG: And the three remaining persons Yes, Your Honor. We acknowledge that UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 13 of 31 Page ID #:299 13 1 Ms. Yazdi is not included in the operative pleading. 2 understanding -- 3 THE COURT: I'm sorry, go ahead. 4 MS. WONG: Excuse me, Your Honor. 5 THE COURT: 6 MS. WONG: Our Go ahead. Our understanding, she was dismissed 7 without prejudice. 8 affected by the executive order, so we would still seek to 9 amend, if we are not able to reach an agreement with the 10 11 It is our understanding she is still being Government, that addresses her concerns. THE COURT: Okay. So I guess she was dismissed 12 without prejudice, and you would have the opportunity to file a 13 new pleading or an amended complaint. 14 15 In reference to the organizational plaintiffs, what's the status there? 16 MS. WONG: 17 still have standing. 18 in order to respond to the chaos that has resulted from the 19 executive order. 20 responding to calls from very worried people who are traveling 21 to the country. 22 Your Honor, our organizational plaintiffs Their resources are still being diverted They are still at LAX. THE COURT: I'm not sure, what specifically are the 23 organizational plaintiffs requesting? 24 seeking from the Court? 25 MS. WONG: They are still What remedy are they The same remedy that we have asked from UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 14 of 31 Page ID #:300 14 1 the Court in the amended petition. 2 executive order not to apply to the populations that they 3 serve. 4 5 6 THE COURT: requesting. We are asking for the I don't understand precisely what you're So maybe be very specific regarding that. MS. WONG: Of course, Your Honor. We are asking, 7 first of all, for access to counsel not to be denied, 8 especially in those instances where Customs and Border 9 Protection are attempting to have people sign away or 10 relinquish their legal status. 11 request that the Government be enjoined from denying entry or 12 detaining -- removing the populations, again, that our 13 plaintiffs serve. 14 THE COURT: There is also the more basic I'm focused on the organizational 15 plaintiffs right now, and the specific remedy that you're 16 seeking is access. 17 mean in terms of how the -- assuming there's an order issued by 18 the Court, how would it read? 19 I understand access, but what does that MS. WONG: I think it could read, Your Honor, that 20 the defendants would be enjoined from actions preventing 21 individuals from the targeted seven countries from contacting 22 their counsel in instances where they have been approached to 23 relinquish their legal status. 24 25 THE COURT: Has -- are there instances where a person has asked for counsel and the request has been denied? UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 15 of 31 Page ID #:301 15 1 Is that the claim? 2 MS. WONG: Yes, Your Honor. I believe the 3 declarations that we have submitted that are in the record 4 describe that. 5 of phone calls and the like. 6 They describe confiscation of phones or denial THE COURT: So if the order would read -- the 7 proposed order would read that if someone is detained pursuant 8 to the executive -- to the executive order, and if they were 9 requesting counsel, then they should be provided counsel? 10 MS. WONG: 11 THE COURT: 12 MS. WONG: 13 THE COURT: 15 MS. WONG: 16 THE COURT: 18 Are you asking for more than that? In -- with respect to access to counsel, Your Honor? 14 17 Yes, Your Honor. Yes. No, Your Honor. The Government wish to be heard in reference to this issue to access to counsel? MR. WARD: Yes, Your Honor. There still doesn't 19 seem to be any individuals associated with this complaint that 20 the organizational plaintiffs are seeking to access. 21 say in their filings, they haven't recently received reports of 22 being detained or denied access or denied entry at LAX. 23 As they All of their petitioners in both petitions, even though 24 they came in under different statuses, were able to be admitted 25 into the country. So to the extent they are arguing standing UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 16 of 31 Page ID #:302 16 1 based on access to these individuals who are going through the 2 screening process when they arrive at LAX, it's not clear who 3 those individuals are. 4 They haven't identified them. In addition, there's no right for people who are coming, 5 arriving at LAX and who are going through screening, to have 6 access to counsel. 7 circumstances under which someone who is going through a normal 8 screening process to have a right to counsel is when they were 9 taken into custody as part of a criminal investigation. 10 That's designated by statute. The only But other than that, the Ninth Circuit has held that 11 people in that situation, when they are going through first 12 screening and even secondary screening, aren't considered to be 13 in custody, and they don't have right to access to counsel in 14 that circumstance. 15 THE COURT: Well, I think the merits of the 16 organizational claims here has to be addressed at a later date. 17 But are the parties trying to resolve this issue? 18 Government doing in reference to the 706 case? 19 MR. WARD: What is the It's not clear that there's anything to 20 resolve here, Your Honor. It's not clear to the Government who 21 exactly the organizational plaintiffs are trying to gain access 22 to. 23 been denied entry. 24 have been admitted to the country. 25 based on the pleadings or the alleged injury that they raise, There's no one in their pleading who is detained or has All of those people, as far as I'm aware, So it's not clear that, UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 17 of 31 Page ID #:303 17 1 that there's any relief the Court would grant to the parties to 2 be received. 3 THE COURT: It appears that the parties', the 4 organizational plaintiffs here, request here is broader than 5 simply the individual named plaintiffs, petitioners, and they 6 simply would like access to persons arriving at the airport who 7 would like to have counsel or talk to counsel if they're 8 detained because of immigration issues or admission issues -- 9 MR. WARD: 10 11 12 13 14 But -- THE COURT: -- from my understanding what the claim is. MR. WARD: -- they haven't identified who those individuals are, and so -THE COURT: Why shouldn't the Court dissolve the TRO 15 as to the individual plaintiff petitioners? 16 wish to file an amended pleading in reference to the 17 organizational plaintiffs, you would be allowed to, and then we 18 can -- you would file an amended pleading, state your claim, 19 and then the Government would have an opportunity to answer or 20 respond and then go ahead with a briefing schedule. 21 22 MR. WARD: Your Honor, I don't believe there's a TRO in place or a request for a TRO in this case. 23 THE COURT: In this case? 24 MS. WONG: Yes, Your Honor. 25 And then if you We withdrew the request for a TRO in this case. UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 18 of 31 Page ID #:304 18 1 THE COURT: Then that has been resolved. 2 you propose? 3 reference to the organizational plaintiffs? 4 So what do Are you going to file an amended pleading in MS. WONG: Your Honor, we would request that you 5 hold this case in abeyance. 6 potential to affect the interests of our plaintiffs. 7 the case that the Washington case resolves in a manner that 8 does not protect the interests of our plaintiffs because that's 9 unclear right now. 10 The Washington case has the It may be We would just ask that the Court hold the case. 11 THE COURT: What do you mean hold it in abeyance? 12 MS. WONG: We would request that the Court continue 13 all proceedings until the Washington case resolves. 14 THE COURT: 15 MR. WARD: 16 Okay. Your Honor, this isn't a matter of prudential standing here. 17 THE COURT: 18 MR. WARD: Government? We are talking about -- What's your request? My request is that the case be dismissed. 19 If the organizational plaintiffs are in a situation where they 20 cannot identify a live case or controversy involving 21 individuals who they are seeking access to, then they can file 22 that as a separate case. 23 individual plaintiffs are detained or have been denied entry, 24 they haven't identified other individuals who fall into that 25 category. But this case, because none of their There's no reason to hold this case open based on UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 19 of 31 Page ID #:305 19 1 2 speculation that something could change in the future. Once -- when all petitioners are dismissed over the course 3 of a case, the Court no longer has jurisdiction and should 4 dismiss the case. 5 should be held in abeyance to allow plaintiffs find other 6 petitioners or identify other claims. 7 sounds like it would be a separate suit. 8 9 10 I'm not aware of any rule that says the case THE COURT: That, to the Government, So there is a first amended petition for writ of habeas corpus, and that should be dismissed as to the individuals; is that correct? 11 MR. WARD: 12 THE COURT: Yes, Your Honor. And then we still have the 13 organizational plaintiffs, and the Government is moving to 14 dismiss the organizational plaintiffs? 15 MR. WARD: Yes, Your Honor. We believe that the 16 organizational plaintiffs haven't identified an injury to 17 support standing or support their claims. 18 THE COURT: So do you wish an opportunity to bring 19 that motion to dismiss? 20 schedule? 21 MR. WARD: 22 THE COURT: Should the Court set a briefing We would be happy to brief that. I think that's the way -- the oral 23 application to dismiss today would be denied, and I think the 24 parties should be given an opportunity to address the issues on 25 the merits. UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 20 of 31 Page ID #:306 20 1 2 3 4 MR. WARD: Yes, Your Honor. We would be happy to brief that. THE COURT: So have you worked out a proposed schedule for this? 5 MR. WARD: 6 THE COURT: We have not. Why don't you discuss a proposed 7 briefing schedule. And the first amended petition for writ of 8 habeas corpus should be dismissed today, and then the remaining 9 matters with the organizational plaintiffs should be addressed, 10 I think, formally on the pleadings and then pursuant to a 11 briefing schedule. 12 MR. WARD: Yes, Your Honor. 13 MS. WONG: Thank you, Your Honor. 14 THE COURT: 15 16 17 18 19 Thank you. And then just discuss how that should work, and then we can come back to this. And then we have 786; Mohammed, et al., versus Donald Trump, et al. So this is a little bit more complex of a case. So I 20 think in light of what has occurred in the Washington matter 21 and with the Ninth Circuit, the Court would be looking for a 22 way to put a pause on this matter here, and I'm looking at 23 counsel as to what you would suggest. 24 25 MR. GO: Yes, Your Honor. The parties actually have been engaged in some settlement discussions to see if we can UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 21 of 31 Page ID #:307 21 1 reach a mutual resolution of this TRO issue. 2 something, but I do need to talk with my agency clients. 3 THE COURT: 4 MR. GO: 5 6 I believe we have May I have your appearance? Sorry. Samuel Go on behalf of the Government. Your Honor, we believe we may have a potential resolution, 7 but I do need to talk with my agency clients to make sure that 8 this can go through. 9 see where they are at with regards to this potential 10 settlement. 11 12 I would like to ask for a few minutes to THE COURT: clients? 13 Is that it? MR. GO: I have communicated the proposal, and I'm 14 waiting to hear back. 15 THE COURT: 16 MR. GO: 17 THE COURT: 18 MR. GO: 19 THE COURT: 20 So when do you expect to hear back? So you just need an opportunity to talk to them again? 22 THE COURT: 25 In D.C.? They might have already responded already. MR. GO: 24 Where are the agencies? Yes. 21 23 Are you on the phone with the agency Yes. Then what have you proposed to the agency? MR. GO: Your Honor, basically a brief extension, and then if some conditions are satisfied, then dissolution. UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 22 of 31 Page ID #:308 22 1 THE COURT: 2 MS. GOLDBERG: 3 THE COURT: 4 An extension of the TRO? When you say "brief," approximately 14 days or so? 5 MR. GO: 6 MS. GOLDBERG: 7 Approximately till next Tuesday, I believe. Well, I guess the question would be it will remain. 8 THE COURT: 9 MS. GOLDBERG: 10 Yes, Your Honor. May I have your appearance? I apologize, Your Honor. Julie Goldberg for the plaintiffs. 11 THE COURT: Yes. 12 MS. GOLDBERG: I think it's going to depend exactly 13 on the specifics of the settlement because I think the TRO 14 might remain for some specified plaintiffs. 15 that is going to depend on the settlement. 16 point, until we work out the specifics, we would just need a 17 continuance of the TRO until, let's say, latest Wednesday, so 18 we at least have 3 business days to resolve. 19 THE COURT: Okay. So I think part of But I think at this So you would propose just 20 stipulating to extending the TRO for approximately 7 to 10 21 days? 22 MS. GOLDBERG: 23 THE COURT: 24 MR. GO: 25 I would, Your Honor, yes. Is that -- Yeah, Your Honor. Of course the Government would like to just extend as short as possible, but in order to UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 23 of 31 Page ID #:309 23 1 make sure we can do what we tried to agree upon. 2 THE COURT: So it would be 7 to 10 days. 3 what would happen after that? 4 back in this Court? 5 MR. GO: 6 my agency clients. Should I set a status conference Or what's the next event date? Your Honor, this is still all contingent on 7 THE COURT: 8 MR. GO: 9 And then I recognize that. I guess the way that would work, you know, hypothetically we could extend the TRO until next Tuesday or 10 Wednesday, if my client approves, and then I believe we could 11 set a status conference either at that time or later to update 12 you on what has happened since. 13 THE COURT: 14 conference next week? 15 So you're proposing the status Am I hearing you correctly? MS. GOLDBERG: Your Honor, could I ask that we do it 16 telephonically? 17 will be flying back there to hopefully resolve some of these 18 issues. 19 do it telephonically, I would be very appreciative. 20 I'm actually over in Africa in Djibouti, so I So whenever we set the status conference, if we could THE COURT: Yes. I think if you're going to be 21 across the world there, we will have to see if we can 22 accommodate that. 23 Let me give you a further opportunity to discuss this. 24 You can have additional conversations with the agency clients, 25 and then we will take a short recess. And when I return, we UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 24 of 31 Page ID #:310 24 1 will discuss the scheduling -- the briefing schedule for 706, 2 and then we will see what the resolution is on the 786 matter. 3 So we will take -- 4 MS. GOLDBERG: 5 THE COURT: 6 you enough time? MR. GO: 8 THE COURT: 10 11 12 13 14 15 We will take a -- does 20 minutes give 15 minutes? 7 9 Thank you. I think so, Your Honor. Let's return back to the courtroom at 11:00. THE COURTROOM DEPUTY: The Court's in recess. (Recess taken from 10:38 a.m. to 11:06 a.m.) THE COURT: We are back on the record. We have two matters to resolve, the 706, Azad versus Trump, and we have counsel present. And so I was informed the lawyers were considering a 16 dismissal without prejudice, but that may have changed; that 17 proposal may have changed. 18 19 What are you requesting the Court to do? MS. WONG: Yes, Your Honor, we would like to have 20 the opportunity to speak to our clients first. 21 be possible to submit a status report or a briefing schedule in 22 7 days, that would be our request. 23 THE COURT: 24 MR. WARD: 25 THE COURT: So if it would Is that agreeable? Yes, that's agreeable to the Government. So the case will be set for a status UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 25 of 31 Page ID #:311 25 1 conference, and counsel will appear in 7 days? 2 proposal? 3 MR. WARD: No, Your Honor. Is that the We ask for 7 days to 4 discuss whether we can reach a stipulation to dismiss this, and 5 in the event we can't, submit to the Court a joint briefing 6 schedule in 7 days on the Government's motion to dismiss the 7 organizational plaintiffs. 8 THE COURT: 9 THE COURTROOM DEPUTY: 10 11 next Friday. Okay. Then let's have a 7-day date. Your Honor, that would be That's Friday, the 17th, February the 17th. THE COURT: Okay. On or before February 17th the 12 parties are ordered to file with this Court a stipulation 13 requesting dismissal without prejudice. 14 reach agreement on the stipulation without prejudice, then on 15 that date or before, the parties are to submit a proposed 16 briefing schedule. If you're not able to 17 Regarding the complaint that remains, is there an 18 intention on the part of counsel for the plaintiffs to amend 19 the current complaint or not? 20 MS. WONG: Again, Your Honor, that's something we 21 would like to consult with our clients about, and, if 22 necessary, we will address that in the same status report. 23 THE COURT: Okay. So in that status report, the 24 parties are to propose a scheduling order regarding either an 25 amendment to the complaint or an amended complaint, with the UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 26 of 31 Page ID #:312 26 1 defendants then having an opportunity to dismiss or otherwise 2 respond. 3 be amended, that you do it within 10 days from the 17th, and 4 then a motion to dismiss or response would be due 10 days 5 thereafter. And I would propose that if the complaint is going to 6 Does that work? 7 MS. WONG: 8 THE COURT: 9 MR. WARD: 11 THE COURT: 15 Yes, Your Honor. That's fine. Okay. And then on 786; Mohammed versus Donald Trump, et al. 13 14 And then we would set -- we would set a hearing date to follow, a date on any motion. 10 12 Thank you, Your Honor. MR. GO: Yes, Your Honor. Samuel Go on behalf of the Government. I believe we do have an agreement to extend the TRO 16 briefly to next Tuesday. 17 has agreed to give us a list of some of the, I guess, 18 plaintiffs or potential plaintiffs to the Government, for us to 19 take a look and review to see if we can kind of adjudicate 20 these -- the matters to these potential petitioners. 21 22 THE COURT: On that Tuesday, plaintiffs' counsel So we extend it to next Tuesday. And then what happens on next Tuesday in reference to the TRO? 23 MR. GO: Your Honor, we would ask for a status 24 conference on Tuesday afternoon to update the Court on the 25 matters. On Tuesday, plaintiffs should be giving us a list. UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 27 of 31 Page ID #:313 27 1 We will be reviewing that list, and we can -- we will either be 2 able to say whether we can do what we have agreed to do or if 3 we need more time to evaluate. 4 THE COURT: So I can set this for a status 5 conference next Tuesday, and appearances would be required, 6 either personally or telephonically. 7 counsel for the plaintiffs who will be, I believe, in Djibouti. 8 9 10 MS. GOLDBERG: I'm concerned that On Tuesday I will still be here. I will be in New York, but I can changed it around to be here in Los Angeles personally. 11 The only thing I would add, Your Honor, is that if we 12 don't have it -- if we need more time to resolve it, we are 13 going to ask that the TRO remain in place until we come to some 14 resolve with the issue. 15 THE COURT: Well, it's not going to remain in place 16 unless there's agreement by counsel for the Government, 17 otherwise the Court will have to address the merits. 18 19 MS. GOLDBERG: Okay. agree or we will probably have to go forward on the merits. 20 THE COURT: 21 precisely what's going to happen. 22 23 So, I mean, we will either So -- well, I'm not sure I understand MS. GOLDBERG: So on Tuesday we are hoping we can say to the Court we have resolved this. 24 THE COURT: Okay. 25 MS. GOLDBERG: Or a second option would be that we UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 28 of 31 Page ID #:314 28 1 need more time and that both parties have agreed to extend the 2 TRO until we can, in fact, resolve it. 3 4 MR. GO: Would that -- That is a possibility. Again, I would have to -- 5 MS. GOLDBERG: The question is if we can't resolve 6 it, then we would need a hearing to argue the merits of the 7 TRO. 8 THE COURT: 9 MR. GO: And counsel for the Government agrees? Your Honor, obviously we can't agree to any 10 extension of the TRO. 11 believe that's probably the process that this would take. 12 Either come Tuesday we need more time -- we can potentially 13 reach an agreement. 14 guess we will have to have a hearing. 15 16 We can agree up till Tuesday, but I If we don't reach an agreement, then I THE COURT: Okay. What happens to the TRO on Tuesday if you have not reached an agreement? 17 MS. GOLDBERG: Is it dissolved? That would not be my understanding. 18 My understanding is until we can have a hearing, it would 19 remain in place. 20 THE COURT: 21 MR. GO: So -- Your Honor, obviously we would disagree. 22 Our position is that we consent to extending the TRO until next 23 Tuesday. 24 25 THE COURT: Tuesday. So I should set a hearing, then, for It should be set for a status conference. UNITED STATES DISTRICT COURT It would Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 29 of 31 Page ID #:315 29 1 be understood that the TRO would be continued to Tuesday of 2 next week. 3 If it's resolved, no appearances are required. 4 stipulation with the Court proposing dissolving the TRO. 5 it's not resolved, then we will go forward with a hearing on 6 Tuesday. 7 8 On that date, the parties may resolve the issue. MR. GO: If Your Honor, I guess that is okay with the Government. 9 THE COURT: Is that agreeable? 10 MS. GOLDBERG: 11 THE COURT: 12 MS. GOLDBERG: 13 You can file a Yes, Your Honor. Okay. The matter is set -- One more thing, Your Honor. Unless, of course, we stipulate to more time. 14 THE COURT: Yes. If you reach a stipulation to 15 extend the TRO beyond next Tuesday, then that would be 16 agreeable with the Court. 17 to stay -- put a halt to this matter pending the resolution of 18 the matter in Washington and to see how that matter or that 19 case is going to impact the issues here. 20 goal of this Court. 21 to be able to reach a resolution here. So I think the goal here is to try So I think that's the And I'm hopeful that the parties are going 22 Status conference at what time? 23 And appearances would be required if we are going to have 24 25 a hearing. So -THE COURTROOM DEPUTY: They asked for the afternoon, UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 30 of 31 Page ID #:316 30 1 so set it for 2:00 p.m.? 2 THE COURT: 3 THE COURTROOM DEPUTY: 4 THE COURT: 5 6 Okay. 2:00 p.m. The matter is set for status conference further proceedings on Tuesday. What's the date? 7 8 Yes. THE COURTROOM DEPUTY: That's February the 14th, Your Honor. 9 THE COURT: February 14th, 2:00, this courtroom, 10 Courtroom 10C, for further proceedings. 11 the option of entering a stipulation to extend the TRO 12 thereafter. 13 Tuesday. If not, we would go forward on the hearing on next 14 MS. GOLDBERG: 15 THE COURT: 16 MS. GOLDBERG: 17 MR. WARD: 18 THE COURT: 19 MS. GOLDBERG: 20 THE COURT: 21 THE COURTROOM DEPUTY: 22 23 And the parties have Thank you. Anything further? Nothing further from the plaintiffs. Nothing further, Your Honor. Thank you. Thank you. Everything resolved? Yes, Your Honor. Thank you. We are adjourned. The Court is in recess. (Proceedings concluded at 11:15 a.m.) ---oOo--- 24 25 UNITED STATES DISTRICT COURT Case 2:17-cv-00706-SJO-GJS Document 33 Filed 02/17/17 Page 31 of 31 Page ID #:317 31 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 COUNTY OF LOS ANGELES 4 STATE OF CALIFORNIA ) ) ) 5 6 I, CAROL JEAN ZURBORG, Federal Official Realtime 7 Court Reporter, in and for the United States District Court for 8 the Central District of California, do hereby certify that 9 pursuant to Section 753, Title 28, United States Code that the 10 foregoing is a true and correct transcript of the 11 stenographically reported proceedings held in the 12 above-entitled matter and that the transcript page format is in 13 conformance with the regulations of the judicial conference of 14 the United States. 15 16 Date: February 13, 2017 17 18 19 20 /s/ CAROL JEAN ZURBORG CAROL JEAN ZURBORG, CSR NO. 7921, CCRR, RMR Federal Official Court Reporter 21 22 23 24 25 UNITED STATES DISTRICT COURT