thank you your honor may it please the court i will address the issues raised in the government's motion to dismiss the case and then allow my colleague to talk about the other issues now this case is not moot under the heightened standard this court applies when subsequent events that happened on the appeal introduced into the case and that is because it is not absolutely clear that mr fetters detention under twelve point six will not r and the reason that this case just to be clarified the case is moot it's just whether there's an exception that brings you out of the problem otoh i are not subject to this law anymore i understand that question but i actually think that the law at least this ird circuit has has adopted it's an open question in this court it's brief in our supplemental reply brief in pages eight through ten and just briefly if i could give you an overview here one of mr veterans grounds before the one  of his arguments was that he was eligible eligible for withholding of re move all under twelve thirty one b three but you're only eligible for withholding every move all if you haven't committed particularly serious crime now the third circuit has held that only quote aggravated felonies count as pretty as particularly serious crimes and here the b i ed made it that mr veterans of synergetic mushrooms doesn't qualify as an aggravated felony but it went on and said even though it's not an aggravated felony we're still going to say this is a particularly serious crime now again this is an open question in this court and when the court you know gets his full briefing on the petition for review and rules on this issue if it agrees with the third circuit then mr venture's detention will w possible argument here and choose to assess whether it's absolutely clear that his detention will not recur and here when one of your sister courts of appeals has adopted a  view of the law which which of this court adopts as well would lead to that recurrence of the detention that seems to work too well exceed the an absolutely clear test and in fact i think it would even it would also satisfy the capel of repetition yet evading free view doctrine there of the third circuit again dressed up on the table of repetition you have any rear view doctrine actually address a very similar circumstance in the dyad case there an alien was making the same challenge that that my client is here to his detention without a bell hearing under twelve twenty six see but during the course of those no longer had a case it dropped its removal proceedings but the third circuit said now because the detention is capable of or of repetition and his reasoning was that the bag for of that conviction was on was on appeal in the state court system and the state court could overturn it at which point the government might once again bring those three move oppressed seedings now here mr vetter has a case that is at least as strong as as that  yet again hinges on what a court will do with with some some arguments and i live in a related case and we've shown that that his organs are at least plausible and in in fact again they've they've been adopted by one the government claims authority to detain mr venture under section twelve twenty six c in fact the government just doesn't just claim that authority it's suggested it's required to do so under section twelve only sees mandatory detention provisions it's this issue mr vision mr venture asked the court to decide today and that is whether the constitution allows for long detention of twelve twenty six c without a bail hearing and without specific findings of dangerousness and the risk flight now i think lee speaking this is an open question or a matter of first impression both in this circuit and nationwide but even though there's no binding authority the supreme court has weighed in on tangental issues and three trilogy of cases that biased to more and jennings and collectively these cases provide some insight about how long detention works in the immigration process even though none of these cases dealt with this exact issue so first today then in the more the supreme court actually addressed section twelve twenty six c but it distinguished between brief and limited detentions that redish are there and the prolonged it's engine that's at issue here and there's two points of that opinion that case that make that distinction between brief and prolonged detentions absolutely clear first the majority based its opinion on statistics that purported to show that the average length of detention under section explicitly teed up this issue in fact the court after asking for supplemental briefing on this exact constitutional issue neglect or declined to reach that constitutional issue and said and i'm quoting that it had no occasion to consider respondants constitutional arguments on the merits but even though this is technically an open question there's still plenty of authority to guide this court and it gives resoundingly support for mr venture's contention that prolonged detention without a bail hearing violates due process that it is a fetus itself in many ways this conclusion follows of course shortly from there the question in that case was whether an alien detained under twelve thirty one whose ninety day removal period already expired could then be indefinitely held under separate food provision and that court held the supreme court that is now that those aliens who had already had their full statutory appeals process and had already been awarded removed still had a due process interest and were entitled to a bail hearing after six months of detention following their that's the case mr veges case of the twelve twenty six c detainees case is at least as strong where they're still undergoing their statutory process and even if this even looking vitus six different circuit courts and three three supreme court justices and even the solicitor general have agreed that at some point prolonged detention can run afoul of the due process clause taking those in order solicitor general and jennings said quoting in their supplemental briefing on constitutional issue as the passage of time increases a court may scrutinize the fit between the means and the ends more closely solicitor general even when it's hard to embrace a case by case havey as approach to determine whether to determine whether detention to become unconstitutional pro law then in the dissent in that case just as briers opinion which was the only one that actually reached the merits of the constitutional plain agreed with the solicitor general that prolonged detention under section six did require a bail hearing after it became a reasonable and  longed and in doing so he echoed the reasoning of the six circuits who had agreed on that principle prior and those are the only six circuits in fact there's no authority to the contrary that exists and even though jennings the james majority disagreed with those six circuits application of the constitutional one instructor and and disagreed on reversed on statutory grounds it did nothing to implicate or to disagree with disrupt their constitutional reasoning so knology the severe constitutional issues that arise with such in twelve twenty six c the question then becomes how to address that in these instances and again those six  somewhere beyond six months some circuits have suggested it in the one to one and a half year range and there a case by case habeas approach where the district courts determine whether an individual petitioners detention had become a reasonably prolonged and under any of these rules mr venture's detention is clearly prolonged looking just firstly to the six month bright line rule the courts that adopt that gain support for that rule from vitus where the court imposed such a six month rule and also from the supreme court's general endorsement of bright line rules it said in times past those make for more strict effective administration and  random outcomes that come to a case by case determination but if the courts sides with some of the other circuits and would prefer this case by case approach misadventures hevia titian clearly satisfies  year detention period for mr venture almost on its own should satisfy the u n reasonability decision that the definition and even still looking to the second factor the reason for the of the person just how the person would be entitled to come back just looking at the effect of not paying the portraying removal what does happen playing this out if the circuit gives them some relief from the pending petition for review how does that affect his being in this case being back in this country if he's already been removed so courts have said that even if an individual is removed pending their petition to a been it doesn't seem like there's any avenue here where he would likely be subject to twelve twenty six c again so the government is in the process of training travel documents they did this once before when his initial remover seedings concluded mr veteran refused to assist can grant him related to twelve twenty six c now whatever the court was to were to say about twelve twenty six he would simply be an advisory opinion about some set of facts it's unlikely to take place or have any effect  and so this court should dismiss this case for lack of jurisdiction i'd also note that most of the cases that petitioners cites in their briefing dealing with trying to find an exception to meet in this case voluntary says agent so those cases are different than we have here cases a voluntary suspicion is where the government or the defendant does something during the course of litigation that eliminates a case or kersey eliminates the injury but does it in a way where the injury could recur if says so india for example the case they raise in that case they noted that he had been released because his conviction had been vacated but that decision could be overturned  court also noted that the government represented that petitioner in that case had other conviction that might subject them to detention and so it makes sense in those cases to get more assurances that it's clear that the injury isn't going to recur as soon as this the court dismissed that's not what happened here there was no discretionary decision or voluntary conduct by the government that's a limited is claim his claim is simply become eliminated because his removal proceedings have run their course and by operation of law once there's no longer move proceedings before the before the agency he's no longer detained during under twelve twenty six c s detained under twelve thirty so there is nothing that the government is gone which is what would happen if this court granted him even partial relief on on his petition for review then immigration would allow him to return to the us and in this instance given their position that would put him under detention under twelve point six c because the removal proceedings would be continuing bush the panel's already indicated just a motions no there's not a real likelihood of success on your petition on his include all of his arguments in the motion to stay in the plans to do so in his picture and for review so really the petition for review is the key here i will also mention that i believe it is his intention to file a second motion for stay raising this new argument that  told the court about and thirdly the motion for stay is a much higher burden then either the absolutely clear or the cable of repetition burden to get an emergency motion for say yep you have to show a real likelihood of success on the merits and i realize it's not like a plumber eight in junction but it's almost like that when when you think about it whereas even under the cape of repetition test courts been very clear that it's less than more likely than not now and now it's more than merely speculative but it's less than more likely than not so even though the motion for say was denied that does not resolve the mutinous issue one more point of response insists changing topics a little bit  i believe the government said that they didn't do anything to to make this claim go away they didn't move his claim i don't think that's accurate if you if you look at this court case for instance there the government actually moving the claim was the repeal of a statute the the a statute being challenge that's probably not the traditional you know government agency stop say a prosecution action but it's still government action that power of attorney general's sessions who is the apple e in this case of so again i realize this isn't the traditional voluntary cessation context but it is a voluntary this once on appeal of something happens that introduces a minute issue then we have to do the heightened standard but i don't even want the court to get hung up on that too much because i don't think it really matters whether you apply the trishul capel of repetition test or the bond or the absolute certainty test and i guess lastly this issue and these types of things that we're talking about these business problems plague these cases and that and that's why there is no guidance in this court there is no published case on the constitutional limits of twelve twenty six see the tension and it's because this happens time and again time and again now we have not found any case where anyone's raised any type of movements arguments i assume that's because they're proceeding proceed pro se and perhaps aren't aren't aware but if this court does not rule on this it will abate review forever