thank your honor may it please the court i'm scott stewart of the f p united states if i may chief judge thomas i'm going to say five minutes for rebuttal in this case the district court issued a preliminary injunction barring the government from applying to tens of thousands of people a critical asylum rule that rule by its terms applies to an alien who enters attempts to enter or arrives in the united states on or after july th two thousand and nineteen the district court held however that the rule by its terms does not apply to a it was something the district court largely moved on on on with the with the thrust of of her own it was not the focus of the briefing by any by any stretch but that that in doing so that we that was certainly wrong the court should stay the injunction pending appeal particularly because the equities so strongly favor the united states in the in the public and the supreme court has already allowed this rule to go into full effect nationwide starting  rule however as we have indicated there is a lot of tension between the state of the state order here and the injunction in this case particularly on the harmon equable kind of concerns because this case raises certainly like in  in before that time but let's leave out for the moment the district courts claassen this they arrived before that time they were told that they had to wait and as a consequence of waiting now a new rule is applied to them which is going to make unfairly because and in a way that they can't comply with it i agree that that's that's essentially their argument your honor i would disagree that it that it really makes makes any meaningful difference to the equitable balance here  i mean this remains asylum is a discretionary benefit folks who are private never enter into the united states have no particular entitlement to any specific asylum eligibility rules or procedures they don't have right standing outside  that the th out tens of thousands or so class members who are at issue are really folks who fall in the heart of this rule folks who have spent a significant amount of time in a rd country there they're claiming that they really need asylum that it's a matter of urgency importan let's assume the rule applies only question as applied to this class and that's the merits argument and then for us what's what's the irreparable harm if we allow these this to go forward so would you walk me through let's assume for the sake got their ticket let's assume it's a number in a line walk me through what happens if in fact we allow this to go forward in the few months before this hair gets heard on the merits the government will be continue be able to assess each person they arrive to see if they fall within the rules terms or an exception if somebody is ineligible for asylum they won't be able to seek asylum they could seek withholding convention against torture protection that sort of thing and and pursue pursue term metering let's assume they've got a number they're standing in line so their numbers called and with the with the injunction we say yes you are you're asylum petition withholding cab whatever can be processed how long does that take the asylum so you're saying they pass through credible they make the required showing putting the rule aside leaving going to rule i can't really pinpoint a good sometimes those take irreparable harm to the government i mean aside from that that twenty six thousand or so folks that we have to unwind your honor the big point is the one that we explained at some length in our in our briefing and that is the system wide harm on the administration of this rule one of the benefits of this rule is it's quite easily administer ball you can find out relatively expeditiously whether somebody falls within its scope now we have this problem where we need to find out whether somebody is a class member there are a large number of class members were under injunction we have the risks that come with noncompliance of that and but at the same time we really want to apply this rule because it is very very important to to the executive branch's policy agenda so we're not going to just we don't want to just cavalierly or willy nilly not apply the rule to people but we need to comply if the injunction is not stated we would need to comply with the injunction we need to take this rigorous approach to find out is somebody class member or if they're not it's it's on the face of things as we are declarations explain obvious or clear that you know this precise group of folks are class members and that's you know we deal with them and done with it it's a process meanwhile i mean the other part of harm in the meanwhile it's perfectly possible that you're coming again an order from this court that the whole transport rule is invalid anyway so it's all the more reason why i mean that issue is still there so the the court invision that this rule would be in effect for some period of many months as your honor knows that takes some time so whatever this panel rules the rule will be the injunction will be stayed in the government will be able to continue applying it  and the injunction here prevents a government from falling into a large number of folks and also systematically undermines the government's ability to to apply it and compounds the very i don't understand that argument and maybe you can help me with so so the numbers call the the applicant goes to the border they have a credible fear assessment you find out at that point whether they're a member of the class or not  and they're referred beyond that or not so i don't understand this is it's no different from what's happening at the border right now on any case right there only additional burden is they have to ask the question particularly to twenty five two to twenty eight it gets at the burdens of identifying class members on a prescription perspective bases and one of the key points is make it makes is it's not so easy as having somebody who is on a list come up and just asking a single question it's it's adding meaningful time to each interview the need to ask a number of questions we want to make sure we have it we require a reason we want to make sure that somebody is actually a class member and they haven't been coached that just takes time improve increase the burdens if it makes their problems of just rescheduling interviews in the end those kind of burdens reduce the number of credible fear interviews world were able to complete the ripples across the system diverts resources and it's that kind of harm that it undermines the very aims of this rule is trying to get out which is alleviating the burn burdens on the asylum system through and through a inefficient and sensible mechanism so that's that's a system might harm the car del rio declaration is very good on that your hon r the these here c o n declaration also also it's a number of points in the problems of re interviewing a large number of people i'd also add that i just to get to one issue with with the i think the premise of your question your honor is that how the rules going to work and how on the ground people are going to have to have to deal with this your honor that starts from the premise that the government has no way of knowing at all whether any of these people were within the group but in fact there is a large record that demonstrates that there were systems set up the numbers and lists created and i understand that the united states government didn't create the list but it's using the lists and it seems to have not nonexistent but that was and they are clear ations begin from the premise that there is absolutely zero known about these people i don't think that's right your honor i think the declarations more begin from the premise that we want to make sure that we are correctly identifying class members these lists are not reliable we cannot vouch for them and we need to therefore undertake a proper investigation because this is an important i'd like to change the subject  site we haven't really discussed the merits of the district court's ruling but as we said at the outset it wasn't what the plaintiffs asked her to rule o it seems to me that in terms of the what they asked her to rule on was the merits of the metering practice with regard to the sub as applied to this subgroup and the question is do we look at the record ourselves with regard to that question even though the district court could weigh as to whether the they have a likelihood of information that was put in the record put in the record but there's i would say that there is ongoing discovery in the case your honor and in the cases proceeding that we see that that's still developing but the government has put in declaration declaration material other material saying look here's why we do metering we have legitimate reasons metering is categorically lawful we do it to manage resource constraints to to deal with throughput to deal with the tremendous multifold mission challenges that that we as a government face on the southern border my friends do make cut out but what i'm saying is that with regard to whether the metering practice is valid or not that legal ruling is that is the core now she did not then go on to look at the i  suppose the additional issues are well is this actually happening and what are the reasons why it's happening are those justifiable reasons despite what she says is that what the statute means and maybe all this pretext success basis i mean we're not going to just your honor because that's not what's before us your honor that is that that runs into other barriers with class white injunctive relief in this context and it's that it would be i think very inappropriate for this court to reach out and is that both parties quickly morphed into the merits and of the metering issue and i now understand why which is well that's what was actually in the district court your honor that i mean it was pages and pages of dispute in the area of argument in the district or bring this is something that's been evolving over the course of time now the government maintains that metering is just is lawful and that you know it's not you know law lawful period but again that's still going on in the district court the district court did not rule on it and not given the sole merits basis the discussion was just sure on she didn't rule on it and i you know here we are with this with this sweeping injunction and with it we're in one reason she may not have ruled on it your honor is that it is such a difficult issue to rule on in a way that would have allowed this injunction we maintain that she could not have issued a class white injunction had she tried to do so on metering the flaws would have been manifest how is this going to be rigged how is the metering question going to be resolved in the court below in other words is the district court going to issue some kind of summary judgment is going to summary judgment proceeding on the legality of metering out we have all this evidence or is there actually st going to be a motion for class certification that then are these happening concurrently maybe you can educate us on how that this record is report is intending to resolve both of those issues sure your honor i don't have a full picture at the moment but i can i can try to get that classification briefing on the main case itself is doing i believe several weeks time will be addressing the statutory interpretation questions of the immigration and nationality act that underlie the district court's motion to dismiss opinion as well as its interpretation of th court has before it as a question of whether to up and narrow prohibitory injunction that the district court put in place to address what it described as a quintessentially an equitable situation and that is a situation tha happened because the class members in this case did exactly what they were supposed to do and what the government asked them to do st they went to a port of entry to seek asylum as opposed to crossing between the ports the government told them wait you can come back when we can take you and they waited and then in a classic bait and switch the government changed the rules on him and said oh sorry now you're an eligible that there's i there's no in the district court points this out or says this explicit in her order there's no dispute that there that this rule couldn't apply to these plaintiffs the only question is does it apply to them on the face of the rule and it and it clearly does and so taishan of what the rule means although we think that the district court was correct in its interpretation of the rule but even if you think that the rule on its face applies to class members the injunction here was an appropriate exercise of the district if we i don't want it you do need a likelihood of success on some basis or we can talk about the act which is actually a very interesting question after a very recent opinion of this  are you supporting or can you tell us your best argument for supporting what the district court actually did and if you don't go into that how do we proceed stuart that you're on our we're arguing on three fronts i'm setting aside i do want to speak to irreparable harm because i think the government has not met its burden there but in terms of the merits basis for the injunction there are three grounds on which this court could affirm the district court's ruling that the all writs act that's something that the plaintiffs argue to the district court and it's something that the district court ruled upon and i'm happy to expound on that in a moment but it's incorrect that the interpretation of the asylum panel was the sole merits basis for the district court's order so they all reject is number one number two is interim of the asylum ban on its terms and my co counsel address that because that turns on the in statutory interpretation of the irony and that is something that the plaintiffs didn't argue but the district court did rule upon and the rd ground in your honor you were referring to this earlier is our likelihood of success on the merits of our underlying metering claims which we did a brief to the district court is in the record before this court and as there are numerous opinions of this court that state that you can affirm the issuance of the preliminary injunction based on any evidence in fact that this very relief that was issued as part of the preliminary injunction would be appropriate relief at the end of this case and this goes both to your question your honor about what about the terms of the rule and to your question your honor about the  is in the supreme court's words right it gives courts the express authority to issue such temporary injunctions as may be necessary to protect the court's jurisdiction that is precisely what the district court did it's i know that but then isn't that a complete end run around the standards for player interactions well i think it provides a court an alternative basis in unique circumstances to be able to issue an injunction to preserve its jurisdiction and i think it's narrower in that respect right plenary injunctions are not limited to preserving the court's jurisdiction to result there's nothing there's nothing about the court's jurisdiction that would require that the metering practices are what this case is about there are people who have challenging those metering practices some of those are subject to the rd country transit rule others are not the court could rule on the metering practices and go forward with that ruling but to use the all writs act to somehow freeze the state of immigration law lied to him or her and is removed from the united states will forever lose their right to have their claim heard on the basis of the law as it existed when they arrived in the united states so that if i buy that logic what the district court would need to do before it's even reached the legality of the metering which may well be lawful she has yet to tell us her views on that you would have to freeze the state of immigration law as of july th teen in all respects not just this one well i think if the government tried to change the rules again with respect to individuals who arrived in the united states and as my count my colleague will point out where the government statutory duties to inspect them for asylum were triggered that is correct but we're talking about a narrow class of people  right these are people who are told to wait and if the without this injunction they will lose their rights the court most importantly for the all writs act purposes will lose its ability to provide any effective remedy between that standard and the irreparable harm standard or is it just it an irreparable harm that because irreparable harm suggests that it's not reparable  and there and yet it is only one of four factors in the plumber injunction context and this is really a query because i it's possible we should have some briefing on this case because  it suggests this is all an open question but i don't really understand how the pieces fit together if your honor i think that's a fair question and i don't have a great answer for you but i think in this case in this circumstance i do have an answer for you and that is act and the likelihood of success arguments that we made below and that are in the record both support affirming the injunction ultimately and today today clearly the government has not met its burden of demonstrate administrating its strong showing of the likelihood that it will succeed in the appeal because it hasn't addressed either of those things it does not address the all writs act in its papers in a does not address the underlying likelihood of plaintiff success in america you didn't you know and you didn't injunction based on any likelihood of success or what this case is actually about which is the meeting with what you obtain the injunction what the basis for granting the injunction was just simply that the rd country transit rule  district court by its terms didn't apply to your clients because they had been metered that was the success that you were found to have there's been no determination on your likelihood of success on the underlying case and agree with that your honor but those arguments and the record evidence supporting it  the record in this court has repeatedly held that it can affirm a preliminary injunction based on arguments and evidence in the record that the district court did not rule upon i'm conscious of my colleagues time if i may just a moment speak to irreparable harm in the government's failure again to meet its heavy burden here of seeking the stay the government moved for a stay in this court and st submitted any evidence of irreparable harm three weeks after the injunction was issued so it would have been in place for that entire time period one would expect in that circumstance that the government's evidence would include some evidence of actual harm that occurred and george burns on as you indicated the declarations are instead all assumptions and projections there is not a single fact about the actual impact the injunction had during those three weeks there's no saying there is no statement about how it impacted the processing of claims during that time period there's not a single example of a credible fear interview or an asylum hearing lasting substantially longer there is not any data from a single court of entry or a single asylum court about any delays or any statistics about the alleged system wide delays that this would cause and the only conclusion can be that that's because those harms did not come to pass in those three weeks and there's no reason to believe they're going to come to pass in the short period that this court's going to consider the preliminary injunction which will be fully briefed in the next six weeks as the me honors probably before the magistrate judge and discovery matters the motion for a stay that was filed in the district court in the district court had not ruled upon before the government moved in this court is technically still pending in the district court i don't know but i'm i'm i'm guessing that the district court is not going to act on it until this court act the motion before it is obviously aware that there's a pending motion st day before this court as well judge ross had a question yes the question i have for you is it does seem to me that when we have a world in which the supreme court has told us that the rd country transit rule can be enforced and we're now trying to carve out of that some i think the estimate is twenty six thousand people to try to figure out who they are when they were metered that it just sounds very difficult to me that that would be reasonably possible to do your honor with respect to just the supreme court's stay of the injunction regarding the asylum ban it is not controlling here in any way shape or form right involved different legal claims right legal claims that went to the validity of the asylum ban whereas our injunction doesn't turn on that we believe the injunction is appropriate even if this court or the supreme court ultimately uphold the asylum i understand that but i'm but i'm talking about the difficulty of administration at the border because what i think the government is concerned about is trying to weed out who is a member of the class and who is not trying to comply with the district court's injunction but at the same time to be able to execute on the rd country transit rule which is certain supreme court has said they may do while those proceedings are at least now ongoing sure they're concerned about that but they have a burden th stays in effect sure in your honor i would point out that the government has has failed to take the most basic steps to minimize the burdens of that implementation and those would include two things just off the bat one is obtaining  waitlist that they rely upon to determine which non citizens they are going to allow to enter the u s to seek asylum because as judge burns on indicated that's at least a starting point it might not be the ending point and nd providing any guidance to the public about what kind of evidence they're looking for what they're expecting to have happen at these hearings because if you read the declarations the alleged parade of horribles that's going to happen is that everyone's going to ask for continuances to go get this evidence there's not a word from the government and plaintiffs have tried to engage with the fence council about implementation of the injunction about how this is going to go about but it shouldn't be difficult right an individual an individual asylum hearing last one to three hours that's information from the government's declarations you can ask the asylum seeker questions about when he or she arrived at the border and whether they were metered you can seek a declaration from an asylum seeker about those facts and you can cross check the asylum seekers names against the very wait list you're a lying upon to allow jewels to enter the country that to me does not sound like such an irreparable harm that's going to cause the asylum system you know to completely shut down during that certainly not trying the pendency of the merits briefing of this appeal so i  think that's the practical answer is that the whole asylum process is built to understand to discover facts about the individual seeking asylum this isn't such a complicated or challenging or difficult fact to ascertain and is marginal addition to what's already happening the only record before the court about the actual implementation and how this is actually been implemented was provided by the plaintiffs and it's the excerpt of record it's pages twenty one to thirty seven and it is a copy of an actual credible fear interview that was conducted and you can see there that there are three questions that are asked of the individual in that case to ascertain their class membership the long document like ten pages there's three questions that go to this point that your honor is the practical implementation of the injunction and that again is the only record before the court about how the injunction is being implemented that answers the question for your you know ok thank you  good morning your honor some may have please the court i'm melissa crow from the southern poverty law center for plaintiffs a polies in this matter as mr live noted with respect to the likelihood of success on the merits factor this court could affirm the p i based on one or more of free independent grounds i'm going to explain why the government has failed to make the requisite strong showing that it's likely to seek seat on the merits ban by its terms does not apply to class members who as a matter of law arrived in the united states before it was implemented the district court relied on the reasoning of its earlier decision denying the government's motion to dismiss and that decision found based on the plain language of the i n a that individuals who attempted to seek asylum at ports of entry were quote arriving in the us at the based on normal canons of statutory construction i guess the question is is it why would this be relevance because the district court did issue that ruling at some point that that ruling will presumably be reviewed but we can assume that that ruling is correct it still doesn't justify what happened here which was an incorrect reading of this country transit rule which does by its terms apply to persons who are now attempting to enter regardless of whether they have done so at a p time your honor at the government makes what we consider a specious argument about the fact that the plaintiffs essentially are arriving twice well they may well be arriving twice so the question go ahead ph four of its reply brief the government argues that it cannot read the government actually concedes that it cannot return asylum seeder seekers awaiting processing inside the united states to mexico render them subject to the asylum banus and that's presumably people cause it's illegal for them to return them to mexico and so the question here is whether your argument with that's the merits question the illegality of not having process on the st time and assuming as judge press is doing that there is a likelihood of success on the legal question that the district court ruled on with regard to the meaning of arriving how does that if one doesn't get to the legality of the entire metering process here help your argument with regard to the analogy another words if the metering was legal why are they not going to arrive a get well your honor our argument is that based on the district court's interpretation our class members are in precisely the same situation as individuals inside the u s awaiting processing because the government's mandatory right it doesn't matter why there were doing this or or whether they had any justification or whether it was preach ext you just i mean in safire poll i mean it's not an implausible argument but i'm just saying that we would then have to accept the fact that if these people were there a they had to process them regardless of capacity and regardless a pretext and so on and there for it was illegal not to process them another's we still have to get in some way at least to the likelihood of success on that argument is that right the government are argument is that the government was obligated to inspect and process them and that the government s obligations by metering the class members in that and there she is or it was invalid not to do it and therefore that's at least the issue that the district court didn't just side the legality of metering you mean a even the likely to of success reading by your analogy to the people who would be taken out of the united states and then sent back again your honor i got analogy but it only works if the if they were in mexico illegally to begin with your honor i'm not with with respect i would ask you to clarify the problem that you are a reprobate limb is that you cannot without and som respect getting to the likelihood of success on the metering sustain the way in which the district court decided this case because whether there is it whether this is as you relevant question is whether the individuals were arriving in the united states at the time they were metered and she's answered that question of alternatively i mean just to maybe say a different way than the district court here we have to we have two issues we've got a rd country transit rule the district courts not going to rule on the merits of that we've got on the other hand a metering practice the district court is at some point going to rule on that but has yet to do so neither of those have been resolved yet and so on what basis would your clients be intitled to a preliminary injunction when when neither of these rules has yet been enjoined your honor all you have to look at is the it based on the district court's decision is the language of the asylum ban itself the government's interpretation would essentially render superfluous the effective date limitation in the asylum ban by applying it to asylum seekers who arrived in the u s before the effective date and did not leave by their own volition it would also as i've indicated negate their statutory rights and subject them to brand new rules i'm really confuse right as i understand the government sorry i meant is that ok let's assume that as to just record sales these people arrived in the united states when they first presented themselves on the bridge and were turned back but they were turned back and that's also assume that there was no english you're going to have just signed the question of whether that was a valid turning back or not but if you're not going to decide that then you have to assume that it was ok to turn them back if you assume that then why aren't they arriving why aren't they simply going to have to arrive again now i don't see all that leads to is that the language that what i understood that just record did was that i said i'm not going to i'm not deciding whether it was i i told you what i think about arriving but i haven't told him whether i think there is a likelihood of success on the question of whether they're being sent back given all the facts and and so on was valid or not i'm not telling you that i'm just saying that if you look at the statute and at the regulation close of whether they were illegally turned back or not it doesn't apply to them are you defending that proposition i am defending the district court's reasoning and i think the kernel of your question goes to the fact that arriving in is different from metering itself so you don't have to rule on the legality of metering you only have to decide whether these individuals were arriving in at the time that they were but if they were legally turned back at that point then why isn't the government right that they're going to arrive again and that you they don't have any equities with regard to the fact that they were i mean i think the equities are extremely if they were illegally turned back as to why they should be able to go back to where they were at that point but if they were legally chargeback why do they get to go to to be treated as if they were in the country at the time when they were illegally turned back i think that would enable the government to benefit from its obstructive conduct which nice but if it's legal obstructive conduct if they were allowed to do it then why can't they benefit by i mean i don't before you before you leave i thought your argument was sensually and maybe imus misinterpreted that if you credit them as having arrived when they st appeared then the legal fiction is that they're going to quote situation as if they were in the united states and it doesn't matter whether they were turned back legally or illegally they preserve their place in line as part of the class and i'm misinterpreting your yes your honor so your argument in the just records logic is they were arrived they get put in this class and it doesn't matter if they arrive again or not or whether legally or illegally turned back they've arrived for the purpose of the statute so then that rises or falls on the statutory interpretation of the ins that's absolutely correct or other that's how i interpreted your yes and then the government would say no it's we legally turn them back on their arriving a nd time and injunction briefing and also in our state briefing as your honour's have noted the district school court did not rule on those grounds and the government did not address those grounds in their state briefing and that's true and of course we can and sixty two claim is that the defendant's metering policy exceeds their top statutory authority which is a question of law we argued in the alternative that either defendants have no in the record before you all right thank you thank you thank you honor just a few points in the in this panel's administrative stay order the court recognize that allowing the preliminary injunction to proceed could cause complications at the border or declarations in our briefing here do bear that out and explain exactly why that is and there is an enormous overlap as to all of those things and it's when it seems to me best to have the merits and including of the including the irreparable harm you know it at a point that we can actually absorb it so i don't think you should put any much stock in your i was there other than that this was what was going on on the ground and therefore just i'm making the observation your honor that our declarations and the points that are in our briefing does bear out that to basically to be an essentially in response to the argument that the district court was somehow prohibited from issuing any kind of ruling in other words it was sort of more of a jurisdictional type analysis than a merits one you have that exactly right judge  the court in part two of its opinion titled jurisdiction that began at page eight of the order and continued through page twenty one the court did proceed through multiple statutory arguments for why in the government's view it lacked authority to reach various issues at the end of that jurisdictional section part c it got to the all writs act pages one thousand nine hundred and twenty one and it literally begins with alternatively and goes into why if in the court's view if even if the statutory bars did prevented from reaching reaching things the all writs act would allow it to do so it's its merit section the preliminary injunction analysis shows up later pages twenty nine to the to the end of the opinion and the merits piece very short as it is is itself from pages thirty only about the rule scope that is definitely wrong given the state posture of this well it's not necessarily i mean again they arrived in if one buys you think it's wrong because you think that she was wrong about the fact that they arrived the st time but suppose they did arrive the st time regard i think our position is that that the rule doesn't apply regardless of what the decision well but then the question is whether for that arrival even if there even if there were a nd arrival there was still a st arrival and as to that arrival whether it was there whether they were legally told to wait they weren't they didn't ok you've arrived but because she's already decided that but maybe the government has the right to make you wait in mexico until we go go further my or my response would simply be judged on that whatever however however that goes the class here will still be entering attempting to enter or arriving in after the rules effective date and therefore would be squarely covered by the rules given the nature except the phrase attempts to honor i mean the rule by its i mean if you are would agree that if they haven't tried to seek entry in the united states i mean we think that the immigration nationality act is pretty clear on that coupled with supreme court case law on extraterritorial application that people standing outside of the united states are not now you are arguing about whether there isn't likely to have success on the interpretation what i'm trying to would sit on those reasons and the fact that those have different reason i'm going to be arriving in the issue is really a threshold issue in terms of are these the types of plaintiffs who could challenge the metering practices under the a district court has denied you motions to dismiss and so yes there's now a whole nd question of are the metering practices nonetheless lawful under the i n a has a completely different question that hasn't been resolved and there is no likelihood of success nobody is that issue we don't know we haven't yet seen the outcome of that no one's even touched that yet that's right judge press and to circle back to your question on on on on my opening part of the argument  there as i understand it there is not a discovery deadline and i don't believe we have a summary judgment deadline yet discovery is continuing we're still awaiting classification motions in the next in the coming days or weeks but on these issues if you are not going sit on your argument if you don't undertake to demonstrate a likelihood of success on the question of whether the arrival  i didn't i don't believe i didn't mean to say we don't contest that you are i was saying that that it's not relevant to the rules application the court doesn't need to reach that we have however contest the district courts motion to dismiss reasoning you know our state briefing here we say look you don't need to issues the narrow legal issues living side metering as their position is they fall outside the rule because they attempted to enter or arrived and they say whether it's relation back whether it's preserve your place in line the rule doesn't apply to your position is they've got to arrive again and the rule applies we are on the our our position is that people who never who you're position is st they didn't arrive right they didn't arrive and the statutes didn't apply them and it was enter i'm not sure about that you're on an attempt is i don't put the parameters of attempting to enter have not been flushed out thoroughly in this case so i want to be careful there what i would say is that the class of individuals who we're talking about here are folks who are outside of the united states they were inside the united states your position is it doesn't matter they didn't arrive and fall back down arrive again on the rule applies to them as a kind of where we are i think that's part of it your honor and i would emphasize though that folks who  they did attempt an er and so facially the rule would not apply to them unless unless the fact that they had to remain in mexico over overrides i don't think so your honor because i mean one attempt to enter u nder the rule it doesn't matter if you previously attempted to enter before the rule was took effect if after the rules effect you and i just did whatever you know ok thank you your honor or thank you all for your your arguments and your briefs and very helpful to the court and we'll be in recess for the morning