twelve twenty six a provides that the attorney general after the arrest of an alien may continue to detain may release on bond or with conditions or on conditional parole under step one of chevron's congress has spoken there is no presumption of of released from detention during the removal period a bond is completely discretionary with the that if it is set it must be a minimum of fifteen hundred dollars the statute is silent on how the agency is to exercise its authority how is a policy choice the agency is the authoritative interpreter with the expertise to create policy guidance identify factors and implement the agency is mindful of all the variables and has the flexibility to weigh the factors that is the process that is  there's a non exhaustive list of factors they are non exclusive the i j a is empowered to consider any witnesses evidence and testimony that the alien may present i'm curious five lines it's not inconsistent when it provides that they may consider anything and they do agree that when mentions inability to make it to pay the amount of the bond and the other does not  theory does not specifically address ability to put aside i'm curious about something else we had a hard time finding that handbook because it seems to have been recently taken off the website that's correct your honor and why was that why are now has a checklist where they are and i think that's only available to the immigration judges where they have a  yes it's implicitly considered when someone presents evidence let's say for now and as if she presents evidence that she has no job that she stays at home watches her grandchildren in queens the home and her adult children work immigration judge and under the regulations they have the burden to establish that they're eligible for release on bond or alternatively if they present evidence it will always be considered it's an yes it's considered if a hears it it's considered now you know what i mean if the i j a hears something it will always be considered whenever he says like i don't like the president that will be considered in the making the determination what is always considered in every case if the alien raises indigency and says he can't afford a bond of course that's considered it's hurt whether it's given more weight then i you know nobody's asking to be given any particular weight the only question is they're asking them to be considered that's the issue in the case and that's within the immigration judge's discretion so it doesn't mean it's not always considered it's within the discretion to consider and that so is it is or it isn't always considered and that is in the context it's ok so because if that's what you're saying that it's already considered then we don't need this case because we could just say yes you do would continue to do it that's the government's position that we don't need this case because inherently when someone is presenting evidence you're hearing their employment history the assets the financial resources you're here whether they they say we have considered the respondents contentions on appeal in this regard we understand they responded to argue that because of his limited financial resources he could not post the order however and ellen's ability to pay the in bond amount is not a relevant bond determination factor rather the bond amount must be reasonably calculated to ensure the aliens present at future heari so this judge is saying it's not a relevant factor that means it will not be considered in that case in that unpublished decision in light of all of the other factors that the immigration judge heard those factors basically what i think the record shows despite what your saying and what your blue brief says is that it's inconsistent some times the b i considers it and sometimes they say it's not a relevant factor at best on a case by case individualized determination based on the factors the here it's not a factor they will consider it's a factor that may be outweighed by no doubt i'll wait don't keep saying that that's not what your daughter read you they say there's not a relevant factor and i believe decision so you're saying you go back home well i guess we don't believe that that is reflective of what is happening on a world wide spread basis or you are saying considered the government's position is it's discretionary just like every other factor no factor is mandatory or required all right then it's not always considered as a factor correct it's not correct that it must be consulted every instance so it is it's discretionary sometimes you considered sometimes you don't consider sometimes other factors outweigh ability to come on please stop telling me what i weighs what i said what is considered not what wins you know the difference between something being considered and something outweighing another factor  governments objection to having a generation that says you must consider ability to pay if it's already doing that ok the problem is that the plaintiffs are trying to dictate the factors how it's going to be considered the weight it's going to be accorded making one where does it where does it say the weight can be afforded well if one factor is mandatory required every time and there's nothing else that's required then that is giving more weight to that factor a mandatory factor that you must always consider that and you and then there are lots of other factors but in the that's that's true no doubt about that they say that you must always consider that that's their position bond it's not a right right if they don't have to release them at all right but if they do that they do determine if they do make the determined nation that there's no danger to the community and  major nation you're eligible to be released but we're going to set the bond so high that you never will be you're out of the situation you describe where they say they're not a flight risk and not a danger that's not the situation we have before you we're talking exclusively about people who are it's been determined that there are going to have a bond and we're only talking about what the amount of the bond should be all right and the question is is it relevant necessarily whether the person is a millionaire or has no money is that a factor that must be taken into account if the person is indigent for instance you might be willing to have a lower bond than if a person's a millionaire i mean it seems so so obvious and ok matthews versus eldridge only requires notice opportunity to be heard in a full and fair opportunity to present the claims that's what's going on here the government's procedures are adequate and do not raise any serious constitutional issues because the anyone can present any evidence and witnesses and testimony that they the morning honors michael kaufman on behalf of the plaintiffs the owners sezar mathias was locked up for over four years on a three thousand dollars bond as a result of the government sponsored in procedures that do not require consideration of ability to pay or non monetary alternatives the department of justice itself has to recognize that a bail system that lacks consideration of these factors violates the equal protection and due process clause of the constitution all that plaintiff seek care  yes i'm referring your honor to the amicus briefs in that in the walker case in the eleventh circuit as well as the statement of interest that they filed in the bargain case in the district court in both of those materials the department of justice explained that a bail system that lacks consideration of ability to  and non monetary alternatives risk the unnecessary detention of people who lack financial resources and violated both due process and equal protection clause now all that plain to see here is the federal government's compliance with these fundamental requirements to ensure that no other person is incarcerated for years merely because he is poor now at the outset here your honors i'd like to begin by clarifying what exactly is at issue in this appeal and reiterate something that judge reinhardt alluded to it which is the class definition here by definition every class member here has been determined by an immigration official not to present a danger to the community and that they are likely to appear in future immigration proceedings that's what it takes under the regulations to order somebody released on bond and every class never hears already been ordered released on bond either by ice or the i j a so the only thing at issue here is determining the appropriate procedures that immigration officials should apply in determining whether the appropriate conditions of release for people that have already have been found suitable for release now your honour's i would submit that the disk the court here did not abuse its discretion in requiring certain fundamental and basic requirements to prevent against detention based on poverty now your honour's here today and in their briefing the government has made a number of arguments against the district court's order that rests on really egre ous mischaracterizations of what it in fact requires so first they claim that the order somehow creates a constitutional right to release on bond not so the order is clear that an individual's ability to pay is not the dispositive factory unbond  term nation rather acquires only that ability to pay must be considered a bond terminations and that's it you are forty four second the government claims that the order somehow creates a least burdensome means tough but again here your honor the order expressly rejects that argument states that it does not create only three speed restricted means test for immigration officials and cites to judge ward laws decision in the rodriguez three decision which found that mere consideration of alternatives is not the same thing as a requirement of a le making and each on citizens case to make sure that the conditions that are set adequately reflect consideration in their ability to pay and the possibility for release on alternative conditions for lay claim that th court order shifts the burden at immigration bond proceedings again here on or not so that decision expressly recognizes that for individuals who get beyond hearings under an initial bond hearing is under eight u s c twelve twenty six a that they bear the burden of proof to demonstrate that they're not again you're a flight risk that warrants that attention every class member here is already met that burden the only thing we're dealing with here is how immigration officials go about determining the appropriate conditions for their belief finally your honor the government repeatedly makes this claim that plaintiff's counsel somehow then veto authority over the procedures that the government will use to implement the district court's order i must say i am perplexed by this argument here all the district courts are order requires that the parties meet in confer on implementation of the injunctive relief here that is a common requirement in cases involving injunctive relief and it's for reasons of  of course we want the parties working out any disputes before the injunction goes through in effect so we don't have problems in the implicit in the aftermath of the district i want to jump in and resolve and possibly require a new bond hearing for people who didn't get the right procedures in the first place so properly considered your honors i think that the district court's order is well supported by governing law and under the supreme court precedent and the supreme court with respect to their constitutional claims or honors the supreme court has made clear that when the government exercises its authority to detain non citizens and immigration proceedings it has to do so pursuant to adequate procedural protections that ensure that in each individual case of detention that the government's legitimate interests are being in advance and the lesson from beard and and the other cases that beard and relies on is that it is illegitimate for the government to lock somebody up based on a financial condition what it has a bailable to it alternative conditions that would meet the government's interest but allow the person to game their freedom that is the central position that the department of justice took in their walker a and in their statement of interest and invited in and it equally applies here now the government claims that immigration detention is different that this sum this case somehow involves a plenary power doctrine not so you honour's the supreme court has been clear and sad by this that the government's detention authority is quote subject to important constitutional constraints and in this case we're dealing with one of the fundamental constraints on the government's ability  that is they cannot lock somebody up based on their poverty and we know this is fundamental because if you look at the wide range and circumstances in which the supreme court and the circuit courts have applied this principle it's applied in the criminal justice punishment and we don't really have to go that far in this case i mean you're not saying that if somebody is indigent that they have to give  well you're asking for there to be consumed and you know i think you have a less difficult burden if you just saying they have to consider it and if you say you can't lock them up if they can't make that's right your honor and that's an important clarification when i say you can't keep them one detained based on their poverty i'm simply using the formulation that the department of justice used and they're in their  they explain that when the government uses a financial condition to keep someone detained but it has alternatives that would allow the person to be released that is detention based on your poverty of course we have not argued that every person ordered released on line need be released only that that immigration judges and ice officials need consider other possibilities where somebody because of their indigent isn't able to afford a monetary a money bomb that sat in their in their justice context and bail hearings which are civil in nature in cases like pugh v when water the fist circuit's decision and the long line of district court cases that we've cited in our brief in striking down bail systems that lack consideration of these factors and it's been applied in other civil detention contacts you know for example the supreme court's recent decision in turner the rogers there the court required consideration of ability to pay before somebody could be subject to detention for civil contempt based on their failure to pay a child support i think what these cases show is that we're dealing with a fundamental principle here constitutional law that is that you can't keep somebody locked up on a money bomb when you have other conditions rodriguez three already interpreted twelve twenty six eight to require consideration after prolonged detention voluntary and conducted under that decision now we are simply asking here for the same requirement to apply for that subset of class members who are getting their bond hearings at the outset of their hit cases under twelve twenty six at so your honor i think that it's clear that the statute is susceptible to an interpretation as the district court found requiring consideration  f alternative conditions of release non monetary alternatives and in your honor there's a very good reason why we think it critical of that that i j is an ice officials consider alternatives to the record evidence demonstrates that these alternatives are extraordinarily effective at ensuring people's appearance at removal proceedings we say to their supplemental actress of record a government accountability office report that found from two thousand and ten to two thousand and thirteen the government's primary alternative attention program was ninety five percent successful at ensuring that non citizens appeared for their removal hearings every remotely hereon after their release and that's consistent from testimony that we cite to in the record as well the government's witness most knowledgeable about alternatives program from the rodriguez case that witness testified that here in regions in southern california they've reach compliance rates close to one hundred percent under that very same alternatives is their primary alternatives program and that it's the exclusive one used here in the central district around us and i think the record evidence shows that it is extraordinarily effective it's also consistent with evidence we have from the criminal justice system showing that non monetary conditions of release can be very effective and here is i would refer you to the amica spree submitted by natural which gives an overview of some of the conditions that have proved effective including some very low intensity forms of ensuring that people show up here that's why it's so important that image mission officials should be considering the full range of options they have available to them in determining how somebody should be released right now in the central district there's basically a money bond is the presumptive form of release and that's why we have so many people like ses are mathias like social hernandez who get locked up on unaffordable bonds because as the district court found immigration officials are not sit down here i want to be sure that we spend so much time talking about the merits of planes that plaintiffs claim here i want to be sure that we touch on the other polemic injunction factors namely irreparable harm balance of hardships and the public interest all of which i would submit your honor to sharply in the plaintiff's favor here and that's because we're dealing with a class of individuals in civil proceedings that have been detained detained some of them for like  counterbalanced against that we have the government's interest here which is detaining people who its own immigration officials have already determined are suitable for release and the only impediment to that release is the happenstance that they don't have enough money in their bank accounts to pay off their balance that's the only impediment their release and you know as a judge or law recognized in her rebel against three opinion immigration detainees are held in prison like conditions and those conditions make it extraordinarily hard for them to litigate t removal cases it's very hard to access counsel when you're detain and that's why the vast majority of detainees are forced to go without counsel if you're pro se being detained makes it very difficult to litigate your removal case it's hard to get documents to support your claims it's hard to do the legal research that you need to look at your case and that's why i think we see as the amica sprit if that was submitted by retired immigration judges attest to that quote detention itself often determines the outcome of the move proceedings now we also know your honor that that the unnecessary detention of people based on their inability to pay a bond also has severe hardships on their family members and their loved ones you have people who families who lose the loss of care and support from the person is detained and on the square i would refer you to the amakosa brief that was submitted by the u c i immigration law klip led clinic that details on the number of additional people in addition to mr nando's and mr mathias who suffered really severe hardship as a result of their detention for example there's the case of a single father by the name of pedro he's a single father sole care of seven united states  he was picked up by ice held for over a year on a five thousand dollar bond that could not be be eight be paid because he was the sole breadwinner for the family now he's luckily been reunited with his family but the children are still suffering severe trauma from that prolonging separation from their father there's also cases like danya morale it's who tragically lost her mother when she was detained and the government ice refused to release her to attend the funeral while she remained detained on an affordable bond and there's cases like carlos pereira whose daughter was all set to go off to community college when her father was picked up and put in removal proceedings and she decided that she could no longer pursue her academic future how to get a job to support the family and help pay down her father's farm and these are just a few a handful of examples of the hundreds of families that have been separated torn apart by the government's existing bond procedures finally honor it's important to recognize that the government and the public as a whole is suffering irreparable harm from the government's maintenance of these illegal policies it is extraordinarily expensive to lock up somebody in immigration detention because it's based on government estimates approximately one hundred  subsequent briefing was worded on this yes is is this statute and constitutional because it doesn't require consideration of financial ability to pay and therefore it necessarily  deprives people poor people of their liberty and as opposed to wealthy people i'm sorry i'm not i'm not sure i'm understanding your equal protection argument yes statute constitutional under the equal protection clause yeah well there is no equal protection claim and rodriguez has no i'm saying that i'm saying should we the analysis the second round of briefing yes jennings be rodriguez whether they were analyzing criminal detention statutes were constitutional yes so you really analyze the way this is constitutional well you know you want to eat eat eat you can resolve this case on the basis of the statute alone that's what judge burton all found that the statute can and should be construed in light of the serious constitutional concerns posed by statute that lacks consideration of billeted of pay and that's precisely what this court did in the united states versus keith case that's a case involving the federal par statute and there this court construed the federal probe statute to require consideration of ability to pay before the government could remain carcer eight somebody due to their inability to pay them some financial condition of their relief so we're simply asking the court here to will certainly not your honor you know as a willing to before there's a whole lot of ways this case could be resolved many of which would have no impact whatsoever on this case and meanwhile it's probably likely until june that we'll get a decision in that case of the following year meanwhile class members will remain detained  permissible about that you know we can we can live without it but we do it's just a good idea for the parties to try to work out things themselves before presenting issues to the district court to resolve and nothing about the district court order changes the fact that it's alternately going to be the district court that decides immigration and that's rational basis review not necessarily i mean we're talking about a liberty interest which is fundamental well they have a limited liberty liberty interest because we're talking about twelve twenty six eight initial bond determination hearing there has been no poll on detention the standard for for legal protection argument i think that the standard is you have to see is your fundamental right implicated is it a suspect class said the government should be held to a clear and convincing evidence standard of proof given the substantial liberty interest thing for example has been detained for nearly four years we hold it the government must than six months so there's less of a liberty interest mathias had never appealed to his bond determination to the boy that's why he was detained so long he never appealed t of the case shows that appeal to the board is not futile fernand his appeal was the state in this case the immigration judges determined that money bonds were necessary because they were flight risk and they needed an incentive to motivate the mathias testifying that he worked as a hairstylist looking at his criminal record and his immigration violations they were reluctant to set a bond at the minimum or with or noble and because of his immigration and criminal object to a rule that says when you consider how much the bond should be you should consider what his resources are doesn't that's perfectly same for you if the government's position is that it usurps the immigration judge's discretion they can already consider any evidence that the alien puts forth telling the i j a what to consider usurps the discretion an