misery they has lived in the united states for twenty two years she has three children who are u s citizens and her husband is a lawful permanent resident she left the united states for only two days when the government tries to parole her into the country mexico and on return claimed falsely that you who american citizen as a means of gaining access she was arrested she pleaded guilty to the charge she spent sixty days in jail she was held temporarily pending her removal so let's deal with this case rather than some other cases tell us why why that is not a proper exercise of the jurisdiction of congress and vest in the immigration department well two points your honor first the court has to consider the consequences of its interpretation i'll return to that point to answer insofar as a rebate would be removed as she has been to suppose the government can answer this what about her detention for purposes of removal changed her ability to  were less direct as to whether congress intended to remove jurisdiction under twenty two forty one title twenty eight but that's no longer so and there's a real idea act you're not arguing that congress has parameter and this is this is the language of the real id act of two thousand and five statutory or non statutory come including section two to for want of title twenty eight or petition for review because this is where we could have started a cancellation of removal proceedings there is easily during those twenty two years after she got married ten years are fine reach one interpretation of the statute a unitary interpretation of the statute that would allow for a view to avoid those constitutional problems the same words can be given two different meanings for just two different categories ambiguities and in light of the serious constitutional problems that would result we think the court can read the statute to allow to the degree of review required by that but a suspension class if the court concludes that that's not possible and the court understates year we need to look very carefully at the language of the statute to see if there's any possible way to allow for review and if the court doesn't have any other questions at this time i'd like to reserve my remaining time for  morning your honor it's me it please the court my name is linda went land and i represent the respondents abilene in these hideous appeal and i would like to start off by just answering the question that i believe judge they may two of the immigration and nationality act does provide review for italians who are detained for purposes of expedited removal but it's specifically limits that kind of review it delineate because if a person claims to be a citizen of the united states who has been wrongly accused of being not innocent and or has a claim of being a lawful permanent resident of the united states i'm talking about things that aren't covered expedited removal proceedings fully in violation of the statute are you saying that there is no he's reviewing that determination well your honor i will answer your question and i believe the answer is there is no review unless it comes within the specific scope of two forty two to addressing questions such as that is to show lawful resident status or aliens previously admitted as refugees or if i leased but i would hasten to add that you don't have to address that question that's a hypothetical that is not involved in the well case in this case she has alleged violations of law so it least within the four corners of the complaint that do not fit these categories she claims that she is going to was detained if this was executive detention had to show that there was some basis in law at least some basis in law for the tension there's no question here that there is some basis in law for the detention because the petitioner was an alien with no lawful status in the united states and therefore immigration authorities had the power and the authority to remove her she simply complaining about the means that were used to remove her but she cannot deny that being an alien who entered the country illegally in one thousand nine hundred eighty four according petition by filing an actual application for justice and i believe that is conceded in the record your honor so there's no need to litigate matters that have been conceded and according to state department these reports and she would have had a bailable a somebody married to a lawful permanent resident as of sometime in mid one nine hundred ninety nine so she could have seven and a half years before her little proceedings thought to adjust your status but you mean she did not follow up on i don't understand your argument that she didn't have shows that she has conceded i believe she conceded when she was interviewed by the immigration officers that she did not follow up on the approved these a petition and the way to follow up on the visit visa petition would have been to submit an application for adjustment of status and there was absolutely left well i'm afraid that's what congress had in mind when you then acted the statute your honor that aliens would be able to file a petition for writ of habeas corpus but that the review would be limited to certain specified narrow issues and otherwise there would be no alien because dealing in was not removable at all on any ground and the alien was not somebody at the border seeking admission but somebody within the united states and there for arguably has time due process rights with respect to the immigration status then perhaps in that kind of case there might be a suspension clause problem but we don't have that kind of case here your honor we have it so if we were faced with that kind of case then what was what would around  if we just have to declare the set it unconstitutional or do you think there is a permissible construction of the statute that would allow us to reach those questions of law i'm the are we have the statute th congress has an act and that statute makes clear that congress did not want there to be hideous corpus review extending beyond the three narrow categories specified whether somebody is an alien whether they were in fact o removed and whether they can prove by preponderance of the evidence that they are a lawful permanent resident or somebody previously admitted as a refugee or tiley those are the only categories congress hammered home if that's what they meant really really meant when they stated that review would be limited to whether an order in fact was issued whether it relates to the petitioner in situations where the person is not claiming lawful permanent resident status or least status and then they said that there shall be no review of whether all and congress covered the territory by specifically saying both of those bases for review are barred so your answer to my question is the statute is unconstitutional if the circumstances arise in which someone  violation of the law but doesn't set one of those categories i don't know your honor because we don't have that case before us we only have the case of somebody to whom the statute is clearly constitutional because she does not contest that the already to detain her because of her unlawful status in the united states plus on top of that she is a person or was a person who was seeking admission into the united states who had not previously been afforded lawful permanent them the only basis for review was whether there was an expedited removal order issued and whether it related to the petitioner there was no jurisdiction the fifth circuit acknowledged over whether the order was lawfully issued against the petition cyr made sure i'm right about that collaterally attack the validity of her initial life but i did removal order and a nice circuit held that no such collateral attack was available but very interestingly part of the reasoning of the court's decision was based on the that would be existing if this were an initial hey b s appeal this elaine is bringing the kind of claim that we can't litigate here and i believe she was trying to raise a statutory claim that expedited removal didn't apply to her because of some those arguments so that's why it denied the petition for review rather than dismissing it but when it was specifically considering the expedited removal order and not you know any subsequent arguments arising after that order it said that we are not going to fossick in the details of this alien's prior removal because there are three narrow bases for jurisdiction and this does not come within any of them she states to raise a legal question arguing that she doesn't all but we do not have the power to reach that question because it doesn't come within the three narrow categories if we did have the power we must say i think i said in dick that if we did have the power then we would probably look askance at that question on the was we do not have jurisdiction to reach that issue because it does not come within the three narrow bases for remove for review excuse me this is only and they said donna was an alien order moved under expedited removal and did not claim prior lawful permanent resident status or prior permission as a refugee or stylee and therefore the court said we have to stop there we can't go any further and was the suspension class argument made in that case  believe yes i believe you're correct about that your honor i believe there was not a suspension clause argument so obviously that's in front of us today i wasn't involved in that case well the statutory issue was certainly involved but the suspension class issue was not involved and  i will proceed to the suspension clause issue but before i do i would just like to make a brief comment that the arguments understates dear as judge bear points out are really no longer valid because there has been l the court needs to go on to drest suspension clause first of all we would argue that there is an adequate and effective alternative means of review and that the petitioner could have thought relieved by seeking adjustment of status or turning herself in for placement in regular removal proceedings at some point before she made her trip to mexico and she would have the opportunity to raise her cancellation of removal claim and to raise her adjustment constitutional right to give her view of whatever question they seek to raise even even where congress plainly intended to obstruct the scope of a b s review to exclude that kind of question and hear both the nature of the claim seeking discretionary relief alternately and then sure of the claimant an alien at the border seeking admission with no due process rights regarding her immigration status both of those things the nature of the claim in the nature of the claimant are unprotected here now just one quick word about the i would just like to mention what the court said the issue in he was at the very beginning of that opinion they said the issue was whether the political of the deportation order may be tested by some procedure other than hay vs corpus that was the issue and i q a whether there was a p review available the court did not address the scope of hades corpus jurisdiction they did not address the scope of judicial review required by the constitution they said that only haziest review was available but they didn't have to address exactly what the scope view had to be because there was a good statute that applied there was a statute of eight hundred sixty seven which was succeeded by twenty two forty one ultimately which gave the court's power to address any violation of the constitution or any treaty or law of the united every time congress has tried to go one on a to restrict heaviest review so that violations of law would not be considered what the supreme court has done is to construe the statute otherwise to allow relegation on hey just review violations of law they did it and most well you start off with an arab american after you start off with there it goes right on down the line and and the message i don't think there's a supreme court case is really a health for position the government's taking th to limit review to the three questions that are indicated and even in clark which the petitioner so heavily relies on the court said that the canaan for of avoiding constitutional questions is not a matter of adjudicating those questions and it's not a means issue and given that we would contend that the scope of review is limited to the writ as it existed in seventeen eighty nine and under that writ the review was limited to whether there was some basis in law for the executive custodian to detain the petitioner and here there is indisputable eat a basis and want to detain the petitioner given that she is literally an alien or was an alien illegally present in the united states without any valid immigration documents given that there was some lawful basis to detain the suspension clause in cory's at an end and therefore yes your honor this government would contend you do need to reach a suspension clause issue here but if you find that there is no adequate an effective alternative to hey these three of you here and that therefore you do really need to reach the merits of the suspension clause issue you should hold that the constitution that the congressional restrictions that issue in this case do not violate the suspension clause because we do not have here an instance of an alien who claims that she that there is no legal basis whatever for her tell to by immigration authorities like the  central conclusion of which is what during the period before nine hundred fifty two from eight hundred ninety one thousand nine hundred fifty two the only review available and he asked was that which was required by constitution by the constitution further if we look at the my purposes would be better if flushed out to see what both sides position because there are certain i guess my view depends on what you say violation of law but that can have a very broad a very narrow meaning and some of the some of the allegations of the and that case the specific question there was very similar to the question here which is whether the petitioners were arriving allianz and the district court in that case concluded that there was jurisdiction to review that question and the court didn't review the question and concluded that in that put petitions was that the congress has limited hideous corpus review to a rather narrow group of questions and then the court cited the hideous provisions but i believe the government misspoke when it said that