project in new york we represent the petitioner not a raja to move to the government and uphold the four and a half year detention of my client a torture victim from sri lanka in this case the court would have to do three extraordinary things first it would have to construe a general detention statute to authorize indefinite detention and ignore clear congressional statutes that specifically authorize prolonged attention on national security grounds but which don't apply here second this court would have to disregard the canon of constitutional avoidance and reach out to decide a complex question of constitutional immigration law and finally this court would have to embrace the allegations against my client even though the government's own immigration courts have repeatedly rejected those allegations now turning to the first point your honor congress has provided ample at dorothy to detain on national security grounds in two different statutes but it's required some procedural protections that a company that attention and this reflects a common sense idea that if we're going to lock people up for years without trial there ought to be some procedures in place now just last year in clark the martinez supreme court considered a general the tensions that you unfounded insufficient to authorize indefinite detention and the supreme court looked to those same specific statutes and contrast of them and said the detention of alien terrorists is a special arrangement authorized by a different statute court to do here what the supreme court did in clark now there is no dispute that my client's removal is not reasonably foreseeable he's a torture victim and there's no dispute about that in fact the cigarette marks are still visible on his body as the psychiatric report notes i think it's eighteen to twenty and he has an unappealing grant of relief under the convention against torture from the immigration judge in fact the judge  asked the government what its position was and the government declined to contest it didn't contest it on appeal so we know what's going to happen he can't be removed to sri lanka there's no other country that can take and there's no other country where he's ever live then his removal is not reasonably foreseeable and he is entitled to release under that vidas even though he's continuing to litigate his integration case i take it you are not questioning the right of the immigration authorities to condition his release upon adequate terms and conditions no your honor we are not and what were the terms and conditions attached to the twenty thousand dollar bond that was initially set back in i guess it was two thousand and one i don't recall the precise terms but they were there was nothing particularly objectionable about those conditions your honor the only issue really is obviously the bond was set so high that it was impossible for the person to pay it that might court if it's an issue that arises it's not an issue in this case because we don't have a bond order in fact we tried to pay the bond order back in september of two thousand and four and the government refused to take the money and then issued a new decision saying we're actually detaining him without bond yes and i assume that you still be willing ready and able to pay the bond or of meet other conditions yes your honor absolutely and as we made as as we made a clear in the motion he would be willing to pay a substantial bond and he would also be willing to submit to electronic monitoring which was not part of the original conditions we don't think that those things should be an issue in this case because he's not a flight risk but we certainly would be willing to accept reasonable government has interpreted it would be the district director i think that this court ruled that there was no statutory authority to detain him it would be to the district director to set those conditions and in other cases  conditioned upon the granting of a reasonable bond on terms and conditions and that the district court would retain jurisdiction to oversee the question of reasonable mr set by the district director honor i think the district court could retain that jurisdiction i think this court would also have the authority to retain that jurisdiction or not usually in the business of setting terms and conditions the release that's what our district judges do but i guess my question really is one of power under one of the great rivers issued does a federal district court have inherent power under the heaviest corpus statute to do what i suggested yes your honor the great writ is meant to be a flexible remedy petitions and immigration context have done over the last ten years or so since one thousand nine hundred six but i do think that if the court is inclined to do that we would really request that there be a that's a strict time when it imposed on that on the release and say the law provide with regard to an education of the underlying immigration case as i understand it there is no provision in the regulations that sets a time limit on when the attorney general must decide the question that has now been certified to the attorney general by the chairperson of the board of immigration appeals that so are you asking us to order a judicial time limit in the absence of regulation or statute by which the attorney general must issue his decision you know your honor in this case when we're talking about the remedy that we're discussing now you are absolutely correct that there is no time period and i don't think that that appropriate course would be for this this court to impose that time period instead i think what the court should say and actually let me back up for one second there is the first question as you rightly point out there's no timetable for the attorney general just  we all know that ernie general is a busy man and might take a long time apart from that your honor the tourney general may just order every now and that's what the board of immigration appeals said and under the government's theory of the case he can be held even if it's only being only for background checks or for some other trivial purpose so let's say the attorney general decides in our favor but remand or or remand to apply different legal standard or who knows what could happen he'd still be detained during all that time well i'm assuming that we're going to or that we would be ordering in our hypothetical we would be ordering his release but i guess where i'm really going is what happened to the underlying immigration case it's not clear to me in reading the supreme court decisions what is contemplated that must occur is there a six month review and if so by whom who does what with regard to these ongoing immigration cases with respect to the underlying immigration case i don't believe there is that if i'm understanding your question right there i don't think there is any authority about how long this case it has to take it only about how long the people can be detained while those cases are law if we were not to order him released then those cases would require to heriot agree views no longer than every six months right under that national security detention statute but i think if and i apologize if i have no i may have confused you counsel i apologize but i think i understand your position that way so so if the court order says really i don't think the court needs to say anything about how long the attorney general can take or how long the whole process can take on remand if we lose we will seek through that and through that process and if he ultimately loses and if somehow it's determined that there is some country that he can go to then he could be you know be detained then but if there isn't and he wins then he should remain out and that's that that's all the relief that we seek your honor  it's hard to to take a petition for review when you win yes your honor that's true and that's the army in the circumstance you one now twice before the immigration judge twice before the board of immigration appeals if honor i guess i want to talk about the delay in this case and how it i think is relevant to this question about the remedy because now i think i think for i want to say there's at least four opinions in all of those cases it's eighteen months and why it's fourteen months in while she ashcroft and here it's just much longer it's thirty months in this course mission into johnny here is i think it's fifty two today it's fifty two in eight days or something like that today so i do think that this case is extraordinary and i think that this court can and can rule that in this case the delays excessive particularly where the petitioner cannot be removed to sri lanka no more questions about the statute i think turned to the question of facially with intimate and bonafide certainly to be clear is that we have two distinct ways in which the court could rule for for us one way is that the statute doesn't authorize prolong detention at least where there's delay and they link can't be removed and if the court doesn't accept that argument ours sort of back of our legacy even if the government is correct that this is just reviewable for case legitimate and bonafide reasons and the statute does authorize historical his corpus doctrine we cite professor newman's article in our briefs which makes clear that there's always been review at least for detention cases there's always been review to show there's some there's some evidence in the record there's something to base  on and here the there really isn't anything i mean nobody in our government can vouch for the reliability of the allegations against my client you know i asked the agent is this precise question the agent didn't know if the informant had personal knowledge of the allegations or things that he did come from somewhere else he didn't even ask so there really is no evidence at all on which to base the conclusion here and i think both the government the government i think the immigration judge's decision and this is this is i think important the immigration judge found that agent credible i attacked the agents credibility for a variety of reasons that i think i don't think we have to go into here but credibility and the immigration judge said no i find the agent credible however that being said the information that the agent was accurately conveying according to the judge is a different question it's a different your client but your honor but i do think that there is a there's definitely a two step approach here and the agent the judge found reliable and credible rejecting my arguments about that but the underlying informant he found not to be credible well can you help me i'm i'm looking at the administrative records pages forty eight and forty nine which i think is exhibit that's mark also marked as exhibit ten and in that there's a paragraph that begins where reliability of quote the asset and quote presumably the informant and that shelter himself had previously verified some of the data given to him by the informant schultz testified that he had no reason to doubt of the source the court finds his testimony to be credible having said that however schultz is testimony regarding the unquestioned reliability of the information provided by the informant is not undisputed is that the portion i don't think the courtney's did delve into all of this to find because the immigration judge and the board have now agreed with sort of my account of this information right all had to do the information that was verified all had to do with the smuggling route in artistry lanka then it's not true that he has to be in league with them in order to get out of sri lanka and we did it with maps and we had an expert who consults with the state department and we looked at it and it was perfectly clear he said this is one of the most heavily government fortified parts of the island in the whole country so i think what it suggested to me was that the informant and this is an immigration judge said this is a possibility that the informant is somehow tied to the smuggling network and i don't think you have to decide the case but i think you can say where the informant is objectively wrong about the place where he's from also about this phone call which the judge didn't talk about in his decision but i think was very important and that the informant said that michael had with another person made a phone call and threatened some third person well that other person some third person i understood the record to be that it was alleged that your client had made a telephone call while in custody to canada either engaging in a conversation about a murder or directing that such a murder occurred and that the victim of the murder was the informant absolved it did i misread that well i don't think actually that you could tell certainly you can't tell from the reports and i don't think that you can tell that the victim is the informant himself if you read the record i read the record and as i remember it i don't think that was that that has all the allegation was there was a conspiracy other alleged conspiracy to murder somebody in canada but that's about as specific as it got that's right and so and this was important because it wasn't clear that the informant again had personal knowledge which of course he would have had if he were the recipient of the phone call right but the person with whom my client is supposed to have made this call is a woman she was detained at the same time in the same facility it is gender segregated they don't meet in the same rooms they can't make phone calls together you can't even make a three way phone call from that detention center i know i tried and so you know it's there's just there's just no basis for the allegation it's simply wasn't able to explain how it was true and the immigration judge i think took this whole thing into account and said i just don't believe it you know and we know that if there was a serious terrorism threat arising from this case an immigration welcome to judge which gerald into the into the strange world of immigration law my commiserations but let me if i can first your honour's talk first about the forest before i get into the trees because i think this is very important and it i partly in response to the introduction by opposing counsel and that is that ultimately the point here is that aliens status matters the entire immigration law and the jurisprudence attached to it depends upon an alien's status goes from lawful permanent resident on the one hand always down to the riving and like mr another rogers knocking on the door basically trying to get into the country uninvited without papers etc and their status all the way through this with respect to this particular case and detention authority congress does of stablish three separate statutory schemes for the detention of aliens all geared specifically to and aliens particular status and the case law is instructive with regard to this case and i'd like to talk about that briefly those three basic schemes are the one are there we haven't written that stake here and that's i have a section two thirty five twelve twenty five which deals with the writing aliens the other is it to thirty six  twelve thirty one post final order removal detention authority lost them altogether and hence their status changes and thus based on that status the court then interprets of the interpret ins obvious and court the martin as the limit way whatever you want to say that would not extend some form of this to helen's who are in the situation both and they and the key to that analysis your judge is the more of a scam because they're in it with aliens in a different status yet having a final removal order the supreme court did not mention the reasonableness interpretation of statute as they didn't study to say incorrectly martina's instead went to the authority vested with regard to these state unique circumstance of annealing in this case a lawful permanent resident who was in proceedings and did not yet have a final order and they didn't do the same analysis there was nothing in the reserves nothing i can read from that case of what authorized indefinite detention that's exactly right and has that they did define indefinite average basically is our discussion let me read to the part of the brief by referring to average it made in the court did not as not a right to try to infer restrict either its holding with reason to those cases where detention falls within the average or median length of time so far so good necessity by referring to average and made into tension times the court implicitly acknowledged that there would be shorter than average and longer than average attentions and disapproval of the average and median necessarily covers the short and long detentions i go into a mathematical equation to determine average immediate does it make sense well it what it says is that you can never have and that the government can detain somebody indefinitely in your theory because you're saying whatever the number falls on the scale of the court wasn't visioning that but by the circumstances in which the italians placed ok now in which if i can make that point before you go in that is that he has a proceeding that has a me and ok now here we are at this proceeding taking your point he has done before the j twice once in front of the b i twice normally the proceeding would be at an end there and if i was reviewing your statistics today from now on the grant of convention has torture relief and i believe the point but i can't claim only protects removal to sri lanka not to any other country and in fact the regulations articulate and twelve point seven thing that in fact and it puts the put ceiling on notice even if you get cat protection to a particular country we may remove you to an alternative country if in fact you can find us pursuant to the statutory skiing in twelve thirty journalists my point of mentioning cath was because that relief was so rare he also obtained silent relief so for so when do you think it's reasonably foreseeable regard to this point if in fact he's not a navy and is not an alien who has a final removal order that can be executed enhanced through that process determine whether or not there are alternative countries to send him if you know if he is in process where does this alien get the constitutional right to say my due process rights are now violated because of the length of my detention what you're doing is taking jurisprudence that's been uniquely woven into a status of the nail polish order post final order  song that can bleed down into other status into other circumstances and that has never been done by the supreme court and all to least never been done by any court other than one who says the status doesn't matter because we're so upset by the like the detention and the potential hypothetical potential of man facts sounds to us to be horrible and it just horrific i can't imagine being detained for four years four months so long time but ultimately he's arriving italian and came to this country without invitation and has no right to enter bicycle if i understand the government's position correctly the only process through which the alien is do here is whatever congress has provided there is no general due process right to be detained nature of these detentions what of course refrain or restraining the secretary did just from retaining someone i left in fact they've got some six some significant findings there are national security within the stake and that gets reviewed yes corpus review inappropriate ways of course it's outlandish to suggest someone would go on for ten years i'm just suggesting that someplace somewhere there has to be a constitutional right to skip a generation for this type of alien and right now the case law is not their home and what we have to rely on ultimately is that the discretionary authority granted by congress to these put to detainees arriving elian for the and for the burden that these aliens have on them to show an urgent humanitarian reason or or a significant public benefit for their release and if there's no no national security danger or community danger that they're still in the exercise of discretion and that's the law in this circuit as per wank cited by the district court judge although that was in a  already why do you think congress would put a stronger and put more restrictions on those who they consider to be alien terrorists than the people arriving every day in united states why shouldn't specific statute involve the patriot act and other stature to refer to that i refer to attorney general certification in the six months reporting crime control over the general section i'm not sure that they're apples and oranges i do think that  certify and every six months has to provide some evidence of why the detention should be continued why would congress put those requirements on those for those people running high stakes whether there are as a national security reasons to believe that he is in fact a danger to national security hence the protocols of protection because that is what the statute then provides the attorney general i guess with the discretionary authority to release the alien on terms and circumstances that arise if in fact the district court judge is going to be the new f o d the field office director and order his release does if in fact circumstances change is i should now to report to the to the district court judge  to the executive but in fact you don't detain many people when they come in the united states about thirteen percent of those threats about thirteen percent get the tank that's right most of those detentions even of the court of the supreme court last about a month maybe as the dilemma post nine eleven when there are allegations of association with affiliation with regular recognized in street and designated foreign terrorist organization it's a delicate the lemma for these field office directors directors to make this parole decision it's very difficult in this in this circumstance we've got credible evidence or cited quotations from the record from just moments with regard to the circumstances of the testimony about this this person which has now been rejected and now four times ultimately however just as in a criminal case i quit all of a criminal charge does not mean that there was no crime official evidence to proceed nor does  anonymous letter and none of that was complete problem and in fact when they were pro gun cross examination i would say that the officer showed a startling lack of any information that was relevant to this particular applicant well certainly if we were here to to to argue substantial evidence in support of well you raise the issue that's why i'm asking for me you raise the issue and start understanding what i'm saying is that ultimately you make it there that the determination by the immigration judge that the expert testimony outweigh the field office director to simply say i am detaining him because i believe he is a threat to the community based upon the informant report and that we as a reviewing court on hevia cannot look beyond the simple recitation of that reason the facial reason as in order to determine whether or not there's evidence no articulation of the reasons there's not there's no discussion of what goes on there in this case he said this mailing has failed to provide urgent humanitarian reasons this illness failed to provide us with with the submitted significant public benefit in his release plus i've got an  e agent who's who as you quoted from the records sincerely believe that the that the source information was legit and solid and proved in past circumstances and that this that this was a national security circumstance with a guy that could in fact that in addition make a threat these are circumstances where an ice age and believe that their efforts may have outweighed it but nonetheless it was still granted say look we're going to put a guy out into the into the public domain that has these circumstances when he has not otherwise proved eligible for  for years ultimately political pressures have to be brought to bear but that's for the executive branch to determine if you has no constitutional climb your honor you can't create one out of whole cloth and it's him it's improper based on supreme court judge prudence to although this may not upset the applecart with regard to this the nature of the status of an alien this is a very important case with regard to keeping the status of aliens throughout the immigration  and it's impossible to reconcile reconcile two johnny with the government's interpretation it is also exactly contrary the government interpretation to judge boxes decision and why and obviously under their interpretation he can be held forever and i just i just can't be right think i do also think with respect to alternative countries just very briefly your honor i don't know what alternative country there would be but this court doesn't have the second gas authority of the district director or whoever in that regard your honor the question is whether it's reasonably foreseeable that even if there could in theory hypothetically be sound third country that would pop up and offer to take and that's not reasonably foreseeable and was understand his understand the government's position the the process by which a d h s s would try to identify a country besides sri lanka who would take him has not yet been triggered because that won't  country it was in those cases the eastern europe would not take the aliens back notwithstanding the fact that they were deportable based upon their aggravated felony conviction yes your honor but this court can make and i think this court can look at the history of this case and see he's never lived in any other country and say it's not reasonably foreseeable now the government can to continue to try to negotiate whenever whenever it feels it appropriate to do so third with respect to points about whether he has and your constitutional rights at all first even if ms i the supreme court and vera are entirely good law and he has no constitutional rights ok their interpretation still requires the indefinite detention of people who unquestionably do have constitutional rights because the statute governs all inadmissible aliens and there's no doubt that at least some inadmissible allianz under the statute do have constitutional rights even under massai if you enter the country without inspection like an illegal border crosser you could live here for up to two years and still be subject to the statute as the government interpret similarly a returning lawful permanent resident can be an alien seeking admission under some circumstances land in the present via is the one thousand nine hundred two supreme court case about that it says they have due process rights and so the government's i just want to know that the sixth circuit in rose alice garcia on bank said that ms i constitutional force is no longer sufficient to authorize indefinite detention and so it's obviously a serious constitutional problem are all different ways that the court could do it but i don't think that the court has to address that question clearly is the serious constitutional question and this court should avoid it if you want things briefly like to remind the court again that process that we're doing it under or whether it's you know taking the whole thing all together they do some record of you if you look at berra and you look at the other as mendez the court looks and says yeah these are criminal convictions it is true that this person has a really serious dangerousness problem and here here it just wouldn't hold up the same way to last things i i really would request a ruling on the motion and if the court believes that we're likely to succeed on the merits that psychiatric report on the record is from september of two thousand and four that and it's been a long time since then and it hasn't gotten better and i would just really request that the court rule on the motion if the court is inclined to grant relief in this case that it find a way to do so quickly for my clients sake and and i do think there is something that the government invokes the specter of post nine eleven world we all live in that world but there's something troubling about the idea that my client was repeatedly tortured in sri lanka because a very bad evidence that he was a member of the l t v which was false he's a farmer from sri lanka he's not a terrorist now he's come to this country of course we haven't tortured him but he's been detained for four and a half years under the same kind of really bad evidence and it can't just be that putting the t word in the air and saying terrorism is enough to detain somebody for four and a half years and if the court doesn't have any further question