praise the court frank sproles appearing for petitioner in this matter presents a number of issues and i believe it would be ok with the court i like to start with the two twelve see trial reliance issue i think clearly relief should come before the bar and i ask one hundred question is your client currently incarcerated he's the most patient client i've ever had judges been in custody for nearly four years you know the keys to the jail house since he's been in custody it is very important sort of aristotelian first principles here remember where this case began this is a transfer from hades corpus proceedings this was not a direct appeal from the board of immigration appeals in alley and withdrew his appeal and brought an action in the very first instance here we have a cause of action i e the heaviest that was never decided which is the remedy that congress has now repealed so we're in rather on charted wa in that case i believe the prudential arguments apply there's no question i did not raise the two trials the trial realigns in the heaviest action the hades action was transferred there's nothing to review it is our opinion that this course is clearly jurisdictional empowered to hear that it is a constitutional issue it argues that st cyr should be conflated to a trial and so it is our position that we're properly here on that issue now i'd like to address the merits of that in terms of this gentleman since you're obviously occurred in the context of a plea stating very specifically that does not apply retroactive people are offering three years you say are there any immigration consequences the defense counsel hopefully will say well there are however you would be eligible for a fairly forgiving waiver but what if i go to trial and if you trial the maximum you could receive would be five years if you're acquitted obviously you have not you don't have the stain of a conviction however you would still be eligible for release it's my argument that that reliance there is greater that there was this is a revealing court and there's nothing to review that real id by necessary implication assumes issues that's actually tory constitutional magnitude will be brought in the very first even apart from the truth will see argument that he was eligible that was not what court that he is eligible for citizenship at the same time that he is removable the regulations are abundantly clear that there is a christian whereby the judge may terminate proceedings to allow the elling to proceed to a naturalization petition that was in fact pending that's mandatory on the just absolutely not no it's clearly discretionary and i believe i tried it much they could in the because number one he would no longer be a resident if he had been removed and that's why again i call him the most patient client i've ever had we regulate leave our quarrel with the court was that clearly that there was no due process at all we're not challenging his discretionary finding and these particular cases there's really a regulation that allows it to happen however there is no hearing in this case what so ever on page one thousand and one twenty council seem to think that the judge had already ruled on the motion to terminate in fact yes and what relief are you seeking and counsel say well just appeal your denial of my motion well no i haven't done that would you have presented that the evidence rehearing which you did not present well the testimony of petition obviously as to you know why did you go to jury trial nine hundred seventy nine what were the facts and circumstances behind it the again the many many years of law abiding steve leung you know he would have his wife his children his pastor these people are all prepared to testify in our opinion and certainly my experience this type of motion is about is you know it's the nuclear option in terms of releasing deportation you're asking the court to terminate in my experience and usually the government that wants to hear because they want to cross examine the petition and they want to get to the bottom of what their requests  to be setting time for hearing and he was not the attorney really represented the it was just kind of a substitute would you go over and set this hearing for me absolutely and that was sort of where i  was a bit of a mess and that's seems to be the case and that's why i strongly believe there must have been some sort of off the record colloquy this gentleman was simply there to set a hearing basically got the rather carthaginian finding that number one i'm denying everything and good luck on appeal so that to that extent we believe there was clearly due process you know let me ask a question as a bit of a detour from where you are right now we have procedures for expedited hearings in this court for someone who's incarcerated we didn't do that because there was no indication on the briefs either from you or from the government that he was incarcerated well certainly the petition for review i made it clear he's in custody  of the government the government knows this procedure as well or badly rather frustrated the district court as well it took fourteen months for them to simply and they never even got around to deciding the case i was filing rather gentle motions and rather  that he's been in custody who got the government's read on this case to us was filed a year ago petitioner to proceed to the pending naturalization he's you know there's the authority to do that and we are our position is he didn't receive any process at all in this case finally there's a third point that was made which is to govern is that arriving young has no idea he has absolutely no jurisdiction over a riving and now can obviously dealt with a global reach however there is no doubt whatsoever that even apprehended on this side of the border and the alien comes into government attention through other means the transitional period custody rules apply as twenty six c even apply here there's to say as i read it it looks as though it applies to detention of someone who being released from custody so the the government is right to detain at that time now he was released from custody years ago so this is not your ordinary detainer of someone who can now stay present no absolutely not this is someone who is actually handed at entry  rational distinction exists for that and indeed prior to kim this court addressed the exclusion deportation he did miss of the removal distinction and said the unitary scheme known as removal basically remove that distinction unless protection that if you've been apprehended on the other side of the border he would clearly be eligible for bond now obviously that's a subsidiary issue obviously his liberty interest is huge here but our most you know arky arguments are number one just matter ought to be remanded for to trial see here and we would ask this court to adopt the sister circuits that have made that ruling and two should have a thorough going hearing on the naturalization the motion to terminate to proceed t incarcerated yes your honor and did you ask for did you make notify us in any way that he was incarcerated in order to get an exaggerated treatment we didn't put a statement petitioner is in custody however the final issues addressed that petitioners opening brief and also in the government's response a brief regards his detention obviously we wouldn't have been arguing about his detention if he were not detained so i do apologize that we didn't put a separate statement wear this i am aware of that and yet this wasn't done no it was not and when and why not i do not remember why that particular statement was omitted however and now this i'm not sure of is it the obligation of not only the petitioner but also of the government to make to make us aware that yes it is your honor and however i would say that by arguing about his detention that but is very good but it's very clear from the scheduling orders in this case we were not aware of th that may have been and it may have been an oversight on not looking clearly enough on both parties at the scheduling orders looking at the time and understanding that the court had a different view of petitioners custody than did the parties however so we have a man from california who's been incarcerated for now quite and quite a number of years in arizona he goes to the lady over which you know and we have no control because of the change omission we will take extreme care and i think you will not only the court an apology but perhaps the client certainly we were not incarcerated he was absolutely your honor and to and the government certainly will be glad to apologize six does not apply and there is no authority either be already or federal a port authority that allows you to take him into custody years later when he shows up at the border when really it's language as as i the brief we were not exactly certain what petitioners argument was on that particular case however the when petitioner arrived at the border in two thousand and three petitions councils just conceded that he was arriving and at that time because after the date of his lawful admission in one nine hundred sixty nine he had been convicted of a crime that falls under eleven eighty two eight to see he constituted an applicant for admission and arriving alien and therefore the when released language because he was not apprehended inside the united states allow the government to take him into custody and maintain him in custody do you have any case authority that says when released means when apprehended at the border years after he has been released yes we decided for the fact that that language combine with the transitional custody transitional period custody rules does not apply to  aliens arrive at the border it applies only into our apprehended in the united states which brings out the tears in his argument that i'm asking a somewhat different question do you have a case squarely holding that detention under twelve twenty six he is available when someone comes to the border and has to end the released from prison or from state custody has taken place years earlier i can't such a case it is an argument even if there was no authority under twelve twenty six c there would be authority for how holding criminal ileus who are writing aliens under i believe it is twelve twenty six on the regulations to thirty six so there and it does that all under eleven eighty two eighty two therefore he does fall into the category of people who when they arrive at the border which he did in the end should be taken into custody and maintaining  him then if you were being held under twelve twenty six c they are not more favorable to him because he was a criminal alien arriving at the port of entry having been apprehended within the united states then yeah but i think you be before the court when the motion for transfer was filed with the district court the district court had already entered an order dismissing and denying the detention issue the court however did not enter a declined to enter judgment at that time because there was also a pending motion to reconsider the court's dismissal of the motion to terminate the issue after it had considered the   and the motion for transfer to work then reinstated the motion to terminate issue was silent regarding the motion the detention issue and order transfer therefore at that time it was the government's understanding that what was being transferred to the court was solely the substantive issue on the motion to terminate the proceedings however when we received the opening brief of course there was briefing regarding detention so to prevent a waiver we address the detention issue however we do not believe that the detention issue either one should be here or in fact is here there's a habeas petition it was a hideous petition yes and in the hideous petition the petition argued that the motion to terminate of us ok it seems to me that it is and i don't quite understand your argument that it is not because when the district court ordered the transfer it had already decided the detention issue and the detention issue mandated the transfer of hideous petitions dealing with issues regarding final orders removal to the district court a detention issue it's not dealing with a final order of remove all and the district court had already decided that issue tension of this man no doesn't doesn't the context in other words what appropriately should have happened is there should have been a decision on the hague it does not limit hideous jurisdiction to review detention decisions there should have been a decision on the detention issue in the district court which is adverse to the petitioner then would have been appealed from the hideous petition as opposed to transferred are you telling us that even if we were to conclude that this man is not properly so he gets to stay there as a guest of the state of arizona or the private contractor working for the ins and a state of arizona for another couple of years while this gets sorted out that's your view to my knowledge other than the one bond issue the bond reason the reason we don't have jurisdiction to the side of the tension with you is because the district court deny a motion to an detention and he did not appeal that a right to views regarding his detention not regarding the issues involved in his his order of remove i see so because it just recorded had decided to deny the petition regarding the detention and did not in its order transferring it stay on by the way i'm reinstating the detention issue transferred the case when actually transferred here is the issue regarding the motion to terminate and not the detention issue and so that pro was before the district court had the district court then made a decision had it been adverse to the petitioner or to the government an appeal would have been filed to this court from either the denial or the grant of the hague b s on the detention issue but that a case to me that is just screaming of injustice common sense and gestures but as bad as i have ever seen we've got a person who is being held under serving time for for that conviction he was married has two kids college age or high school age now one of them instead conviction as disqualifying him from entering then sending him to be detained in my opinion under lawfully the chain without bond is there such a thing had arrived at various other ports of entry and i actually doubt it's ever a situation for exercising prosecutorial discretion i can't imagine why this wouldn't be at the top of the list of anything i've ever  seen and that may be a very valid opinion however the supreme court made clear in an american era that the attorney general's decision to initiate proceedings is one of the three discrete areas that is beyond court review well i understand that i understand  discretionary determination and in this case the nature of the record granted it's an it's an old conviction we will concede that however it is a serious conversion or can twenty five year old and a very serious one he was sentenced to five years it was for he did not apply for naturalization in all of those here you know he could have waited five years after nineteen eighty six to apply for naturalization and been assisting years before this however he did he waited until after he was already placed in proceedings before you applied for i have to say i think what you say is right in terms of the seriousness of the crime and various things related to the seriousness of the crime however i think the government has a lot to answer for in its handling of this case to make life easier and quicker for a mistrial carol by some form mediation if the court orders mediation of course we will participate however dealing with the issues that are currently before the court he did not  but i do want to respond thoroughly to your question first when the attorney arrived he was under the impression you should already been decided so his statement then later or the impression later that somehow he was expecting to have a so you're relying on the fact that he was over there thinking it was already decided so that there would be no hearing no i was responding to your point that here we had this attorney would come thinking he's going to get a hearing that apparently is not the six see that i think you are not entitled to do so ship them off to arizona from from his family and from his counsel and have a substitute counsel come in and do a bad job and you're prepared to justify that i don't believe he had counsel prior things here i'm asking you whether you think it was appropriate for this to happen and i'm asking you whether you are seeking to justify the behavior here based upon what you've done and therefore you're blaming the lawyer for something just deeply wrong with what has happened here recently took over from philip crawford who was the district director he recently retired and so that is the person who is the the wharton if you want to use those terms that was a question that was made earlier i am over my time so  questions then we will twelve c and this is entirely different this is in many years before and that's the reliance argument of science here and finally the notion i'm not sure what i was about to do in the district court did address the custody would you have an objection to going to mediation here and i could file a request my only concern is i do quite a bit of mediation is proving to be quite useful in this particular case i'm not sure they would i mean obviously the key quick question is discussed earlier status changes do you address i don't object my only concern is the efficaciousness of it given the government's position on this case i'm not sure i'm going to get some kind of agreement well we don't know right very short answer of course i would not object