six eleven he had aspirations of being professional basketball player he never quite made it but that was what his goal was so he played for the university of oregon he finished his kluge a career and then he went to adjust status with immigration so that he could continue to pursue a professional basketball career unfortunately immigration lost some of his applications and so he was while he was working on adjusting his status to be the proper status as a professional athlete she was also working in basketball and in a group called athletes and action and he travel around with this basketball group trying to prevent that risk kids from joining gangs this basketball group had a trip planned to go to canada so he was concerned because just status was unclear with these last applications so we posed most of friends and immigration in the late eighty's or one nine hundred ninety and he says am i going to have a problem and they said well you might so what can we do about it so they do a backroom deal and the issue advance parole documents ok we've learned much later down the road during the pendency of this case that those documents were improperly issued ok but so mr sze goes to canada with the knowledge that if he comes back to the united states he has these documents if there's a problem when he crosses the border in for less than a week he does this thing he comes back to the border comes back into the united states one thousand nine hundred one comes along and immigration decides for whatever reason that they're going to deport mr stray from the united states so they start deportation proceedings in the spring of one thousand nine hundred one somewhere in the summer of one nine hundred ninety one one of the attorneys for immigration says oh well look in his final we have these parole documents so they terminated the deportation proceedings deportation it turns out his lawyers had done it on the wrong form so they immediately resubmitted the application are made i believe twenty seventh of ninety nine during this entire time this entire battle mr sha working in the united states he's pursuing his life you know and he's free to do whatever he wants he checks in as i and this has required he follows all the things that they ask him to do during this procedure or during this whole time period but he's working he's living in the states pursuing his legal right to review the decisions of the immigration law judge and the board of immigration appeals so and on august twenty fifth the morning of august twenty fifth this court issues a stay of deportation it says you know mr sherry your appeal has enough merit that we're going to say immigration you can't remove that afternoon immigration arrest mr cherry and they say ok the regulations in the u s supreme court in one thousand nine hundred five so well established and when we come to this case in ninety nine that and elian who has had his revolt his parole revoked in writing is absolutely left in the late seventy's and early eighty's and looked at the regulation and said you have to do an individual determination even when by alien about how this regulation applies when did the immigration official they claimed that mr sze was in his removal period which is a term of art defined by statute ok now under that statute when an alien is in the removal period there's mandatory detention it had not issued this final decision and so he was not in the removal period of may and then the third point on important is if an alien a criminal aliens in detention for the criminal matter it begins with that that's over that doesn't apply to th complexity of the law excuse me the issue is whether the law is clearly established not whether the individual officer knows that that's objective and this is what a reasonable officer would do and i cut the complexity of the law  send their officers out to enforce the law and we discussed depositions and i'm not sure if it's clearly in the record before this court but in depositions that established that the individual immigration officers are given a copy of statute a copy the regulations go to us in our discovery question we ask for copies of the manual sake how do you apply this and they said they don't exist so immigration and the u s government has decided that the law is sufficiently clear and the regulations are sufficiently clear that their own officers can apply them period who's not given the procedures in title to in a court of him by statute and and by regulation and by u s supreme court case law you know it's a different factual situation you have to look at the status of the prisoner or the amount of the the alien to make a determination about whether or not i mean this is handling him properly or her properly it's the status imber or a criminal alien in the removal period when no one would take him deputy director of deportation and there was no evidence presented on behalf of the government mr shane brought in lots of character evidence saying you know i should be able to be released mr seale refused to let the order was issued after the hearing was issued after the three days expired so that's not a factor in confusion ok what we have to look at is what was said to the united states attorneys about  but that is not a valid reason to disappear judges order every day throughout our country in courts of all different sizes lawyers come up and advocate for positions for clients who aren't physically in the courtroom we expect and demand the clients to follow the judges and the court's rulings regardless of whether they're there if they're b b and c or have a complaint they have a complaint against their lawyers the judge's orders to hold this hearing in a certain manner is vining on them and ministry to the ministry of official has two options when a judge orders to take certain action one follow the judge's order or to appeal in this case they fifth least a court appearing on behalf of the united states in the individual federal defendant judge painter correctly ruled that each of the individual defendants in this case is entitled to qualified immunity as a matter of you have the september seventeenth minute order that judge hogan issued following that hearing that you have the transcript in that minute order judge hogan directed the defendant to hold an individualized bond hearing before an appropriate authority and that's precisely what happened here now at the time that judge hogan made that order he also acknowledged that the immigration judge had been asked to review the pla nine it was have a hearing before an appropriate authority and also during that hearing the parties to acknowledge judge hogan acknowledged that at that time the immigration judge had already held she lacked jurisdiction to pending application for parole for district director beebe at the time that he filed this t r o before judge hogan that dealt in terms of a bond hearing not terms of a bond terry but it does help in terms of the plaintiff had an avenue for qualified immunity there's nothing in the statute or the regulations that told district director b b he had to rule on that parole application immediately and the plaintiff in this case has not a large that any of the statute these defendants with the ins could not tell immigration judge bennett you have to hold a bond hearing because he'd already ruled already ruled that he lacked jurisdiction now the parole application was still pending before district director beebe so that's what they acted upon judge order has written order of september seventeenth hold a hearing before an appropriate authority on hold a bond hearing before an appropriate authority discretion and that's that's part of the twenty two forty one he was corpus petition and that's that's the procedural protection is that there is judicial review and he ultimately disagreed with the opinion he did in his june two thousand opinion in which he granted each of however nowhere does he have done us by a statute a case regulation that would have put any of these defend notice that any of their actions were unconstitutional they were lying in good faith upon perera should varia and our last men disperses stock those two cases tell petitioner has no constitutional right immigration parole and therefore no right to be free from detention pending jumper chasten and alvarez mendez versus starr celt parole decisions are an integral part of the admissions process and excludable a billion cannot challenge such decisions as a matter of constitutional rights i also wanted to address something a question you had raised to the plaintiff's counsel and that relates to the different statutes that are in play here now in may of  on and that was the basis for the individual officers actions that was why they went out to arrest mr sze it was only for the purpose of the actual rating his removal and in fact as they learned of this day they canceled the flight reservations this day and it says right on the order it's a stay of deprecation it does not affect arrest or detention authority and that's consistent with th judge pander found that in fact there was a constitutional violation in this case but that there was no clearly established law that decision has been confirmed by this court's recent decision in one versus b b which was cited in our twenty eight versus b b involved in equal protection claims this case involves not just into the procedural due process claims but it holds with equal for these defendants these officials with the ins could not have known about the full as a matter of law and that's why he was courting different persons california and grossman versus city of portland both cases from this court the only exception to that the only time you can deny qualified immunity to officials who rely summary judgment on all of the claims that plenty of this brought against it they do feel somewhat like a lost stepchild with all of these other issues but these are nevertheless before the court there are three issues that the plaintiff has presented to the court they all relate to mr chayes conditions of confinement the first issue plaintiff claims a civil rights violation due to his initial classification and placement in k blocks fell yamhill county in order for the plaintiff to prevail on this civil rights c he must show that this decision to place him in the cable x l was based on policy custom or practice or that the county employee violated a constitutional right in a pearing to a policy customer practice that was deliberately indifferent in this case mr sze was the last of the cheney booked into the m  county jail on the evening of september the seventh at the time he was booked into the jail there was one cell available a line officer made the decision at that point that mr s to be placed in the cave block cell awaiting the opening of another cell there is no evidence of any policy practice or custom that this decision was based subsequently ratified by the policymaking authority the facts of the case show the court that the decision placing mr sherry mckay block was a not a constitutional violation it was not deliberate punishment it was simply the result of the facts as the line officer found them on that day i mean it has not shown this court or the district court below that the actions in placing this segregation block were in fact a violation of constitutional rights next claim that plaintiff makes relates to his classification security classification county uses an algorithm for assigning security risk algorithm if an inmate whether they be a pretrial detainee or an i ask the detainee has a hold they are automatically classified as a medium security risk this does not mean that the detainee can't be placed in the general population what mr shays asked this court to do is to find that as a matter of constitutional privilege and ins to cheney who has no criminal history be classified regardless of the institutions planned for segregation or administration of the jail as minimum security he's requesting this court find as a constitutional matter that he's entitled to be classified as a minimum security individual or any other ins to taining who has no criminal history that is precisely the kind of discretion that the supreme court should be left as has said should be left to the administrative and then straight of officials within the jail the last issue relates to mr shays nutritional status this is a claim that essentially requires the plaintiff to show that he was denied a serious medical need due to the deliberate indifference of the jail staff in this case the facts are that the jail staff address his needs the jails doctor reviewed mr shays record and said to the jail nurse based on what's happening today there's no reason mr sherry should have additional caloric intake she ordered at the jail doctor or that his weight be monitored to make sure that there was an issue with regard to his nutritional status and then the jail star sergeant went beyond that recognizing that mr sze felt he needed additional calories even though the jail doctor said he didn't he took affirmative steps to try to get mr sherry a job in the jail kitchen which would allow him additional opportunity to obtain one never food he felt he needed unfortunately mr s was released prior to the institution of that policy but the jail since changed its policy in conjunction with the commander and the ins to allow ins employees right as detainees to work in the jail kitchen the point is that there's simply no evidence at all in this record that mr shays right were violated due to the deliberate indifference of any individual in fact the jail staff went out of their way to assist mr sze when it was not medically necessary to do so there are questions here thank you thank you your honor i think i'd like to focus with yamhill county but i want to point out one thing about the case that i didn't allude to in my primary argument is that even if there is qualified immunity the united states is still liable under the federal tort claims act for the ac officers illegally detained mr shays and that's an important point to remember now with you and your county that what we're really looking at here are distinctions between eighth amendment and fourteenth amendment permissible treatment and it's a distinction between a convicted prisoner and a pretrial detainee or non convicted prisoner detainee or a prisoner that's arbitrary they could easily take somebody that was brought into the prison earlier convicted of a crime place them in that cell and take a non convicted inmate and put him into the normal classification  the policy of the n f l charity was to classify according to a form and they take an individualized determination of the mr shelley was he convicted of a violent crime now and they go down step by step by step to determine where in the prison he'll be house in the last thing as opposed to curity ok now that's the policy relating to conduct the policy relating to the immigration detainees is that they get down to medium security and think medium security all we're asking for and all that the constitution demands is that the pretrial detainees be treated at least as good as the prisoners otherwise it's arbitrariness presumed punitive that's all we're asking for the court to say is that dick cheney the same of the prisoner give him an individualized consideration if he's a convicted murderer if the ins dick cheney should go to high security that's not the case here finally and diet there is an absolute constitutional right to an adequate diet