and this is whenever you're ready we'll hear from you take your time thank you and may it please the court paul hughes for petitioner cressman section twelve twenty six not section twelve thirty one gov governs petitioners detention i'd like to begin with three initial points first per the plain text of the statutes the statutes turn on whether the government has actual authority to remove the individual from the united states correct about this case and we think one of the fundamental issues is the statutory construction which is what's the dividing line that dividing line we submit is that twelve twenty six applies before the government has final authority to remove actual authority to remove section twelve adjudicated the ninth circuit's asked for the government's response they received about a month ago and the ninth circuit is yet to rule on that so that is still outstanding but second the fundamental problem with the ninth circuit's decision is it turned on this view that the  individuals in these circumstances don't fall within twelve twenty six because it said the decision as to whether or not they are to be removed has already been made that's just simply inaccurate individuals in these circumstances the very proceedings are educating whether or not they will be removed the ninth circuit look to the possibility that there could be other what but that that's precisely the issue your honor in order to say that the government has authority to remove an individual the government must identify the country to which the government seeks to remove the individual and then go through the process at page forty five of the government's brief let's get more fundamental i mean it's  you look at twelve twenty six and to relate it to the criminal structure it looks like it's detention tension pending a hearing on determining whether the person is going to be removed it says arrest detention and release and it says the arrest and detain pending a decision on whether the end is to be removed the united states so that sounds like pretrial detention twenty six just going there now we can go to the details twelve thirty one says just the opposite after there has been a final administratively final order removal then they can be changed under twelve thirty one it's post detention post trial detention now that's the generality of it this case is complicated of course there was a final removal order he was removed the order was executed and then he came back and the removal order was quite simple the structure turns on does the government have actual authority to remove this individual that's confirmed by the text of all the while the words text without that how does that lead to anything other words there has been a final order to remove all originally right question of whether they have authority he has he's subject to a final order of removed right now but no you are there is a very substantial question as to whether or not there is authority to remove because for authority to remove the government actually has to have a particular country to which they can remove the individual and if i can focus on twelve thirty one that might help you or you sort of just bypassing blowing out the fact that there's a final order removal in place with no you know why is there any question about the government actual authority to remove and that's clear in the text of the statute section twelve thirty one a one a explains that during the removal period the attorney general shall remove the individual and it provides a ninety day period because that's the period that congress thought in normal circumstances sometimes it takes longer in normal circumstances to do the procedural steps of things like obtaining travel documents and arranging for travel section twelve thirty one a one b provides the triggering events that all go to actual  remove the kinds of things that the government needs in order to put somebody on a plane to physically remove them from the united states as we pointed out in the briefing the regulations describe that during the quote unquote removal period the government has certain obligations like trying to obtain travel documents from the country to which the individual is to be removed during the removal period the government's not undertaking those obligations in this case simply because the government doesn't have actual authority to remove the individual anywhere so until the government has authority to remove the individual to some other country outside the united states the individual is in the united states and the individual is pending quote unquote a determination on whether the individual has to be quote to be removed to handle the statutory vision that says act of the provide a right to defer all of these individuals that's the fundamental problem of the government's argument is that it would undermine what the supreme court has said is a right for these individuals to have to for all of removal notwithstanding section twelve thirty one  and what the agency has said is there is a quote unquote a reinstatement process the reinstatement process begins with the reinstatement of the underlying order of removal but that process is not final until the withholding only proceedings conclude so in the majority of cases and i can explain from the statistics if useful we think it's about ninety eight percent of cases there is no withholding request in the majority of those cases though the order will be final immediately and the individual be subject to section twelve thirty one but in the two percent or so of cases that are the exception which is our case there is a longer reinstatement process and the process is not final intil the order concludes were confusing some terms here because the order of removal has to be administratively final the order of removal is administratively final in this case it cannot be reviewed there what can happen is that under the convention against torture  he can be sent to some other country based on criteria set forth there but the statute makes very clear that he and he had a final order to remove all that is reinstated i mean that was a final judgment so to speak and he came back in the final judgment is reinstated and it is administratively final and eighty five says that is not subject to being reopened or reviewed that's pretty strong and so that is administratively final now what happens here after is based on the convention against torture statute and to take into account those issues which is persecution and so forth but that doesn't get you back into twelve twenty six which is pre order remove the attention ninety eight percent of the cases where there is no withholding only proceedings i removal but you know there was a new removal order in this context that appears at page j twenty one because this is not a typical situation it went to an immigration judge ninety eight percent of reinstate cases don't go to an immigration judge two percent d went to an immigration judge in a j twenty one the court entered a new order of removal i understand your argument to me your basic argument is that he's got some more process based on the convention against torture but that does not affect the government's contention is that the very same proceeding this withholding only proceeding is final now for purposes of detention but the exact same proceeding is not final until after withholding only proceeding ends and our it makes little sense to say that the very same proceeding is final for purposes of detention yet non final for purposes of administrative review the government has conceded that its non final for purposes of judicial review under section two hundred fifty two the bound to that concession because holding otherwise would undermine the statutes would would bring constitutional problems and it's contrary to what the government has said time and time again in a variety of cases if the government also were correct that opens an enormous gap under section twelve thirty one a one b because the triggering events that hold off that the removal period are specifically designed such that first it's until the proceeding is administratively final once it's administratively final then in order to hold to stave off removal period jurisdiction transfers to this court for this court to be able to enter a stay so the twelve fifty two and twelve thirty one work hand in glove necessarily by the triggering events that are contained in section twelve thirty one and the one triggering event is designed to follow the other pursuant to the government's argument there would be an enormous gap between when the agency acts this court would not have jurisdiction on the execution of the order yes your honor well because we believe that's the proper understanding of what twelve twenty six and twelve thirty one statute focuses on the order itself but your honor i don't think it's possible to say that mr crespin are those like them is an individual who is quote unquote to be removed from the united states when the whole proceeding is ongoing will  of final order that we cannot review what does it say your honor the what is what is transpiring now is effectively i think withholding only is one way to think of it as effectively as a stay of the order so there is an order that says you know he is removable but the proceedings now are can the government execute that order the withholding only would operate as a stay which would bar the government from executing that order our fundamental position the way the statutes operate is not the finality of the order determines we're not back in other words it's not subject open and so that we're not create order tension under twelve twenty six we're under twelve thirty one which and it becomes it talks about order removeable comes administratively fine but you know i don't think it makes any sense to say his removal period has begun when the government can't remove him they can't do the things that the removal period they're obligated by regulation to do there may be some other statute like c a t which trumps it but that doesn't change the statute for purposes of detention but i think it should significant light on what is the finality that's an issue between section twelve thirty one and twelve twenty six or leave its actual thirty remove thank you robert and we got your back you got six minutes for the government in two thousand and sixteen cross has been and a must thirteen gang member and twice convicted felon illegally reentered the united states despite that the government had just completed the lengthy burdensome and expensive process of removing him just two years prior and now he asks this court to treat his detention the same as someone who has never been removed and who may not be removable at all to do so is not only unfair it's unsupported by the statute and the clear congressional intent behind it his arguments essentially put the cart before the horse but i suggesting that what statute he is detained under should be determined by his due process right to be free from indefinite detention but he fails to show how the current system of savita us relief is ineffective to protect those due process rights instead the narrow all times he remains removeable but as a matter of diplomatic and constitution and convention against torture duties the government will not for practical reasons remove him to el salvador however it retains authority at the moment to in fact remove him to a third country or to any he is removable at this point as we speak to any other number of countries to which he may not have any ties let alone a reasonable fear of returning to so he the only issue the singular issue that is pending right now is whether under the convention against torture he's removable to el salvador if he's not removable to el salvador the statue actually commands d h us to move remove him somewhere else well there's a number of things that the government believes are in error in the garrett decision first it relies on cases that found that withholding only proceedings render the underlying removal order non final for purposes of judicial review now this circuit in may he found that the underlying removal order for an alien just like kreskin was in withholding only proceedings subject to a reinstated order and the court there found that the underlying removal order retained its finality from the original date for purposes of petitioning for review from that underlying removal order so here in order to find that he was detained under twelve twenty six this court would have to  but that that final removal order retained its judicial review finality for purposes of the underlying claim from the original date but even in the ninth circuit where ortiz pharo holds that final removal order is non final in withholding only per proceedings for judicial review purposes the reason that they held that is because for practical purposes there is a concern that is not present here that if it were considered final the alien would not be able to file for judicial review of that of the withholding only decision it would foreclose judicial review of the narrow country specific relief legal right to remain in the united states and that decision can never again be reviewed by any court so that issue on whether he is to be removed has decidedly been made and even the statute can command cracked and even if he were to continue to claim protection under the convention against torture and he became indefinitely prolonged it tensioned he would be no different than the aliens in  john who were all held to be detained under twelve thirty one and at that point if this continued and his due process rights became a concern he would have the ability to file for his b s relief and say the government is not going to remove me in a significant likely it's not significant like significantly likely in the reasonably foreseeable future so therefore i should be released under  rights and even the statute to the extent he quotes the process for removing somebody to the extent he argues that because we haven't begun this the period hasn't begun it makes no practical sense for the government to start that procedure while withholding proceedings are ongoing but that doesn't mean that the removal period hasn't begun and so  you are correct however execute ability and remove ability and legal authority to remove are two separate issues  ability to petition for a review from a withholding decision because those concerns are in a political in a detention context i think that this court should do as video ramirez did and distinguish those those two things  ramirez i think persuasively note that much of the analysis and kara had to do with comparing asylum only proceedings with withholding only proceedings however that is sort imprecise comparison because asylum only is something that happens in an alien's first round of removal proceedings and i believe in me here this court recognized that congress had an intent in twelve thirty one a five to treat the difference is because the entire intent in acting the reinstatement provisions which i would know is located within the post detention order statute the entire purpose was to  to enact an expedited removal process to people for people who have already been through this if the court were to find that he is now similarly situated to people who have never been ordered removed then what would be the purpose of of that expedited removal process to begin with rather i would submit that the narrow country or specific relief of withholding only does not affect the fact that they are still subject to these expedited removal proceedings is not supposed to happen here in reinstatement cases there is already a final removal order to withhold but if you are an alien that's going through the first round removal proceedings you can apply for asylum withholding and cat relief and in that process exactly and while in a not and in those cases where you're never been ordered removed before in your in your first round of removal proceedings the doesn't have to enter an order of removal first in order to grant you withholding because there has to be a removal order to withhold but in withholding only the final reinstated order is the final order that will always be the final order  mean unfortunately in my ten years of working for the government i have only practiced immigration law and so this is the only area that i'm familiar with your honor no not another and i know any other areas of immigration laws and i aware that we separate however i think there's really good reason to separate and i think would point to just that congressional intent that did for detention purposes this class of illegal honor i don't i believe that the opposite is true i believe that if it were a ambiguous that the court has to give deference to the government's reasonable interpretations of its own sachi of  but if it were ambiguous that the government's regulations up to forty eight point one would be should be accorded deference you know what percentage of the time we were able i'm different treaties and interacting with different countries and i'm not sure how often that actually happens is a matter of as a matter of law how often one removal the us third party country  claim and then be removed to a third party country i believe that is a a rare occurrence but i don't think that that changes the issue that under the law and under the statute they are removable and have been ordered removed and will never be correct that it would probably be difficult given his criminal history to get a third party country to agree to take him but it was a myth that that's not the issue because even in john where his own country he aliens were still detained under twelve thirty one it didn't change the legal authority we had to detain  final removal order is executable will be executed to where it gets executed does not determine what statute he was detained under the only thing that should dictate what statute used to turn detained under is whether the order administratively final and i think the statute is clear when it says that there's no review and there's no further relief that that's an administrative leave final order not just to play this out as a matter of past release them at that point at six point six months he would have exactly the presumption against reason of reasonable pnas for the government will have ended and there's a fairly likely chance cases is before the board of immigration appeals so it has it went back to the immigration judge and now it has gone to the board of immigration appeals and it has been fully briefed last time the  took only four months to decide so it's now pending before the board on that narrow issue of removal to el salvador so the government would argue that u that the fact that it is now gone up to the board yet again and is on appeal fully briefed would would lend towards finding that it is it is likely in the reasonably foreseeable future that that issue that that issue will be  fast and even if you were not as fast as you normally are he would be in tight if he could show that there wasn't a reasonably likely removal on the first seeable future he would be entitled to at least and if or interestingly the first time that he was deported it was due to a criminal cocaine conviction under twelve twenty six c so he had no eligibility for a bond hearing so in essence if you were to hold that he's preorder twelve twenty six a he would gaining more rights to be free from detention then he had in his original removal proceedings by virtue of leaving and coming straight back in and in addition he never he never applied for withholding of removal he had an opportunity to challenge his removal in the first round of removal proceedings he never applied for withholding of removal he simply accepted the judge's order left and came right back and so i think congress has been clear that those types of illegal are not subject to prefund orders so i would also just like to clarify a few points again there is no new removal order in withholding only proceedings there is no need to amend a prior order in fact the step the regulations actually make clear that the removal order although it contains a specific country does not limit th us from executing it to a third country and so also the regulation that  statute he's detained under or give him or relief to be free from detention yes so for in many of these cases the court should decline to conflate authority to execute with authority to thank you roger the distinction between twelve twenty six and twelve thirty one turns on actual authority to execute the removal order now as the government just discussed they don't currently have a you can say that you can argue that but you can't state that's what the statute says but i believe you are that's our fundamental interpretation and if we're right about that then we win this case of a wrong about that we have a harder time i agree with that but i think the proper interpretation of twelve to twenty six and twelve thirty one that there are a few reasons first until the government can execute the order of removal it makes no sense to describe one as being somebody who is quote unquote to be removed you take this if you really want to get a very good analogy and it's that's and apropos i believe you can look in the civil rules you can get a final judgment and it'll be final and unappealable then you have execution of the judgment and somebody can object you can't execute against this house because it happens to be owned by not only the defendant but the third party and so you can object to that and you can have a whole proceeding but that doesn't affect the finality of the judgment we're talking about the execution of the judgment here and the judgment says he goes to el salvador you can come in by reason of a separate statute and say he doesn't go down salvador he wants to go somewhere else and that's what you're doing now but that doesn't change the final judgment that removed him but a few things about that you honor first twelve twenty six does not talk about in terms of judgments it talks about the actual i was giving you an analogy i'm sure you know but just about these statutes twelve twenty six doesn't talk about judgments of talks about people who are in reality to be removed or not to be removed mr cressman is not somebody who has to be removed until the government has authority to execute that removal order the government in knowledge is that they lack that authority and if you prevails in withholding only the government says it's rare they ever will have that authority now trying to section twelve thirty one twelve thirty one also describes the detention that kind of detention applies during the removal period congress in vision that it would typically last no more than ninety days because that's the period of time that congress invision that the agency needed to actually complete the physical process of removal obtaining the travel documents obtaining travel arrangements doing those physical things that was as judgement noted the purpose of twelve thirty one without a bond hearing is because those individuals are in in the process of being physically removed from the united states that's why there is no bond hearing requirement is the same reason in the criminal pretrial detention the person has not been convicted and so we have a higher standard for detaining him he has to get bond in a bunch of circumstance once he's convicted all those criteria change now it's harder to get a bond to get out because he's been convicted this gentleman has been removed by a final order that's not review and so now he is no he is a higher risk and therefore not i'm not a twelve thirty one which doesn't have a bond provision kicks in if you give him a bond provision that treatment the same as every cre a few things i mean i don't think that allergies directly are because we're looking to a statutory tax but second if there's any of it but it's also pending removal or well you are also if there is any view that there is a higher risk with this individual given his circumstance that's something that's taken into account in the individualized bond hearing by the immigration judge immigration judge aslanian i'm explaining to you giving you a pretty clear analogy as to why there's a bond provision in twelve twenty six and not in twelve thirty one i  think your honor the sensible reading of the statute because of the ninety day limitation period also because the statute says on its face that's the period during which the government shall remove the individual that it's designed for the period when the individual is actually going to be taken out of the country that does not apply now because the government as it conceives does not have authority to actually take this person out of the united states now in ninety eight percent of reinstatement cases of we said that won't be the case that's why twelve thirty one a five is located in section twelve thirty one in the normal case the government does have immediate authority so section twelve thirty one detention without the ability for bond hearing would apply in the exceptional case where that's not the case where the proceedings are to precisely determine whether or not individual is quote to be removed from the united states that national reading is that section twelve twenty six applies not section twelve thirty one section twelve thirty one deals with something else entirely it also as we've said makes no sense from a statutory perspective so if you this is the very same proceeding as final for one purpose for appeal but final for different per for purposes of detention and we think of the best way i understand finality is that reinstatement is a process in most cases that process is final very quickly but in the exception when there is a reinstatement process according to the regulations that process takes a longer period of time it is not final until after the withholding only proceedings conclude and then finally as to the reinstatement as to the removal order that's actually relevant in this case the immigration judge did issue a new order for move all that such a twenty one that was never reversed by the b i hey that is the basis on which this individual would be removed if he is removed from the united states not the underlying reinstated order under twelve three one hundred five that's because again in this two percent of cases a different procedure accords and there's a new order of removal that is at issue that's issued by the i j a that's exactly what happened it's never been reversed it makes sense to conclude that that is final when withholding only  order issued by d h s officer but again in as i said ninety percent of cases that would be the end of the story in two percent of cases when there's withholding only that's not the end of story and that's the case we have here going to the applicability of these things as to how many people fit into categories i'm trying to find out the fact of the matter and in this case you're saying there was a previous order to remove was reinstated yesterday but as the regulations described there is a reinstatement process and that process when there's withholding only proceeding is not