process rights are violated during the credible fear hearing immigration judge could flatly deny a refugee council and interpreter the right to present evidence and indeed a fair hearing and yet under the jurisdiction stripping provisions of the immigration and nationality act these actions by the immigration court are immunized from judicial review so is it your position these are constitutional due process rights or has recognized that the right to counsel and removal proceedings before an immigration judge has twin sources the first is that the right is rooted in the due process clause of the fifth amendment and the second is that the right is created by expressed statutory grant of congress and section thirty six so the cases the eaves cited are those ones that are arise in subsequent criminal prosecutions are we talking about the rights of an alien at the border in an position that the court has opened the door to constitutional attacks on jurisdiction stripping statutes in united states versus iraq as alvarado the court specified circumstances under which the statute could be found was a thirteen twenty six prosecution question in that case is whether there was a right to judicial review of a potential due process violations during the expedited removal proceedings that serve as a predicate for the illegal r prosecution and so the court can analyze the constitutionality of the jurisdictions stripping that case which also said expedite the borders are not subject to any kind of judicial review even on collateral attack in but before arriving at that conclusion good morning had to tackle the question of whether it even had jurisdiction over the due process claim looking at the statutory framework in place section twelve twenty five be expressly strip the court of jurisdiction over collateral attacks to expedited removal orders in the context of illegal reentry prosecutions the court said that this court said that that principle articulated in the statu directly but had with the principle articulated by the supreme court those of lopez which is that there must be some meaningful review of the underlying removal order and so we have the first question and ross alvarado is there a right to judicial  b was unconstitutional in so far as it precludes me any meaningful review of the expedited removal border that serves as a predicate for section thirteen twenty six times so in your mind  why is it appropriate to extend the rulings of those cases which the end result could be a prison versus a case in which we have a person at the border that is  has the power to limit your action and there is no supreme court case that has gone that far precisely because the court has found a way around the serious constitutional question often through hades really but it's undisputed that  certain specific due process rights and if those rights are violated there is absolutely no forum for redress and so these rights are essentially meaningless they can be cast aside with and with with impunity and without consequence this court recognizes borat's alvarado the statute provided that expedited removal proceedings could be left entirely up to the discretion of the attorney general but that's not what happened we have specific due process rights that have been extended but what happened in this salvador but later in the in the record paid by the petitioner had submitted a handwritten statement expressing his fear of return to el salvador and subsequently he was subject to the credible fear screening process and so once he became subject to the credible fear of screening process the particular due process rights that are extended to refugees these proceedings attached as to him it's not our position that the right to counsel and section to se thirteen sixty two extends to all aliens who are subject to expedited removal however in this circumstance when an alien appears in a credible fear hearing before an immigration judge there is a right to counsel it secured by the plain language statute because this is a removal proceeding before an immigration judge it's art and what language of the statute are you referring to work but a specific subsection it's in section thirteen sixty two eight to your exchange between the russian judge and the petitioner was insufficient to secure in knowing where both the right to counsel precisely because the immigration judge failed to warn the petitioner of his right to counsel and of his right not to proceed without counsel that's what we have here and the immigration judges conduct stands in stark contrast to the asylum officer who during the credible fear interview did secure a knowing of voluntary waiver of petitioners right to counsel at that interview at that interview the asylum officer informed the petitioner you have a right to counsel we can reschedule this interview if you want to secure counsel do you want to proceed anyway the petitioner said yes and he signed a written waiver the immigration judge judge that none of these things and so it's our position that the petitioner was deprived of this right to counsel there's no side where you are but can we not consider the response that your client gave in front of the  for a new credible fear hearing that properly comports with there's two processes right thank you council your time has expired we will hear from the government twelve twenty five other detention related proceedings twelve twenty eight aggravated felony exploitable and twelve to twenty five can stay there proceedings they took the time to lay out when the right to counsel task each of these abbreviated proceeding under twelve twenty eight they provide a right to counsel under twelve twenty five we do not but they state the person can have a right to be consulted with someone of their choice for the salinger the congress not taking the time to lay out the separate procedures that they is it fair to say your position is that congress could have an active very elaborate scheme according to setting out various protections for arriving aliens and say that there's no jurisdiction and then