good good morning and welcome to the ninth circuit we appreciate that the lawyers have been able to appear here in person even though the notice was short and i would like to recognize my two colleagues judges scanlan and judge waterford who flown in from minutes aside the given the nature of the case if we take you over the alarmed and we make sure most sides get to say what they need to say thank you your honor may please the court i'm scott stewart on behalf of the united states if i judge i'm going to try to aim to save three minutes for about ok in this case the district court enjoined on a nationwide basis the migrant protection protocols and important executive branch initiative to address a significant immigration gratian crisis facing the united states district court injunction is flawed this court should stay that injunction pending appeal so that it can dress address those flaws in due course i'll start with the district court did your honors as with the statutory authority issue the question whether section twelve twenty five of title eight authorizes the migrant protection calls the parties do not do not dispute that under sections twelve twenty you and b to see if those were the only two operative provisions of section subsection b to return to contiguous territory of individual plaintiffs like those here would be authorized theirs to say if the plaintiffs here were those described in b two that would be authorized my understanding of the government's argument is that while there are two categories of applicants arriving applicants the one and b two the government is that there's a better be one category and then there's a b two category that includes not only be two but also be one i would like to hear the government tell us what their argument is judge ok well as the argument i read ok sure sure you  folks potentially apply you know fall into either of two categories one is is a category success susceptible to expedited removal because they don't have documents they committed fraud they misrepresented and or without inspection whatever or a broader category there may be including looting those folks or just a broader group of folks of other enemy you didn't you know admissibility grounds council let me ask you with respect to the eleven that are here in this case how many were determined by immigration officers to be put in expedited removal under be one or how many and how many were put in for removal proceedings under be to yes you're on the decision was made to put all evan in proceedings under b to a full removal proceedings which then came with it the authority to return them under and what is behind that determination is there are the formal regulations that point in the certain direction in terms of particular criteria so what the secretary did here was describe a category of aliens who were potentially amenable to to this m p p process carved out before you got that category certain folks unaccompanied minors mexican nationals and some others medicine as to these folks who fit into this into this group individual line officers can exercise discretion and say hey is this person a candidate for return to mexico do we or make the decision with respect to that same alien to put that person in to be to it's up to the line officer the immigration officer if the person is up to either proceeding and then the person then yes it is an exercise of discretion judges scanlan and and what is the government rely on for its power to exercise discretion its the conceded well recognized authority your honor this is this is something the district court recognized that pages fifteen to sixteen of its opinion that was recognized in paragraph seventy three of the plaintiff's complaint it's recognized the matter of jarome the board's decision that well rooted principle of law enforcement discretion is the decision of what kind of and proceeding to put somebody into here officers can choose between two that could potentially apply here you have to be one procedure and the be to a full removal procedure so they these these are folks who in an exercise of discretion  and then one last question was or something that stood out about these eleven that were eventually removed to mexico pending the full removal proceedings was something stood out about them  that caused as a matter of policy the immigration officer to select b to rather than be one i don't think we know that your honor it is an exercise of line officer discretion but the point the point i'd emphasize here your honor and this is i think he did the statutory argument really is this to be authority and how to understand that provision what i'd emphasize is that the government has a very coherent and textual understanding of that that statute my friends on the other side in the district court do not have that are b two b the idea is it carves out anyone from a return process to whom who could be put an expedited removal that collapses with the district court's recognition and the plaintiff's concession and the longstanding principle that v h s has discretion and authority to put aliens who could be placed in expedited removal proceedings into full removal proceedings not you know if i can interrupt i'd like to go back to the question i began which is to say your premises your argument is entirely dependent upon your argument that the one applicants are also in the category wou be two applicants here's my problem with that argument b one is headed inspections are really in a aliens arriving in the united states and certain other early arms who have not been admitted or paroled be to is headed other aliens would strongly suggest that these are two categories that are separate her other the court in jonathan's just last year describes least as two separate and non overlapping categories what authority do you have for your reading that they're not separate and non overlapping categories your honor i think i can clarify and hopefully hopefully i give some comfort there jennings didn't address this precise issue but i think the key point is that it's once somebody is put in a b to a proceeding they're not they're at they're out of the b one bucket when somebody put in a b one proceeding they're out of the bait b to a back know i'm not asking about procedures i'm asking about categories and as i read be one and b two those are separate categories b one says inspection of aliens describe so and so and b two very clearly says other alien other suggests that they're not the same once they've been put in the relevant proceedings you're right as all agree the h s can put them in the b to a proceedings or b one proceedings the only authority to put somebody documentation be one also applies is run another aliens be turn to is broader it serves as a catch all provisions that applies to all applicants not covered and we want not covered and we  that that's that goes exactly against your position your honor that's from the background of the case on page thirty seven of the supreme court's opinion where it describes you know as a matter of background again the issue was not present in that case it was not definitively decided what i'm saying is that yes i can i can accept that people are there two different categories after somebody is placed in there and in office we need to determine that they meet the criteria and then place them in the relevant proceeding so your position is that we don't know whether somebody is covered by b one as opposed to be t just arriving alien who is in miscible on one of the two grounds specified there so your view is that that's that's not like just some kind of an inherent objective characteristic that they possess they only get to allow one of the other provision to apply to that person your honor what's what's the textual basis for that reading because if you want to there's no dispute that an alien could be could both fall in the b one description or the b two description there is there's a good amount of overlap between the two and again all agree this is this goes to even though both provisions have mandatory language they need to be read in light of the principles of prosecutorial discretion that we are conceded to have about what kind of proceeding to put somebody into so th point emphasized so your honor is that since all agree just report plaintiff's government that we the government can put somebody into a full removal proceeding it can't be the case that b to a ceases to apply to two folks who have could have the want to apply to them because b to a is the authority to apply that can say that that full removal proceeding to them and once that's recognize your honor the district court's position falls apart the plaintiff's position falls apart and all have to concede that we the government under b to a are are putting people in formal proceedings under b to a and can use continuous return ok so just one one other question on this point if so once an immigration officer decides to play someone in b one versus the t proceedings let's assume here that the place and be one proceedings at that point it's like that's your classification forever and even if you express a credible fear and are placed into regular move removal proceedings you still are the one person you never can be converted into a v two person is that your view i'm not sure if it's never the case your honor what ends up happening is if you go through that through this through the b one system you're in you kind of pass everything you're detained for an a vote in the possibility that there may be a return issue in that case we haven't gotten there in that case i don't want to foreclose that it's not something to score relied on in particular just in the state posher here i think the key thing is what district court relied on and we just don't have good authority here but i would i would leave that that open your honor if i could get another point on the statutory authority argument we emphasize this in our briefs and then i'd make sure to save time for a bottle well i have some questions on the other issue so save some time for that to plea ok very well let let me interject here you're down to two minutes and a half so the idea of saving time isn't going to work if we stick with him fifteen minutes ok so relax to focus i think of a point of emphasis here is that the plaintiffs in the district courts understanding of of the contiguous return authority just doesn't really make sense i mean the it doesn't make sense to take the view that the people who are only the people who are officially entitled to enter the country people who have entry documents and didn't commit fraud didn't enter between ports of entry without inspection those are the folks who are have experts have this return authority subject to them but people who for whatever reason don't have documents committed fraud misrepresented that those folks somehow are exempt for it that's not really the way congress legislates it's not a good sense it doesn't make good sense of the law you know if i can interject here for a moment then you can go back to judge watcher and i think you're feeding into the argument made in the papers you filed with us that the want to applicants are more culpable than b two applicants you said that argument that maybe you want to applicants because they may have fraudulent documents or no documents are more culpable than b two applicants you made that argument in your briefs are you sticking with that argument i think we are sticking with the you and i don't mean to be your word in your brief was culpable right i think as a category as it is a general as a general matter it was reasonable for for congress to take the view that they have less and i don't want to be here and you know and the reason i'm going there and maybe the reason why you're a little reluctant to answer yes or no is that the new one applicants are classic asylum applicants they come to this country with fraudulent documents that allow them to travel or they come to this country without documents and we all understand that the ordinary asylum applicants bonafide asylum app come some of them entitled and some of them not to asylum that's how they come out be to includes addicts convicted criminals terrorists and ilian smugglers so are you going to stick with the notion that the one applicants are more culpable than b two what i'm going to stick with your honor and i take your point but what i'm going going to stick with is the b one applicants as a category as a general first cut judgment by congress are less likely to have an entitlement to enter and remain in the country but asylum applicants fall in both categories your honor i mean asylum it isn't necessarily made with regard to you know all bad conduct many many asylum he's have committed some form of illegality or something is just going to still get so all over the ice the asylum not asylum distinction doesn't really work because folks can and do pursue asylum in both sets of groups where congress recently recently concluded though is that look these categories of folks who do not have officially don't have an entitlement to be here and who are subject to mandatory detention they shouldn't as a category be better off than people who  are entitled to to be here for some reason they presented they have some kind of a document they have some some reason to be here that that's the point i'm ok i'm sorry for the distraction and the pending an answer a question i want you and judge want for no no i just wanted to shift if unless that that issue in particular i guess i don't understand how the government is taking the view that you don't have to ask the person who is to be returned whether they have a fear of being returned to mexico i just don't see how that is not the system as a whole puts the burden and on the african i mean expedited removal itself by statute your honor does say look no no don't i mean the regulation is very clear that you must ask the person so i don't find the statu doesn't speak to it but you know government has promulgated regulations which i think i would say were really required i don't know that you can get around having to ask the person if you're going to try to comply with your obligation not to violate the i don't know the terminology the refinement why why in the world when you ask the person well your honor we're dealing with the expedited removal and you just remove a context in general you're dealing with with a very different situation you're dealing with somebody who's saying look i fear return in my country of origin from which i fled it's different in a continuous territory return contacts particularly under the m p p your honor where what you have are are largely folks from northern triangle countries not from mexico who transit in mexico and just came from their end a e can reasonably be understood too fresh out of mexico say like look i'm afraid of mexico or here's my fear or here's my issue but it's reasonable and completely rational for the secretary and for the government to say look the return context is different in kind from a removal context we're just returning somebody to the country that they're not from iraq it's different in that respect but the obligation the ultimate obligation imposed by i guess archer tree commitments is garci of the courts on talk decision is a good example of that that said look you know twelve twelve thirty one b three and its related procedures didn't didn't apply in that case it was an extradition case and beyond backcourt said look you know if the secretary of state complies with the executive branch regulation says says she did that's enough if she does the terms it's more likely than not that somebody won't be tortured that's enough i'm not talking i'm just talking about not asking the person right so you have you have an obligation not to return them to a place where they would face persecution right that's we've committed ourselves to doing that so and i'm saying how could you set up a rational system to comply with that obligation when you won't even ask the person if they have a fear when they wouldn't know to volunteer that you are still that they'll have the opportunity at any of a number of times and again these are individual players who are claiming on the face of the complaint that they have a fear of mexico they have the opportunity to do that at various points and your honor that the numbers bear out its reporting two to the government by d h s s that this process does work people who there are dozens of people have had their return have not been returned to mexico something like one in five who say who stated to fear you know a good portion about one in twenty i believe it's the secretary has said i want to implement this policy and i want to comply with our treaty obligations right yes you would concede i think that a sizeable number of the folks who are prospectively going to be returned to mexico are not aware of the fact that if they express a fear of persecution in mexico that they could be allowed to remain i presume you're not going to say that one hundred percent of the people in that population know that they have this this legal ability to remain right so how can you want to comply with your obligation if you're not at least going to ask the person hey by the way before we send you to mexico do you have a fear of returning there i just don't see that such a minimal obligation to impose on the government i don't see why that wouldn't be the only rational way you could comply with the obligation not to send them back i think your response is that you are one direct response i hope and she would kind of stay posher response to the first one is that under the board's decision in any v g it's it's up to each contracting state how to implement the particular non farm an obligation here it's perfectly rational to say if people are coming from you know if they're claiming if you're in a contiguous or territory where they just left where they're from fresh out of that country it's perfectly reasonable to have them present that fear and just say look this is my circumstance i face this problem in mexico where that kind of a thing perfectly rational the second point i would i would emphasize though your honor is that if this if this were the only flaw you your honor would find in the system that would weigh in favor of staying the kind of broad invalidation and just saying hey agency you can implement this but just affirmatively ask people if they have fear and that would solve the problems are i would suggest that  that would militate strongly in favor of some kind of very potent stay of the of the existing injunction but i would stick with a point your honor that international treaties don't don't require any particular set of procedures it's rational to adequacy of the procedures but in terms of the statutory first of all the government's assumption that somebody who is placed in who is subject to be won and is placed in regular removal proceedings as an act of prosecutorial discretion is therefore under b two is an assumption it's not it's in fact contrary to what the board found in matter of your m where it was that was the case where the board said there is authority to take people who are subject to two thirty five b one and put them and exercise prosecutorial discretion and put them in regular removal proceedings two for the rule of proceedings twelve twenty nine eight are you want to call them and it said that those individuals though were still individuals to whom two thirty five b one applied there was the language an ear and that said the respondents in this case were who were individuals who had been placed in regular  of the you know the if they fell under those those grounds of inadmissibility those two grounds of it in this ability at least that's the way i understood it i understood that it was a decision just that we can decide whether to place these people  expedite or rule proceedings or regular mobile proceedings and the case that we sent to the to the court yesterday apologise for the late notice just reaffirmed that that's the attorney general's decision and matter and then us which says the same thing it says that the government can play somebody either they said they took the categories they said the category somebody who is inadmissible there for fraud misrepresentation or lack of documents can be placed either an expedited remov regular rule proceedings and then the authority they cited this to thirty five b one they didn't cite to thirty five b two so i think that that is a false notion to begin with that just because somebody who falls under two thirty five b one is placed into regular removal proceedings they've moved into two very high so one of the things is troubling me is it seems to me you're asking your clients the eleven none of whom were treated under be one to give up their present freedom in mexico for mandatory detention if their if turned to the united states why why would they want that well that's a good question your honor and it is something that we asked all of them before we signed them up as plaintiffs because we said look you need to understand if if we win this lawsuit this doesn't mean that you're going to be released it means that you're going to be go back to the united states and either you'll be put in x but i never w regular removal but you could be detained but then we asked them and we said what do you prefer and they said we don't want to be an exit go we'd rather be in the united states well if that's the case then they have to be treated under be one when they come back isn't that right no they don't well again the whole question of what it means to be treated and to be one what i was just saying before just gamelin is that somebody can be under be one and still be put into regular removal proceedings it's like you know the one is the class of people who are in the miscible uncertain grounds the people who could be put in expedite rule or not but i don't know that it matters at this point they've been put into regular removal proceedings if they're brought back the question is going to be whether they're detained or not i think the critical question is the one that you asked about why would they want that and why they would want it is because it's so dangerous in mexico well they came  mexico most of these people during a quite a long trip and they were within mexico for quite a few days why and why would it be more dangerous in mexico than it is in their home country whether it's on douras or or well it's dangerous in their home countries as well your honor that's what i think my question was why would it be more dangerous in mexico than it would be in their home country it may not be more dangerous but it's still very dangerous and the question is why would we be this is the question that i'd like to move to because i think it goes to judge judge pleasures your point about who we're talking about here and who congress was thinking about and i just want to be sure i understand your argument you're asking us to consider that these eleven should be treated as b one because that's your argument from b two b is it not another words you're looking at the b two statute which says it shouldn't it doesn't apply to be one category right it's well if it doesn't apply to be one that's what you're arguing here is it not that you want them to be in be one right and when i'm saying is they twenty nine regular removal and they're in view one and that's what they get exactly your honor and point but the government says there be one only because they're in b two and then the government chooses to treat them as below on how would you respond to that argument i don't understand and that's the idea and i don't think i understand the argument well if that's the government's argument right now i don't get it i mean let me put the governments are going away i understand it ok then and you can respond to that i understand the government to be saying when somebody first encounters an immigration officer and let's say that we know that they are potentially it admissible and one of the true ground specified to be one even if we know that we still don't know what category they fall into until an immigration officer either decides to place them in expedited removal proceedings or under be one or in regular move things under b t u and until that determination is made a person doesn't fall into either category right that's that's it seems ible on one of the grounds that would subject them to you know two thirty five b one to expedite of removal and then they decide whether to put them into expedited removal or to into regular mobile and none of that involves be to there be one and that's why and that's why i was pointing out that yeah that's how you look at it but they look they read the statute differently and i just want to hear why you say that they're from a technical standpoint they're they're reading i don't they say that we don't know which category someone falls into unless and until an immigration officer makes a determination as to which form of proceedings to place them and so why is that not the correct reading but i guess it depends on whether even if we're looking at the language of two thirty five b two b two that's the language that they're talking about and the question is to whom two thirty five b one applies i guess maybe we're coming down to the question they're saying that to whom two thirty five  applies doesn't mean to whom the statute applies it means to whom d h s s has decided to apply it well the word determines is in both b one and b two so it seems logical that the determination of the immigration officer is what sets the trajectory either you're going to be treated under be one or you're going to be treated on your be two as determined by the immigration officer in which case since this is b two determination that we want to prise can't apply because they weren't b one well just a scale and i think it depends on what the determination is i thought the determination of the officer is whether you're inadmissible and certain grounds that's what the officers determining and if they determine that you're in it mister well on the grounds that four hundred to thirty five the one then you're to thirty five the one that seems to be the what jennings is talking about what the supreme court talked about in jennings that there are these two classes that reflect grounds of indeed miss ability and then how they decide to treat people who are inadmissible on those grounds is a matter of prosecutorial discretion whether they put them into expedited removal or they put them into regular remov proceedings and i don't understand how to reconcile the government's the government's argument with the cases that i just cited the matter of year and matter of m s that both say they treat somebody who has been placed into regular removal proceedings as somebody who is a person who is to whom paragraph one to thirty five b one applies and it seems very clear that they're saying the authority to put proceedings doesn't have to come from two thirty five b two it can come from two thirty five the one you can come from twelve twenty nine a which is the statute that provides for regular removal proceedings so there's no reason to be saying it's two thirty five two i would like to sort of point out though that there's another problem with the government's position which is and i'm a little bit confused by their their presentation just now because my understanding was that they had sort of switched positions and now we're taking the position that that that really two thirty five b two has nothing to do you know to that it would be to be to has nothing to do with who subject of the contiguous territory provision because the contiguous territory provision  eliane any alien who is not clearly entitled to be admitted and that the language into that even though it says subject to paragraph b and subparagraph b says that that this  to b two which says some paragraph a does not apply to an alien to whom paragraph one applies no you are arguing that paragraph one does apply so how can you have it both ways telling us that they should be considered category b one well then if that's the case then when you apply the exception at the two that excludes paragraph a as well what i'm saying and maybe i'm not understanding your question just scanlan but i my understanding is that the government shifted its position entirely and has said we don't really care what what two thirty five b two b two says because the contiguous territory provision applies to everybody essentially it applies to everybody that that language to thirty five b two b two has nothing to do with who's described  describe certain groups who are supposed to be in a way they're saying it's relevant to that and so out that the consequence of that position because i think it's important to understand is that anybody who is into forty removal proceedings under their view is subject to contiguous territory of a turn as long as they're also arriving at a land court that means that somebody who has been placed in expedited removal passes a credible fear is written and is referred for for a two forty removal proceeding a regular will proceeding is subject to contiguous territory of return but there's nothing in be one that allows that specifically you know as a matter of procedure it seems as if the government is switching from be one up to the point that there's a credible fear demonstrated and then they're placed in the two because otherwise there's no basis for qualifying for the full panoply of removal well you're right just as there's a scam in that you know that the contiguous territory of a term provision only applies to people into forty removal proceedings so in less if somebody has been put in expedited removal and they're removed they're never in two forty proceeding if they're if they ask for a credible fear and they're placed into two forty removal proceedings under the government's view they're now subject to contiguous territory  no let me help if i can and i want the government to listen to this because this in a way is a question for the government there are two ways as i read the statute to get into two forty or twelve twenty nine a regular removal proceedings right one you can be a b one you come in with false documents or no documents you pass a credible fear interview so you're not subject to expedited removal and you get sent to two forty forty proceedings whether you came by either route you are now subject to the sea removal or return quote return provision but the floor of me is that that well they might have come to the same place there was a might have come to two forty removal proceedings but they've come by different routes the view one comes by one route the beach who comes by another route and by virtue of being in the proceeding doesn't change their underlying characteristics so that if we want to homely example we've got dogs and cats to go to the pound well just because they're both in the pound that doesn't turn a dog into a cat or vice versa and the government can respond to that but that's a that's a fundamental difference with how i view the case i agree your honor and i just want to point out there's also a third route they can get there because they could be somebody who could have been put into expedited removal because they were inadmissible on those two grounds but but the government decided to exercise its prosecutorial discretion and put them in regular removal proceedings which is very technical i think that our reading of the statute is better both by language and structure you know particularly jennings type issues the titles but when you think of what the consequences what the meaning that is this what congress intended under the government's reading somebody can pass a credible fear screening and remember when congress set up expedited removal you know they were they take set up an expedited for seeding because they said people who come without with out documents that were for fraud they don't we don't need a whole hearing to determine their admissibility you can determine that pretty quickly as opposed to people who would you know it's drug convictions terrorism something else where you're going to need to actually have a hearing to determine if there in but they also recognize the point that you made judge fletcher which is that a lot of the people who arrive without documents are asylum seekers who are fleeing for their lives that's why they don't have documents and that's why congress went out of its way as under the government's reading of this statute congress cared about this and they created this credible fear screening now someone passes it and they can be returned to dangerous conditions in mexico without any comparable screening that would that without even as you  said that even asking them if they're afraid that's not the government's position now because the m p p does not apply the n p p does not apply i know and i'm and i'm suggesting that the reason the government was smart to do that is because it could i'm looking just at the statute and based on their construction of the statute because i'm looking at what congress had in mind based on their construction of the statute i think and you can and get them to clarify this those individuals would be subject to contiguous territory return and maybe there be some other constraint i think that's how it all comes down as you said to the reading of that to be a little too to whom paragraph one applies and it just turns on one the supplies mean in that context they're saying that applies means that a determination has been made on the front end to place someone an expedited removal proceedings and it's only at that point that someone then is that that paragraph one applies to them and so once  happens they're not going to be covered by c right actually that i would like you to ask the government this you know because my understanding is that their new interpretation does not hinge on that because it it still says those people had nothing to do with described in paragraph a described in paragraph a they say the salient features have nothing to do with what's in into thirty five b two b two whether it's applies means this or that it only means argument and district court the government you know said yes we're not applying it to those people that's but they were reluctant to say that the statute wouldn't allow for it and i think under their current interpretation it seems pretty clear that the statute would allow for it and all that on saying is if we're trying to come up with what's a more reasonable interpretation of the statute i think you look at that and it seems more reasonable that congress wouldn't have wanted a group of people who they were so concerned with having you know a rigorous credible fear screening to then be able to return be returned without anything and i do think it's important to hear you know i mean what they say about that because the other thing to realize when you think about this is that people in the especially when when congress first and acted expedited removal the main population that it was concerned about were mexicans that was the group of people that were and they were the people that were initially  rules applied to and so when they were carving out exceptions for credible fear there was the real they had to consider that you could have mexicans who would have a credible fear would be applying for asylum what does it mean to have the mexican asylum seeker who's passed a credible fear and can now be returned to mexico i guess what i'm saying is that i think that if you want to make sense and the government says that our our reading of the statute doesn't make sense if you want to make sense of why congress decided that people who were subject to expedited removal the people who come without documents of fraud should not be subject to contiguous territory returned it's because it was essentially looking at them in the way that  fletcher said as asylum seekers and it was saying we want to be protective of these asylum seekers and so we're creating a credible fear screening for them and at the same time we're we're not going to allow them to be returned someplace without protections but  contiguous territory provision would not apply to mexican applicants and only applies to people who are not mexican that's not true and he is only being applied to people who are in from mexico but the contiguous territory provision does not not apply to mexicans so i think that those are that might but the main things i want to say about why the statute makes sense i think the notion that somehow or other why would you treat people who arrive without documents better than others and that's like a false you know question you're treating them differently because they're many of them are asylum seekers and congress wanted to be careful to not return them to danger and that's inconsistent with then saying oh but they can be just returned with no no protection at all and that moves me into the the second question about the adequacy of the procedures and i appreciate your your your questions judge watch heard about how what how what c mean how could you hope to comply with a non reform on obligation and not asked somebody whether they're afraid i mean it just doesn't make sense all that i'll say is that i think that you know the government was now jumping at the possibility well maybe just say we can do that and all be all right and unfortunately i don't think it's that simple because there's other problems with this procedure and one of them's is that it imposes the ultimate standard that one would have to meet in a full blown regular removal proceeding in order to obtain withholding of removal it imposes that standard on somebody who's part of this this expedited on the spot interview so the only place that the agency that the government has and impose that standard on somebody who's trying to you know say don't return me is when they get a full removal hearing where they have you know an adversarial hearing before a judge they have the right to counsel they have the right to develop evidence they have the right for an administrative appeal what we have here is an expedited proceeding you know it's basically just have to go straight to a you know if you're lucky enough you get referred for an interview and then on the spot it's just an interview with an asylum officer not allowed to consult with counsel specifically says that no no time no time to consult with counsel no guarantee even of an interpreter no review of the of the of the asylum officers determination by an immigration judge and all these respects it's even less protective than what we have under expedited removal so and this is something that judge seeburg noted in his opinion and  minimum you would think that here are people who are you know under the expedited removal they get a credible fear it's not a standard it's a much reduced standard not the ultimate standard they get more protections what has the government done in trying to meet its not obligation here they've taken the highest standard and mixed it with no procedures and said that somebody suppose that this is going to protect against  crazy it's crazy and it's and i'm glad to hear that some people have passed it because the stories that we hear is that very few people are passing it i mean very few people are being referred for interviews to begin with and the very few people are passing on what it i well that's that's really your decision i think that you know the injunction holds up on any of these grounds so you know is that basically this violates the i mean if we just did the procedural claim it violates the a usually the you know i believe the remedy for that is vacate your and they can go back and come up with something else now it's true that the injunction also says that it violates the statute so i suppose you could you know if you wanted to parse that if you were to come to a conclusion we think it's wrong that if you were to come to a conclusion that you don't know that we're likely to succeed in the statute you could say that the you might be able to phrase say we're going to waive that part of the you know injunction or not state we're going to stay that part of the injunction so the part of the injunction but i don't know if you can do this or not you're the judges you can figure out you can do but but i suppose if you could you could stay part of it and not say the other still what it means is and this is really important it means that they can't they can't follow this in til they come up with a procedure that works and i works i mean a procedure that is not arbitrary and capricious and that is reasonably related to the goal that they're trying to that they say that they're committed to which is protecting people against not reform council counsel are we in a position where we could decide the ultimate merits in this case in other words to  consider this an appeal on the merits and then decide the case on them or us i don't i don't think so i don't think we've had full briefing on the merits so i think that this is just state well subject to additional briefing right but i think there's still the question i mean it's already on an expedited briefing track and i think that's one of the things that you know in terms of the irreparable injury thing you know i don't know if you want me to address reparable injury or not but i feel like you know we're talking about an expedited briefing and the government obviously points to a crisis but i don't think that you know as this court said in east bay the fact that there's a crisis isn't enough to say that they're going to be suffering irreparable injury and especially if you balance that against what has been what the district court found which is that there's no dispute that the individual plaintiffs here the plaintiffs organizations and many many more individuals who've been removed and have been returned are suffering concrete are suffering concrete and irreparable injury in terms of threats of kidnappings death threats sexual assaults in oh a whole range of rebuttal thank you your honor i want to make sure of it just two or three points your honor the first is respectfully from my friend she still has not given an account for how v h s can later by some other route but that still doesn't that doesn't address that immediately authority and discretion issue of how alien like the plaintiffs here are who could potentially be placed in expedited removal proceedings can nonetheless be placed directly into f think that was the lead leave open the possibility your honor it's it's again it's still not presented here what i would point to your honor is that somebody is not by the statute necessarily entitled even to be placed in that kind of proceeding it's under twelve twenty five i want to make sure to necessarily a folder proceeding but basically what that says is down the line after this initial kind of b one b two a kind of choice is made if somebody can get into that further consideration by regulation that person does go into section two forty proceedings but again that still doesn't get to the difficulty for my friend which is that initial how does somebody it placed into forty proceedings as i understand your argument it is dependent upon your first argument in your papers filed with us not to reply but the first first papers filed with us your first argument which is just say that the one describes a certain category of arriving applicants beach who describes not only be one but also all the others and that therefore they are not too discrete and separate categories if that's true i see how your argument goes from there if it's not true as i see it your argument falls apart and doesn't work and i write that it falls apart if b one and b two are in separate and non overlapping categories respectfully your honor it does not fall apart and i see it describing as kind of a supporting secondary argument we're really focusing on where full removal authority come from but why doesn't fall apart because if the one people are only be one people and can never be anything other then be one people be two people are subject to the return pr are not so how do you get there the only way you get there is i read your argument this is what you wrote is that be one people are also at the same time be two people and therefore subject to the procedures of be to prefer to i think judge wofford give a good description of it your honor where the question is you have the salient in the question and it could potentially be fall be put in either category fit the description of either category the question is which provision is applied to them that then determines what happens next but wait a minute i understand that somebody needs to make a determination and i'll use a homely example i need to make a determination whether this is a dog or a cat but the person or the entity or the animal is the be you one or be two  the animals a dog or a cat irrespective before before i make the determination and after i make the determination my determination is merely sorting them into the category as described and be won or described and be too they don't become one or based on my determination that either are arriving without documents or with fraudulent documents for they're not and i was and my saying one way or the other doesn't change how they're arriving and i would suggest your honor what i would say is that we to the responses i give your honor the problem with that is it's still a problem for my friends because basically what it's saying is that even if somebody is a cat we're going to somehow turn them into a dog and i think that's that's where the analogy has a problem and i