this this case is somewhat consolidated but initially it was because we had some concern about whether we would have enough or least argue the mediations here apparently we do know we have a wealth of riches but well keep it somewhat mister i just mentioned my colleague mr tamil be arguing the case on behalf of the appellant's there i'd like to reserve two minutes for a bottle very well your honour's the issue in this case this whether the government can lock people up for prolonged periods of time without even providing them with a bond hearing and mr de op is a prime example he's been locked up now for nearly three years even though he poses no danger of flight risk and even though the government itself yes your honor you should disregard that the fact that an individual seeks relief from removal does not remove does not immunize their detention from the due process constraints if you look at the i mean if you look at any other situation the government has i mean there's no other situations or an individual can be locked up for this length of time without even a bond hearing we're not talking about whether he could be locked up at all for talking only but upon hearing you say he's never had a bond hearing i mean doesn't the record reflect or at least your adversary says they had a joseph hearing is that not sufficient well first of all your honor i'm not sure whether he did have a joseph hearing i'm not sure that the record does is clear on don't know what transpired but regardless your honor even if the judge said you're not eligible for bond we don't know what else the judge did but regardless that's not the kind of bond hearing we're talking about we're talking about a bond hearing where there's an individual lies determination as to whether de poses a danger a flight risk notably the government has never suggested he poses a danger of flight risk yet they take the extreme position that he can be locked up for as long as it takes for guidance of how long it is  indefinite in the same way as us clearly it does have an end point but the mere fact that the tension has an endpoint doesn't mean that it's not subject to due process constraints the due process issues are important i'm sure you're going to get to them but i just wanted to get a of the of the situation here which is is there a limit on how long somebody can be subjected to mandatory detention without a bond hearing and the government takes this extreme position we believe it's extreme that doesn't matter how long this persists that the proceedings take is occurring to the government really basically bases its whole case on to more which upheld the constitutionally constitutionality of mandatory detention but importantly the more is not as broad as the government claims it or  district court found it's a more limited ruling the court upheld the mandatory detention of somebody who had conceded that he was subject to the statute and portable under the statute for the brief period brief and limited period of time of removal proceedings and you know that that reference that emphasis on the brief and limited period of time runs throughout the more than justice justice kennedy in one of one of his great curses that say that a reasonable detention may have constitutional implications but my question to use how do you determine when detention is unnecessary well that's a good question to twenty's i think that in this case it's one you don't necessarily have to grapple with we think you should in terms issuing a presidential decision but we think that under any and under any any reading three years of locking somebody up without a bond hearing is unreasonable particularly because in the more the court kept on saying a brief and reasonable period of time they were considering contrasting it to us where the court had set up a six month rule so they were kind of had that six month rule in the background when they were saying this and they specifically said that on average eighty five percent of these hearings only last forty seven days and only in fifteen percent of the cases do they last for five and a half months would you suggest that a detention beyond six months as they did in one of the supreme court cases they say that it was just to by congressional state right might be really reasonable yes that's our position your honor our position is that that's the rule that the scorch should adopt that the first step would be to say that this mandatory detention statute does not authorize unlimited detention to reject that position and that's the position is consistent with what the two other circuits that have addressed this issue have held that the sixth in the night and so the statute needs to be construed as authorizing detention only for a period of time reasonably necessary to conclude removal proceedings we agree that we think that six months should be considered the presumptively reasonable period for removal proceedings after which the mandatory detention statute no longer applies proceedings is twelve twenty six it's eight u s c twelve twenty six twelve twenty six a says individuals may be detained except as set forth in twelve twenty six and it says may be detained and that has been interpreted to mean may be detained with a bond hearing and that's what happens the regs provide a bond hearing it said except as provided in twelve twenty six c twelve twenty six c is the mandatory detention statute so that's the exception to discretionary detention and it says that the government shall detain individuals who have been convicted of designated crimes and shall not release them significantly though it does not say for how long it does and so all that we are saying in this is consistent with what the supreme court of the supreme court interpreted the post final order to tension statute in sabi thus we're simply saying that the silence as to the time it doesn't impose a time limit but that the lack of a circuit adopted and in doing so he made two points he said this both avoids the serious constitutional problems that would be created if the mandatory detention statute was read to authorize unlimited mandatory  follow up on that supposing that you were right and we were to agree in the iliad we're going to the way we were order the alien be granted some form of detention hearing at which the government will show that the danger to the community or poses a flightless what happens if well if the government shows its burden of showing of the individuals a danger a flight risk then the individual remains in and this is also consistent with congress in terms of congresses having recognized that six months as a period that sort of creates more of a need for additional procedures for example in both the patriot act provision that a plot that authorizes detention for people who are considered to be terrorists and under the terrorist removal provisions of the statute say that for detention beyond six months there needs to be these six month reviews so we're not pulling six months out of a hat for a number of reasons i mean six months is a period of time that congress itself has noted raises you know certain red flags and is a period of time for which you would expect to have greater procedural protections just what is the  you're saying that this courtroom announcement after six months there's a bond yes your honor your right to try that distinction and that alternatively that bond hearing the first issue to be considered in the bond hearing could be entitle to a bond hearing in the first place so that's what i mean by the presumption it also is put it's part and parcel of what an immigration judge is going to look at if the immigration judge thinks this individual is delaying proceedings is engaging in frivolous conduct then presumably the immigration judge would find that there a flight risk and they're not entitled to release but when terms of a saying a presumption you could also say that at that bond hearing the initial determination is you know does the presumption apply here where distant the choice of hearing satisfy that requirement in as much as for example a person arrested for crimes or some serious offense is given a bail hearing but it doesn't mean that six months later that initial real determination has to be reviewed because there's a presumption that he or she shouldn't be there but there are two separate issues judgment is that the joseph hearing does not go into the question of danger a flight separate argument as to why he believes the joseph standard is wrong you don't need to address that there's the primary argument here has to do with length of the tension so you don't need to get into that but in any event that shows that hearing has nothing to do with danger a flight risk  the code that would grant some relief that's a good question your honor i think that generally what you can do is make a motion to expedite proceedings that doesn't necessarily work i'm not sure that you could my guess with criminal convictions are supposed to be expeditious and that's one of the statutes that judge barnes and lee pointed to for why the limiting construction of the statute makes sense it's consistent with congress's intent but the courts have found that that is not does not provide a private right of action so an individual cannot go in that is that that's a requirement that the government acts but i proceedings but it doesn't get the individual the right to go in and say they're not expediting my proceedings please make the move thank you mr president i will get you back on  appellee this case involves an alien who is properly detained pursuant to the mandatory detention stamp you imposed by congress and upheld by the sea supreme court as permissible under the constitution therefore this court should affirm the district court's finding that his detention is per se constitutional under eight united states code section twelve twenty six c and de mar versus can't you defend this idea that under twelve twenty six government can detain in early and indefinitely by the year seven years without any kind of hearing concerning the justification for the detention well your honor and i think what the united five years she made some point though you have to say the tension is just too maybe we should determine whether there's a justification is a flight risk or this person is a danger to the community or the government's position is sobre the congress created the statute united states code section twelve twenty six c to impose mandatory detention for certain criminal aliens in this case mr dia is been found to have been convicted of a crime involv turpitude which places him under the mandatory detention statute he had the opportunity to raise it in front of the immigration court to say he wasn't properly being held pursuant to that mandatory just detention sat you and he chose not to appeal that decision  which then falls under the first provision of the mandatory detention statute where it says if a crime files but there have to be two crowns involving four four aliens being found i think the language is deportable for two crimes involving moral turpitude he was a practical question i understand your argument a more but the but here's the practical point four justices joined the majority opinion i guess justice kennedy also joins but has a caveat that there may be get a hearing period well in justice scalia's pool currency you said that there could be a circumstance where an individual hearing could be nested necessitated for perhaps as when judge pollock said if the government or if the government delays proceedings here there's nothing in the record showing that the government has delayed proceedings and in fact it's the alien seeking relief from removal that has caused his proceedings to go but what about a factor that we should and so well  isn't pursuing one's legal remedies are appropriate indeed something that we lawyers encourage sure but even in death more the supreme court upheld mandatory detention that was longer than average by acknowledging of the more than your four justices who according to your arguments no no we're hearing because there's a definite date and that is when the decision removal is made and you have one justice who joins and says there are times where termination point so we're not talking about indefinite detention like sabu das we're talking about perhaps prolonged detention but to the extent that the court doesn't agree with the government's position there have been district courts you've taken a reasonable  difficulty in the government allowing for some sort of hearing justify its detention well your honor we would disagree that a bond hearing is should be automatically given after six months i mean even in the circuit and  any practical difficulties in doing i can't speak to that your honor the practical difficulties of giving the immigration courts more to do on an automatic basis but even the sixth circuit and we said that it order where the courts who have held that they themselves the district courts can hold the bond hearings have cited to the language and savita saying that the heaviest court has jurisdiction over this but the underlying purpose for detaining somebody in a case no longer becomes practically attainable once the alien proves that he cannot be removed from the united states versus this situation where the underlying purpose for detaining the criminal allien in the  context always remains the same and it's then the question of whether or not it's reasonable which the government maintains the district court to look at and only upon a finding of unreasonable ness of detention should the district court order the immigration court to give  bond hearing we also agree with the a c l u s reading that if this court determined to thirty sixty or twelve twenty six you cannot be read to include or to detain a criminal and for a period such as this case then it must necessarily be that his detention falls under prop twenty six a because he would have to fall within the immigration detention skiing somewhere and the language of tolls twenty six say where provides the except for language with c joe you know i just wanted to get back to a point i just i'm still thinking of indefinite detention in your your argument is that there is no limit to the length of detention because there is always in the end point well there is no limit pending removal proceedings the the limitation placed on the mandatory detention is the removal proceeding itself which by nature will and you have basically twelve twenty six with trump and the idea of due process for anyone detained in custody no your honor i mean we acknowledge the alien entitled to due process the situation that the government finds itself in this case is that he he is not appealing the fact that he is removable from the united states yet yet he seeks relief from the united states relief from removal and it's the  is pointed out of that's not a very demanding kind of an act right i got the feeling from your answer the judge sure is that it was the government's position that the immigration judge has a great deal to do  on the merits of cases before him and struck him with a bomb here in the undercut his useful life you have to be the government's position well your honor congress has mandated that criminal aliens who have numerated offenses be taken into mandatory detention pending their removal proceedings so that is the government's position that that would justice kennedy said at some point somewhere it becomes an reasonable you can't just have an indefinite detention correct and your honor to that point the government would argue that to the extent that you don't find that two thirty six or twelve twenty six c allows for detention to these periods that courts have turned to a reasonable ness approach such as judge jones in the case which you will hear next he did look to factors we don't agree that he could then hold a bond hearing we believe that the district court upon a finding of unreasonable detention should order the immigration court to hold the bond hearing where the alien would have to meet he is not a flight risk under the regulations already provided under the twelve twenty six a illions you suggest now that the alien has to prove that i am not a flight risk and i am not a danger to the community rather than the government proving the opposite correct your honor that's the current burden of proof that aliens who are detained under twelve twenty six and a have and you from while see must know this is the eye and they have a provision where if the government is acting in not you would personally but if the government just is not pushing the case in the guise you know sitting in jail where they  can't remember exactly the number of the regulation where the b i a must make a decision as is practically attainable that's the only thing i can speak  else your honor as the court stated in dem or the legal system is replete with situations requiring the making of difficult judgments as to which course to follow and there is no constitutional prohibition against requiring parties to make such choices mr d f has made those difficult places to pursue relief numerous appeals he saw the stay as recently as june twenty fourth of his immigration proceedings which i believe resulted in a delay of around two months  t the exhibit that the a c l u filed showing that he received a withdrawal of his guilty plea came out november but he didn't inform the immigration court until january eighteenth i think all of those should be taken into consideration the fact that his removal proceedings have now been pending for nearly three years should not in and of itself raise constitutional concerns nor should this court determine that his continued mandatory detention is unreasonable the government asked th switches the burden on to the district courts basically the district courts need to make this decision additionally it does not provide relief to the hundreds of detainees who are pro se and cannot bring per se havey is petitions that's why to say that that you are going to require to suffer unlawful prolong mandatory detention unless you unrepresented the taney can go into hideous can go into district court and bring a hevia so you think this is a matter that should remain with the immigration courts i think as a practical matter and it's not you're not going to be able to protect those detainees and the district courts are going to continue to have to struggle with this that that's why the most practical response is to provide a time limit and to provide that well i'm saying two different one is i think the most practical response is there has to be a way that individuals don't need to go into haiti as in order to protect themselves from unlawful prolonged mandatory detention the second point is it's a lot more expeditio immigration courts having to file proceedings in this court yes your honor and the other thing is in terms of why we think it's it would be practical to have a time limit instead of this general reasonable miss test and i think that part of that is is just evident from the government's broad interpretation even under their reasonableness test they say that mr diaz detention is reasonable so i think you're going to continue to have diversity version district court decisions about what is reasonable a minimum this this court should reject the government's suggestion that because an individual pursues relief from removal the prolonged detention is reasonable and that just that just needs to be rejected i want to make one point as to the vacat your the government set suggest that mr diaz did not bring this to the court's attention till january in fact he brought us the immigration court's attention in december and to the government's attention in december at his hearing on tuesday the government was already aware of remote ration judge can take into account the length of detention we think that the bond hearing the government's burden of showing that the tension is justified to take into account the length of detention in the longer the detention the greater justification so that's something that could be decided at the bond hearing alternatively if this court is not comfortable with saying you need to get a bond hearing at six months then i think the least needs to be a hearing and i would say before an immigration judge at six months as to whether detention is reasonable because because in some cases six months of detention won't be reasonable maybe you're saying in some cases it would be and i would say that the only factor there though that should counsel against the minimal  protection of a bond hearing is if the individual has engaged in dilatory conduct if the individual has engaged in dilatory conduct then i believe you could say then you don't get the bond hearing and of the day you're still under twelve twenty six enough twelve twenty six dilatory conduct and part of this is because coming up with the construction of the statute how long does twelve twenty six see apply you can come up with a construction which applies for a reasonable period immigration proceedings move proceedings who's a lawful permanent resident and somebody who has no right to be in the country or yes well i think that there could be a distinction in terms of the amount of due process they're entitled to the clearly somebody like mr d z is entitled to due process arguments could be made that lawful permanent residents have greater due process in terms of construing the statute it makes no difference because the statute applies the same way to lawful permanent residents a nominal permanent residence and i refer to this court's the supreme court's decision in clark the martina's where it said because the statute had to be construed this way for people who were admitted to the united states it also had to be construed this way for individuals who are inadmissible because the statute made no  diaz falls on the constitutional due process side of that line anyway he's clearly entered the united states if not already been admitted and so he's entitled to due process thank you mr ritz i guess we should go over now to  presents an issue of pure statutory construction whether provision of the immigration act twelve fifty two f one bars appellants from seeking a classified aeration the prolong detention requires a bond hearing the district court in this case granted the individual of claims challenging prolonged attention but dismissed our class claims this was incorrect for two reasons first as recognized by the only circuit court to address this issue i'm referring to the ninth circuit in rodriquez twelve fifty two f one doesn't apply to declaratory relief second and then the other even if the provision were read to apply the declaratory relief it doesn't cover claims that the government is violating its own statute so turning to my first point do they and we do they have standing to raise these issues on the class basis so they have to need to be punished representatives given that they're no longer in detention right so there's there's two issues here on our one is whether this appeal is moot and it's not because they had lied claim to the time we filed the motion for class certification i remain we would likely have to find additional class representatives to represent the class does that answer so they have standing to pursue the appeal that's clear under th court's case law on the supreme court's decision and garrity because their claims their class claims were still live they were still in detention at the time we filed the motion for class certification and you relate back to that time now if this court were to rule in our favor and remain and we would likely have to go back and find new class representatives because they wouldn't have standing anymore since as you point out they're not in detention just so with my first point when read in context it's clear that the statute doesn't cover declar government argues nonetheless the term restrain in there's a phrase in the in the in if one is in joint and restrain the government argues that the word restrain means declaratory relief among other things well it's got it has to mean something different than joy and i suppose that's right you know it's it's there's an or between what does it mean that well here your honor we argue that it means temporary restraining orders and that's because when read in the context of the statute it's clear that it can't mean declaratory relief the cardinal principle of statutory construction is that congress presumably means what it says when it use the term in one part of a statute and ignores it in another and indeed that's the very analysis the supreme court applied in the ten in analyzing a different provision of t fifty two f tell fifty two f two when it read the word enjoin not to refer to stays of removal pending federal court review because congress separately referred to stays elsewhere in the statute that same analysis should apply here the statu whole perfectly valid argument but it is this kind of a statute in which one can really talk about these various sections of being closely interrelated in the composition was i think it's quite possible that you know a lot went into the statute that certainly the case but at the end of the day we're left with a tax that congress enacted and it's clear when you read the text that the whole he once was declaratory relief incidentally it also so i think even reading at the statute as a whole it seems like the best reading overstrain is restraining a temporary restraining order but let me let me ask you this  that's correct your honor but the remedies are still distinct because declaratory relief isn't backed up by contempt sanctions so such that if the government fails to comply with the order it can't be dragged into court and forced to pay a fine but you you would expect  documents certainly your honor i mean as an initial matter the statute of course imposes no bar on those individual injunctions in the subsequent proceedings but more importantly the remedies are still distinct because one isn't backed up by contempt sanction and i would also no although we didn't address this in the briefs congress has done this in a different context the former three judge statute or the concern with somewhat similar congress was worried about a single district court in joining us statute is unconstitutional but it are you're requesting didn't i retore we leave that there is a unconstitutional component to enforcement of twelve twenty six is that right that's correct your honor the only definitive too much right the only practical difference and that's really the only practical difference here between an injunction and a declaration so ultimately all i can tell you is that we need to focus on the statutory tax which is fairly playing quite plain in fact in excluding declaratory relief from the scope of the here is there a practical effect in what you are you're seeking the cause let us say that this rabinowitz is correct that detention beyond a certain period is unconstitutional or you have to provide the bond hearing if we were to agree with her and we were to say that all of the individuals in the class you purport to represent that's right to be bound by that ruling that's right so why do you need a class well i think it depends on how the court decides mr jeffs case if the court holds that an individual individuals are entitled to a bond hearing at six months this case may very well be moot however if the court decides that case on narrow grounds for example his three years of detention who is it is their correct that if we decide the first case in favor of the your cases i think it depends what the court does in that case if the court for example rules that at six months you've got a hearing this case very well may be moot because our class the class we seek to have certified involves people who are detained for six months or longer however if the ruling is narrower based on for example these three years of detention or the posture of his removal case and his future proceeding then we would certainly still have to live class claims because we're representing or seeking to certify a class of people locked up for six months or longer i also just want to go back  judge their eyes and question on the difference between enjoying the restraint notably the government does not provide a definition of or strict restrain that would be distinct from enjoying its definition of restraint is to prevent from doing to hold back to keep in check and that would sweep up in joint so for that reason restraint camps are already can't mean what the government says it so unless the court has further questions i just want to turn to our second point which is a point in the alternative even if the statute is read to cover declaratory rel it doesn't bark claims that the government is violating the statute by subjecting individuals to prolong detention without a hearing as the ninth circuit recognize twelve fifty to one may bar courts in declaring a statute in oper but it doesn't bar courts from declaring what a statute means that the government argues in its briefs that we are really alleging a statutory violations that we're seeking to invalidate the detention statute but that's simply incorrect that presumes that the distension  is clear in authorizing prolonged detention without a hearing for as long as it takes to revolve removal case whether that takes five years seven years ten years and it's more misery benefits explained however the statute if i want so it's not for the court to determine whether under the concept canon of constitutional avoidance the statute authorizes detention of that nature that's a statutory claim or alleging a statutory violation and as a result that doesn't fall afoul of twelve fifty two f one good morning your honor some may have please the court date or atkinson for the appellate just a couple of housekeeping matters because this was set down as a consolidated matter and some of the questions from the op of the flap overlapped into do so as soon as practicable i don't know off the top of my head if there is some more provision with regard to the i j s but i think that administrative lee one can go to the board of immigration appeals work to the executive office of immigration review and request expedited proceedings on the part of the i j a i'm not aware of any case in which an immigration judge has ever simply sat on a case and done nothing for years and years without answer to that wasn't an issue that the that the parties brief but to an extent under the doctrine of the law of the case their case is moot and this is where what judge jones did in the middle district of pennsylvania and ollie one foot is in the op and one foot is in this case what notably the opponents have failed to acknowledge here today is that in that case and ali in the case before this court on august tenth two thousand nine judge jones issued a decision that did three things number one it rejected the six month bright line rule that the appellant's now stand before this court and ask for they did not appeal that it also you tell us what the basis rejection was yes judge jones surveyed the case law with regard to twelve twenty six c and in those cases where courts have rejected the government's position that the more verses ke twelve twenty six the permits mandatory detention for the period of time until the removal proceedings are ended he surveyed the case law where we lost and he said that he correctly noted that where the courts have gone with a different have have examined what we do then they have looked at factors of reasonableness because setting a bright line rule at six months does not allow for as judge poll pointed out those instances where a detainee is acting in a dilatory manner it does not allow for flexibility with regard to immigration court scheduling it sets a one size fits all standard well even if this court does not accept the government's argument and i think this prayer did an excellent job arguing but if the court disregards i would suggest that she did not very good and has to we have to do something about standards but if you're trying to figure out a standard maybe her seeing that is correct i don't know but we have to consider alternatives as well if in considering those alternatives and we've argued what the alternative standard should be it should do what the court did in ali and that is to say there comes a point looking at justice kennedy's concurrence there could there may come a point at which continued detention becomes unreasonable it is the job of the district court at that point when this is six months that what that's incorrect i mean that's that  well no it's correct that he said six months does not work and he's but it's incorrect that six months is a workable standard that takes into account the flexibility of the immigration court so if if you're not going to accept the government's position you accept their six month position and that leaves you a middle area which we think judge jones in the alternative got correct which is you look at factors of reasonableness which can take into account  corpus that's back in the district court it's back in the district court and if the judge determines that continued detention is on reasonable then it goes before an immigration judge for a bond hearing just if it is more efficient though as this  one failing on the part of mr benefits to point out to this court is that immigration judges have jurisdiction only to consider flight risk and danger they cannot consider the reasonableness of continued detention with regard to the a standards for continued detention in the twelfth when these things that's correct but justice kennedy in acknowledging that mandatory detention is constitutional if you believe his concurrence also said that while it is constitutional and may continue for a period of time beyond six months as they didn't do more there may come a point at which it becomes unreasonable at which point the alien has a remedy in the district court with a hideous petition and if you look at cases in which this is been done in the middle district of pennsylvania courts the courts that have followed ali in this circuit have found that in some cases yes as a matter of fact a bond hearing is not necessary because continued detention is reasonable and in other cases on a on a case by case basis have said no it's not reasonable at this point now you must have a bond here i thought it more respectful to our separation of powers like the executive branch of government handled these gratian issues i thought it would have been preferred even by the executive branch because that's really gratian law generally is yes what you're what you're then doing at that point is you're saying every alien detained beyond six months gets a hearing before an immigration judge and i don't know if the government has taken the alternative position that frankly we would prefer a reasonable the standard that comes up and that's what i do because of the burden placed on immigration needs to be said i think if you're talking about a presumption i'm not sure how the presumption would work and i'm not sure what the executive branch  hearings well i think the executive office of immigration review would have a real problem with you immigration judges now to determine whether continued detention is a result not based on flight risk or danger but on these constitutional due process issues i'm not sure that's within their jurisdiction which is why the government has taken the position that as an alternative if you don't accept their and the government's primary position you should do what judge jones did and ali with the exception that the bond hearing should be held before the immigration judge let me turn now that we've kind of humor thing and sure it does have to do with with the with you because you're arguing right now but right the difference between i thought i did touch on it last time but it doesn't truth class is there a difference between lawful permanent permanent residents who are being detained under twelve twenty six c and people who are just admissible from the start should should one get is should should be admissible folks hearing well i think there is a distinction based on status and without going into in the too great of detail because i'm eating up my time on the on the class issue but there is certainly a difference between arriving aliens aliens who have never made an entry into the united states and those who have made an entry in the united states and there is there are a number of cases that discuss the different rights between them and heightened rights that an l p r may have  been a lot of those cases come out of the ninth circuit but that is something that certainly can and should be considered in determining whether or not continued detention is in fact reasonable because that brings into the balance the due process rights of of the alien on one was what these what the ninth circuit did there and there were essentially three errors on the part of the ninth circuit first the ninth circuit said that restrain must mean something right i think everybody agrees that restrain must have operative a fact in addition to enjoin interestingly appellants take the same position as the ninth circuit which is well that can only mean can only me temporary restraint temporary restraining order or temporary  the issues that underlie in can an air of al out and all of the other cases which is what is twelve fifty two what is twelve fifty two f to mean and does stay have removal fall within the term enjoying and so there wasn't really a  examination of whether declared none of those cases examine whether declaratory really fell within f one of those all contrasted f two against f one and noted well look congress didn't  opponents do not argue i'm sorry restrain has a plain mean restraint has a plain meaning and following traditional principles of statutory construction judge jones looked at what is what is restrain mean he looked a dictionary definitions which has repeatedly said is perfectly appropriate and he said that restrain means to limit to constrain to too narrow and then he looked at what is the purpose of their action their action is to say twelve twenty six eight after a certain period of time after prolonged detention when it becomes constitutionally problematic does not apply simply ceases to operate with regard to these aliens what they're arguing under the doctrine of constitutional boyden says if prolonged detention under twelve twenty six c is is not constitutionally permissible then it cannot apply to the continued detention of those aliens at that point it ceases operation and twelve twenty six a governs the continued detention and they get a bond hearing so it is it is completely disingenuous for opponents to stand here and say that it is merely a they're trying to remedy a quote unquote violation of twelve twenty six c they're trying to cease its for really construing this complex statute especially given the very limited very limited legislative history that we have which seems i disagree or let me let me just say why with regard to whether or not it first this court has repeatedly said that you look not first to the legislative history but you look to the plain meaning of the statute and if the plain meaning of the statute is let me let me grant you this let's say it's for argument's sake let's say that restraint is ambiguous then the question is well could declaratory relief fall within the ambit of restraint and he would look to the legislative history and he would look to other aspects that that the opponents of pointed out but one thing remains clear if congress isn't ten was to stop injunctive relief and i see that my time has expired may have finished answering the question is if congress  intent was to stop class wide challenges in a way that would fix the executives ability to apply a particular statute through injunctive relief and i think that everybody in this court would have to acknowledge that for the most part with regard to every single member of the class in a way that would be permanently binding on the government not merely persuasive binding on the government and would be in this court's words in national union practically indistinguishable from  then even if you find judge pollak that restrain has some ambiguity and ambiguity to it nevertheless in the context of the statute in the congressional purpose what they are seeking to do falls well within what congress was intending to prevent in this case and that's consistent with this court's case law and it's consistent with with with the congressional intent one for the question i had hoped that i would only with respect to be a very thoughtful analysis of this that you professor newman i found no reference in your because if what with what judge newman is saying and they have adopted by by incorporation by reference if what and this may take me a few seconds to get out but let me try and set this up if they're saying that  if you retained the jurisdiction of the supreme court to enter injunctive or restraining relief been a case has to get to the supreme court somehow and the only way declaratory that kind of relief can get to the supreme court is through a request for declaratory relief but it can also get to the court or request for injunctive relief and so if you reserve if you exclude jurisdiction for everyone except that jurisdiction and for those causes correct with regard to declaratory relief then he even though he didn't consider it his analysis must also apply to injunctive relief in other words the only cases that can be over which appellate and district courts are deprived of jurisdiction are those cases in which the supreme court has original jurisdiction the the more reasonable and that may be an ambiguity with regard to the reservation of authority to the supreme court but the most reasonable interpretation of that i think is that what the what congress was saying is that with the exception the supreme court nobody has jurisdiction with regard to these kinds of causes of action and it may be the case that congress later allowed created original just jurisdiction on the part of the supreme court to do exactly that which it permitted the supreme court to do under twelve fifty to have one but i think if you if you have to provide a class wide injunction it would mean in this individual case there in joint with the court's permission i just what i would like to use my time for is just to address the government's arguments regarding judge jones approach and urging this court to adopt it because we think that approach and i believe i sort of addressed it somewhat in my first in my argument but i would like to just clarify to the extent it's not we believe that approach is both unworkable and wrong it's unworkable precisely for of the reason we set as it requires everybody an represent detainees to go in and bring a hevia section so it's unworkable because most of those individuals can't go in and bring a hey vs action and it also means that all the hit the hit district courts are burdened by this it's also wrong because all of those different factors that judge jones set out are relevant to the question of weather mandatory detention is unreasonable whether mandatory detention has extended beyond a reasonable period of time the issue here is the jury's empowered his argument was i g s make those determinations of just are allowed to make two responses i don't believe that that's true i believe the b i has said that  immigration judges can consider whatever factors they want in terms of deciding by in any event this issue in the bond hearing is going to be is the person a danger a flight risk and just to clarify the issue is whether at a certain point mandatory detention is unreasonable it's not whether detentions and reasonable it's whether mandatory detention is unreasonable and our position is that that has to do with how long the detention is because the deprivation of liberty the due long right and that's the issues of the issue is the length of that detention and our position is that the due process concerns come up because of length of detention not other factors because the deprivation of liberty is greater and the supreme court civil the tension case law makes clear that when detention is when there's a prolonged deprivation of liberty the government has to provide a sufficient justification an adequate procedural protections so our position is that the length of the tension is the the