good morning honors and may please the court david manning for flour fry hot and his he is a pill challenging legal and constitutional errors in the i j a the immigration judges denial of release on bond and i do intend to reserve for minutes for about oh i understand that's on me try to help you keep your eye on the clock thank you honor the evidence submitted by the department of homeland security and the june the twenty seven bond proceeding did not amount to clear and convincing evidence of i look at the two thousand and one convictions which are very serious the two thousand and thirteen convictions which were very serious it's clear that the judge did misstate some of the details of what he was convicted of but he wound up with what you call a residual clause where he's talked about overall his involvement in drugs and drug dealing in drug trafficking the like and there is evidence both by way of confession and conviction that he committed these things why is that not clear and convincing evidence of a danger to the community well your honor i think i would think this is this is really significant the sentence that was pronounced by the superior court in that case was largely a probationary sentence and mr fry had successfully completed that term of probation and then that probation controlled substances for sale and maintaining a place for the unlawful sale of a controlled substance he was sentenced to six years and eight months in prison in two thousand when i know that's back a little bit but the reality is that's part of his record the judge missed misstated the two thousand and thirteen conviction but he said in conclusion the court finds at a minimum respond and has been using meth and feather me for an extended period of time while committing collateral crimes such as the forgery in better which we're still back away enough or alternatively aren't you asking us to weigh the evidence in lieu of what the i g did so your honor i don't believe that's enough likely that he has engaged in trafficking based on his convictions in other words that his two thousand and thirteen conviction was proof of trafficking well but we're talking about a trial judge trial judges have a lot of discretion they look at people look at their demeanor they draw from the overall record are they not entitled to make a determination overall i believe they have to be something but this record is replete with convictions and and please serious serious drug trafficking offenses right well i don't dispute that the two thousand and one convictions were serious your honor but we're talking about the two thousand and thirteen conviction the of course he had been on probation for nearly two years in a probation that included drug testing and drug treatment at the time of the hearing went to that absolutely correct and say we agree with the judge you just got that wrong but you got  example he got x number of things on the table he could have considered so maybe got right that he got wrong are you saying that if you got any of it wrong that we throw the whole thing out review it to say it's not clear and convincing evidence or on the contrary are you saying we want the court of appeals to weigh the evidence to really weigh the evidence and when you look at it you're going to see that this judge just got it wrong which is  is dictated by by saying but i didn't understand in saying to have so that we got to look at the discretionary judgment of whether those standards met up under the particular facts of a particular case for twenty six dollars does not it has two sentences the st explicitly refers to discretionary determinations and the court into more read that those two sentences together and also in light of the  of that it bars discretionary determinations one example of a discretionary determination that as far as what this court said in previous will remain and that was the amount of bond the court said that that is a discretionary that's not a legal question and  six if there is a legal standard or constitutional standard as there is in this case the decision of whether the evidence presented meets that standard is not a discretionary determination but it seems to me that just eat up  so i guess my question is if part of it's wrong does that mean if so fact that there's a constitutional issue there's no clear and convincing evidence could go to one hundred percent  there was an evidentiary disputes in this court said that's that's that's essentially harmless that wouldn't affected the outcome but the errors here were not harmless they related to his only conviction and well over a decade it really was a center piece of the courts determination and if you read the decision on the court you know focused a great deal on what it found to be the dangers of drug trafficking and again there's no question that the twenty trafficking ok so he's wrong about part of it but the reality is this is a guy who's been involved in the criminal system for just like you know before or it did a bunch of other stuff he just involved criminal activity all along out well no your honor because seems says that that just think convictions cannot alone shoulder that burden and right and again there was a seven year period where mr price was free from immigration detention from two thousand and sixteen and this was the only convictions sustained in that period and we don't dispute that the past convictions st perceived areas but the but this but in order to shoulder the burden of clear and convincing evidence of current dangerous whether he received a bond hearing and by the termination that comported with that class at the six month mark he received determination from the i j a that the government had met its burden by clear and convincing evidence subject to top twenty six dollars to these and that he he is attempting to to make a constitutional claim about the length of the tension and whether the i should consider that he is a member of the rodriguez class and as a member of that class  that litigation is ongoing and the court specifically declined to determine the constitutional issues in that class remanding it to the district court in the central issues of california to hash out those issues so to the extent that he does allege any constitutional issues that's not proper for this panel to consider because he is a member of that class and that is getting worked out through the litigation and you i mean is there any authority for the proposition that  class action can preclude you know an individual person whose name he's he's an individual in custody asserting you know bringing his position under twenty to forty one and saying you know i should not be in custody because this is violating my constitutional rights authority for the proposition that the existence of some other class action can preclude him from from bringing up well in general because that class is a twenty three b two class there is no availability of opt outs from the class action for the claims in that class however to the extent that he would bring a b s petition you know challenging any particulars that were unrelated to his that jennings class he would be able to bring that in a separate b s petition but that's not the claims he's bringing here the claims he's bringing here are in the future alleging different detention issues the only issue in this case is the gentry one thousand and seventeen rodriguez determination i mean i guess it just seems odd that you're saying that he can't bring the constitutional claims he's trying to bring because they're precluded by this class action that's going on but your position in the class action is that the nobody in that case can get the kind of relief that he's seeking so we have to he has to just wait for somebody to decide that you're right in that case and then when he get then he gets to bring his going there that seems sort of a roundabout way of proceeding i think to the extent that the government disagrees with the procedure and the jennings class action it is still currently ongoing  and the injunction is still currently in place so even though the government may challenge that to the extent of the injunction still applies in this case it just it applies in this case to him so whatever the government's position is in that case obviously doesn't affect his current ability to get the injunction in this case which we do not disagree with we can see that he's a member of that class and i focus your attention slightly way for a moment to get back to what i discussed with your opposing counsel and that has to do with whether a clear and convincing evidence was on the table for the i g to use to make a determination that this alien was a danger to the community as opposing counsel has to do with it how do how does this fit in the clear and convincing evidence you have to all be right and part of it the right to just have an innocent error what do we do with that so st off the government  does not contend that there is an error with describing his prior two thousand and thirteen conviction as a manufacturing type conviction which isn't the relevant portion of the decision but excepting the premise of your argument  that would mean that the decision would be would meet that standard what what portion of the information would the i g have to get wrong for a harmless error to disappear we just look at the it's effect on his release what would apply in this situation because the i j a did not in making in making this determination that he had had a series of crimes is built explicitly said that because he was in prison for instance for for two years that meant that he could not rehabilitation it did not use any you know alleged error as basis for is determination and the i g could consider and you know very well could have considered in this no the position isn't that he needs to prove he needs to revive clear and convincing evidence but evidence in this case is that there's no proof of rehabilitation on the record and he provided nothing to claim rehabilitation other than this inference that is supposed to be derived from the fact that he did not violate probation and the government's admits that not violating probation is not the same thing as being rehabilitated and i think that the i j a was acting well within his discretion to do so and so the extent of this court would delve into the factual determination there that would be improper according to top twenty six  he was involved in trafficking type offenses looking to the original charge because in this case he originally was charged with possession for sale which he then pleaded down to transport and the i j a can under the matter of care a factors which this court has upheld yes and it's the government's position twenty six that if we are doing that we don't have jurisdiction yes in this case yes and so then turning to the question about  detention length and as i mentioned that is currently being litigated before the rodriguez class and this case of this court explicitly upon remained from the supreme court declines to make that constitutional decision in the st instance  no cases for the proposition the aggregation of the tension link is a requirement in determining when the tension under the rodriguez class and if you were i mean i'm not sure this is quite the argument that you were making but if you're making the argument you know i have but he could come in and say this is a change circumstance and he'd be able to get a hearing under the regula he's able to get a change circumstance bond hearing if there has been a material change i think in detention status for it for any number of reasons i do not believe that in this case he was of the tension however i'm not sure if he made an argument about his dangerousness you know because i believe the time with that would be something you would consider not even sure it's before as far as i understand it this petition or actually had a two thousand and nineteen bond hearing and he was again denied relief based upon his dangerousness to the community process i think the fact that he has continued to receive a bond you know he has received bond hearings the government has borne its burden by current missing evidence under the rodriguez injunction and that his petition for view has been getting litigated through th score expeditiously shows that he has been receiving the process to which he is entitled and even more so because the rodriguez injunction is broader than what the constitution requires certainly for their question is discussed in footnote eleven of her reply brief the i j a said and clear language the fact that he's been additionally detained for another two years does not constitute changed circumstances you're saying he didn't actually were harmful and that they were likely to affect the immigration judges determination the immigration judge said there was no proof of rehabilitation the immigration judge did not say well i don't think that this probation is quite classes i mean i honestly think that that's perhaps some of the best proof of rehabilitation i think that you could show that you are being closely watched and monitored for any relapses and you did not like could i suppose  from your absolutely accounts as an heir and your honor i mean i think the question is you know could this have affected her early might this affected might this have affected the i g s decision and  errors made here but when somebody pleads guilty or is convicted that's clear and convincing evidence whatever it was they were convicted of the problem here is that the judge missed descrive some  clear in this case and so i think this court should either grant that grant the heaviest petition and or in the alternative remained for a bond hearing unaffected by these errors ok thank you