detention statute at issue here eight us c section one thousand two hundred and thirty one i six requires bond hearing after six months of immigration attention in which the government must prove by clear and convincing evidence that they aliens continued detention is necessary but that is true but do you off to our call it did speak to that and the supreme court in jennings did not say by the way anything related to any of the rt has to be directly conflicting irreconcilable i'm struggling with how do you off to the requirement for one bond hearing after six months of there's no prospect of imminent release violates jennings in the sense that miller began he would be brought into play can you help me with that certainly your honor and our position is that yes jennings does meet that at all about bond hearings how can you read that into it with respect to those absolutely clear but i'm struggling with how you get the idea that maybe there's tension but how can it be totally twelve twenty six am jennings however was that you know cracked th circuit's correct that may detain is ambiguous so you can apply the can and the problem that the th circuit had in rodriguez was that it wasn't actually interpreted the statute even if you have that ambiguity the canon of constitutional avoidance is still just an interpretive tool and what supreme court said was taking the words may continue to detain or may release and somehow construing that is requiring bond hearings is just not a plausible that's different is it not it is different your honor but but the similarity is i weigh the differences particularly well what we're talking about here is is not just the literal application but how to apply it well but then you run into our members as gam issue i confess that one can read some tension into it but the supreme court in connection with this specific statute that i refer to that just no question there gets caught but that's not what i find with respect to drop thirty one a six is not mentioned wasn't before them they didn't talk about its effect with the if it did talk about as obvious as as applied to that statute so again we're just a three judge that you are going to have situations where intervening supreme court or higher court precedent is going to undermine existing circuit precedent but do so without clearly over rolling or abrogating the prior holdings clearly that's certain social workers state employees social workers and the intervening supreme court precedents in those cases did not deal with social workers did not deal with the specific state agencies they actually just dealt with immunity for court reporters and for prosecutors i believe so so they they were like this in that the the literal holdings from that supreme court the supreme court cases did not undermine the statutes or the  exact issues that were that were part of the th circuit precedent but what miller said was that doesn't matter the problem that you have is courts are bound by not just the literal holdings of higher courts but also their mode of analysis interpretation of an immigration detention statute that says may detain is it plausible to interpret that through the canon as requiring periodic bond hearings you were referring to these others that you referred for thirty one days that is correct but as i was saying miller began he doesn't require it to be the exact same statute or the exact same issue it's the analytical reasoning or clear that they were covering across the board you know that's the government's position but i'm i'm finding difficulty of how when you contests context finding that there was no reasonable way to differentiate between the two so they have to extend it and then the series of rodriguez cases extended that still further the cost us holding in the do folding to apply to those other two dollars detention statutes and re hearing doesn't appear in the statute the words six months doesn't appear in the statute so that is why i position is that this is directly comparable to what to what the supreme court addressed in jennings with respect to one thousand two hundred and twenty six say where they said yes it's ambiguous discretionary may detain language is ambiguous but you still have to interpret the statute it's still a statutory interpretation tool you don't get to just spot a constitutional issue and rewrite the statute as you as the court would prefer which the jennings quote says is what the  circuit did in the rodriguez cases with the i mean the concern and i think this is the same answer that smith is a ridiculous thing is there is there is no shortage of cases in which the supreme court has told us that we're doing statutory interpretation wrong but that doesn't mean that we use a three judge panel than to go out and disregard every statutory holding from the circuit on the ground the well known years of supreme court case that tells us we should do stuff for interpretation right you know and so concern the difference here is that as i said we we have a clear word from the supreme court that's much more recent than the th circuit precedent issue here do if it's much more recent and as i'm as i said it's it's not just talking about stuff for interpretation it's talking very specifically about statutory interpretation in the context of applying the canon of constitutional boykins to immigration detention statutes that have discretionary made to ten language so i mean this is a much clearer conflict than oh you know the supreme court clarifying that statutory interpretation should be done somewhat differently this is a clear conflict between two different ways of doing it with i would argue equivalent statutory language and there's just no way to circle that square so to speak twofold the st being that the supreme court already addressed the question and clark of whether once the canon of constitutional avoidance is applied whether it can be reapplied and have the statute interpreted in a different way because of perhaps some slightly different constitutional concerns and the supreme court's answer that that was emphatic and the answer is no and that's because as jennings reiterated the canon of constitutional avoidance is the statutory interpretation tools so if the statute doesn't differentiate between different individuals which of constitutional avoidance interpret the statute to differentiate between those those different individuals you know i think that argument based on clarke has a fair amount of force but unless we agree with you on joining us i don't see how we can get to that's correct your honor i would add that the zavvi doesn't clark contradiction with a doof strengthens the conclusion that jennings is clearly reconcilable because i think it is all part of one broad problem which is that we have  line of cases from the supreme court applying the canon of constitutional avoidance to what the immigration detention statutes savi das clark and now jennings and we have a line of cases from the th circuit using the kind of constitutional points and applying it to the immigration to tat detention statutes with cost of custody on to for and then the rodriguez cases and they are handling the cannon in completely different ways and are coming up with completely different results and i would note that  between the two the supreme court's version has to win out here particularly where the supreme court's decision in jennings has directly overruled the rodriguez decision and has explicitly abrogated casas interpretation of  is requiring bond hearings so really what we have here is we have a clear line of cases from the supreme court that are consistent that apply the can in the correct way and then we have do which which just does not comport with with the other cases and i would good morning good morning your honour's michael kaufman on behalf of the plaintiff pallies you are at the outside here i'd like to clarify that i think the dispute between the parties here is actually much narrower than it may appear at st blush both parties agree that section one thousand two hundred and thirty one a six authorizes release both parties agree that the government must have procedures to determine whether to exercise that discretion to release under the statute and both parties agree that there has to be a determination at six months as to whether detention be on that point is justified within the statute the only issues of dispute is who conducts that determination whether it is a d h s s official the jail enough already or a neutral decision maker  immigration judge and what standards apply at that six month the terminations the resolution of both of those issues your honour's is controlled by this court's decision in june of two now the government argues that you've is clearly irreconcilable with the guerrero sanchez shows not only that you've is irreconcilable with jennings v rodriguez it shows is indeed the best reading of the statute even where this court writing on a blank slate now here today your honor and in their thirty one a six in fact authorizes release on bond so both statutes for all significant purposes are identified identical in terms of their operative language if that's the case and the government concedes that sections  detain it doesn't say shall detain like those other two statutes unlike those other two provisions try section one thousand two hundred and thirty one a six does not have an express exception that limits the circumstances in which releases authorized under the statute and and profound constitutional concerns as this court described them in juve posed by prolonged detention without adequate procedures counsel i suppose the jennings did reaffirm  extremely rogering only right i mean that the court said it was a notably generous supplication of the the question is it what we have here is something that goes would you agree that what we have here it goes pretty far beyond the view to us as an interpretation in terms of you know reading this whole procedural requirement into this i would just like to point to the court that in the in the justice briar's majority opinion and advice he contemplated that there were two different constraints under the statute and this is towards the end of the opinion justice prior lays out  should evaluate claims of unlawful detention under the statute and just a virus that st the court should look to whether removal is reasonably foreseeable if it is not in the court should order release but then the court goes on to say this and this is quote and if removal is and ninety nine dollars so what justice by are saying that even when this ad by this limitation is satisfied that when removal is reasonably foreseeable there's a secondary condition in the statute namely that the government has to assure that they're locking people up based on some sort of danger to the community well that is precisely what youth does it operationalize is the akon strain under the statute that is contemplated expressly in this ad by this decision and your honor there's nothing unusual about there being two different constraints under a statute both of which have to be satisfied for for the government to exercise its authority under that statute there's there's nothing man magical about the canon of constitutional avoidance it's simply another tool that courts have to discern congress is intact and just like a core can apply the rule against surplusage to interpret a statute twice if necessary to avoid reading in multiple sets of words out of statute so too can a court apply the canon of constitutional avoidance twice when addressing two different constitutional problems that it's attempting to avoid through a plausible interpretations of the statute and that's simply what you have does here is use the constitutional avoidance again and to again avoid the profound constitutional concerns posed by linking detentions under this statute without adequate procedural possession the other issue i wanted to address your own of the government raised here today is whether whether the court's decision in truth is in any way in conflict with clark v martinez and as your honor alluded to this was an issue that was fully briefed considered and rejected in june of two so i don't think it's properly before the court but i think it's important to emphasize that the government simply misunderstands the  the statute doesn't distinguish between those two groups of non citizens the same statutory interpretation that we adopted and side by just has to apply equally to deportable non citizens you can't have the statute turn into a chameleon depending on the identity of the li igant before that judas fully consistent with that principle it adopt a uniform interpretation the statute that provides that if you are detained for more than six months you get a bond hearing you get a bond hearing and is that now in due to the government advance the argument that mr himself was in total to last or procedural protections because he was not a lawful permanent resident and this court rejected that argument because it said we could not educate the claims based on his individual immigration status because there's  based on national origin where nothing in the statute supports that interpretation but again your honor that's not what you have to does it is a uniform interpretation of the statute that applies to everyone equally subject to the statute  because nothing in jennings purports to change how the avoidance can apply indeed as your honor noted it reaffirm the canon of constitutional avoidance of the application to dismiss very statute  makes clear not only that this statute is susceptible to limiting constructions under that statute but also that in cases where there is statutory silence in a statute where it's actually doesn't address issue it's permissible for courts to use the avoidance game and to construe that ambiguity to read in protections were necessary to avoid serious constitutional problems so your honor i would again take issue with the any notion that what jennings was doing was release through bond hearings and didn't go any further than that your honors i'd just like to also briefly turn to the question of what standard of proof applies at prolonging detention hearings under ju to as we've said it forth in our brief and we believe both the statute can be construed to require those particular texans but this court in seeing a stablished as a constitutional matter the due process requires the government to bear the burden of proof by clear and convincing evidence at prolonging detention hearings under the immigration laws in saying this chord held unequivocally that quote due process requires a heightened burden of proof when somebody is liberty interests are at stake and for that proposition it cited cases like superbly oklahoma like adding to the texas those are all due process cases divided decided by the supreme court unless there was any confusion on this point in saying the court went on to conduct prejudice analysis to see whether the due process violation required a new bond hearing and at that kind of prejudice analysis typically only applies to constitutional clicks now you know i think it's interesting if you go back and look at the history of  with prolonged detention cases even before saying you will see that this court has consistently looked at the question of burden and standard of proof as the questions that are constitutional and statutory in nature to go way back to two thousand and five this court decided a case called where ordered a new bond hearing for someone subject to prolonged detention under sections told twenty six dollars e where it the government had to bear the burden of proof at that hearing the reasoning in johnny is sparse but the only authority it cited for the due process violation by placing the burden on him at his immigration court bond hearing and there this court declined to reach this issue finding that the litigant could not establish mr prideaux remember could not establish prejudice for this alleged due process violation so i think if you look back well over a decade into johnny through predator america and through saying this court has consistently looked at these issues of standard and burden of proof as settled by the due process clause and because the supreme court expressly disclaimed that it was deciding any constitutional indians issues in jennings b rodriguez that decision cannot disturb this court's holding and saying that those procedural protections that the government must bear the burden of proof by clear and convincing it reading too much into it i'm not sure you need to go that far your honor i think what you have to do is look at the analysis that the court applied and whether it is in fact clearly irreconcilable as your honor alluded to and this court has referred to that standard as a high bar it's not enough that there must be you know quote some tension with the intervening authority or that the intervening thought even cast doubt on on this court's published prior decision those are not enough for this court for this court to say that intervene authority is clearly irreconcilable and i would submit your honour's that the government can't meet that very high burden here given what the supreme court said in said ingenuously rodriguez unless the court has any further questions i'd just like to end by emphasizing that always seeking here is for this court to enforce a rule that's been in place in the th circuit for more than eight years without and senate and the relief that the injunction provides is modest all it provides is for a bond hearing in which someone can ask to be released if there is no good reason to continue to keep them locked up the injunction therefore prevents against the needless detention of class members and the harm suffered by their family members and communities while they're locked up as well as preventing against costly  that unnecessarily burn the immigration system and the relief that the injunction provides is profound based on reporting that the government has provided the injunction approximately two thirds of our class members who ha under the plane junction for whom we know the outcome of their bond hearings had been found by immigration judges not to present a danger a flight risk one thousand of their detention and ordered their release on bond so we would urge this court to reaffirm its holding in june and in saying and ensure that the government continues to put provide these critical protections that prevent against the unnecessary unlawful deprivation of our class members of liberty interest thank you all right the government accurately that section twelve thousand two hundred and sixty eight the regulations do provide for bond hearings in some circumstances but that doesn't really have anything to do with what we're talking about here there is no doubt that when a statute gives an agency discretion the agency can pro regulations to assist them and exercising that discretion what we're talking about for the canon of constitutional avoidance is statutory interpretation and what does the statue require or more more accurately what can it be plausibly read to require and i would note that six is ambiguous but it's not ambiguous with respect to bond hearings and that's the key ambiguity in a statute does not give the court license to rewrite a statute as it pleases to quote jennings that is not how the canon of constitutional works so when you're when you're applying the canon the ambiguity you still have to interpret the statutes of the ambiguity has to be related to your interpret it and what supreme court said in jennings was made detain may release that's not ambiguous with the on the question of mean that there's just no limitation at all which would raise a serious constitutional concern or if you read the statute in light of its purpose and in the context of its purpose and this is a point that justice scalia makes and clarke quite clearly if you read it in context clearly the purpose of immigration detention is to ensure that people show up for the removal proceedings to ensure that they show up for removal it's not criminal it's not punitive so that's where the significant likelihood of removal in the reasonably foreseeable future believe that this meets that clearly irreconcilable standard i do acknowledge that it's high bar it is a high bar but i think if you look at miller v camming what the court said met the high bar there is very comparable to what we have here where it's not a direct statutory conflict we acknowledge that it's different statutes different questions but it's the same problem you had in miller gammy where the analysis is wrong and i would argue it's actually even more directly irreconcilable here where it's in the context of functionally equivalent as the other side has knowledge of the functionally equivalent immigration statute ok all right we think both of you for your fine arguments we appreciate it you're both excellent lawyers and that makes our job easier