caption from the operative provisions and from the definition of the removal period there is no dispute here that these aliens have been ordered to remove the deed that is the definition of reinstating a removal order in the pending a decision on whether the alien is to be removed and the reinstatement clause says that these aliens shall be removed putting those two provisions together it's clear that in the eyes of the law decision that has to be questions mr sherry if it a one million is in withholding only proceedings and there's no country other than the one you know as to which he claims statutory withholding o can't relief can you remove him so he cannot your honor well then so your emphasis that the distinction is between whether and where it really doesn't hold up across the board does i appreciate your honor that the distinction between weather and where can seem artificial in a context where there is only one option and that option but then surely has been ruled out nevertheless that is the distinction the statute requires  countries have refused permission even in that context it's called thirty one that apply that suggests that congress did you whether and where as just a nd that's the distinction that underlies the difference between withholding of removal on the one hand and asylum on the other hand the court hasn't said in its precedence about withholding an asylum that the two are functionally the same simply because as a practical matter whether and where it can collapse to a single inquiry well when you're flying can collapse that seems to mean to suggest that the distinction you draw lines is is not a valid one you'd be a call and you call an artificial but it seems to me that it might be wrong and least in the category of cases withholding of removal in the st place depends on the court's accepting that distinction recall that the reinstatement clause says that the removal order can't be reopened can't be reviewed under any circumstances the only way to square that with withholding is to say that withholding doesn't affect the removal order itself it just affect the question where well it might be isn't it lying isn't it's since it depends upon whether you can actually remove the alien vs corpus petition and the court in the just said that such a thing as corpus petition could be heard where the question is whether the government had the authority to detain the alien in the st place the court is reviewing a determination that these aliens are entitled to bond hearings but that determination depends on the contention that the aliens are detained under section  haven't completed their review or it could refer to a situation where both the courts and the agency have completed their view the use of administrative leave final clarifies that ambiguity makes it clear that all we need to establish is that and forty seven ties phonology to whether the agency's review has been completed and here the agency's review of the removal order itself has certainly been completed the only question left to decide is know of the individuals all of whom it is a you know there is a preliminary thing is that it does this person have a reasonable fear that he will be persecuted or tortured or whatever if he's removed a country has a reasonable fear then they go on to decide whether that fear is in fact correct is make and binding on that what percentage of those who fall into the reasonable fear category so the immigration service will look into it what percentage is it found that they are that they do that they that they can be sent to that country do you know yes i do with our best estimate is around eleven percent ok so and all of those eleven percent ninety eight percent never sent anywhere is that right that's what we're told in one of the braised yes that's right so it's about ten percent of those who are saying in that will never leave the united states that's about right yes ok so so given that's a fairly good percentage but not overwhelming percentage with ten  percent who will never leave the united states can we say that it is administratively final i mean with ten percent of these people they will not leave the united states they have a fairly good shot of fairly good  where the majority said that the removal orders for maladies is not affected by cats protection and it doesn't matter whether ten percent or twenty percent or some other percentage who are going to ultimately leave the country very emphatic that reasonably feared removal from prejudice and torture if ninety eight percent of them ended up never leaving the united states do you think that this pr is that your view yes our position turns on what is true in the eyes of the law not what ends up happening in practice well they're also i'm not necessarily going to argue i point out but there are traditions there is a constitution there is a country where by and large we don't keep people in prison for years whoever they are persons and for years without any chance of even getting bail morning mr sorry i have a couple of questions about the statements that you make and your reply brief you say that the statute makes detention mandatory during the removal period only for terrorist and criminal alliums so the two questions are these st does that mean that the department of homeland security releases other aliens under supervision and  is there a process for deciding which of these aliens will be detained and which which our hands will be released just a fleet oh as to the st question if the alien is released then yes it would be under such supervision house to the nd question the department tries to detain aliens during the ninety day removal period to the maximum extent possible releases would occur only if there are operational constraints such as a lack of detention space in a particular facility and you know there's no systematic framework for determining whether that decision has to be made rather it's a case by case judgment depending on what is happening at that facility at that time and who makes that decision that would be made i don't know the answer to that question but i would imagine it's made by the local ice field office the initial ninety day period not after the ninety day period so i'll ask about after the ninety day period how many people are granted to provide relief after that ninety day period i don't have the statistics on that question but respondent cites a study cited a study that claims that fifteen percent of the hill ians are released at some point before the withholding only proceedings are completed so eighty five percent are and remove the immigrants within ninety days you seem to have admitted to justice prior but that is most cases is possible for this class of alien now if aliens can be released on bond or balor supervision why should we not adhere to the basic interpretive principle that councils in the favor of a harmonious reading and again choosing interpretation that produces a substantial effect that is inconsistent with the text of another provision if we accept your reading basically were saying for this class of withholding o withholding application that they are never going to be removed within ninety days of the finale of their removal or that just doesn't make any sense to me i appreciate the force of the sentence of that the aliens with reinstated remove orders can be removed at any time we think that at any time takes precedence over the ninety days the nd hand i'm sorry i'm not quite sure i follow argument you've already admitted to the chief justice that you can't remove these people who are in withholding proceedings because the law doesn't permit you to hide minute to their o i'm sorry i didn't mean to interrupt i pointed to the chief justice as a practical matter these aliens can be removed if there's no country willing to accept them that was the fame situation by the way inside vetoes for the government was searching for a country to which to remove the alien that was available but i even want to take a little bit further and ask you suppose you had a rd country that for whatever reason was willing to accept an alien if if if that alien was currently in you would have to provide him notice and if he had a fear of persecution or torture in that country he would be given an opportunity to contest his removal to that country isn't that right that's  so in this situation as to these aliens who are currently in withholding proceedings you can't put them on a plane to anywhere right now isn't that right certainly i agree with that yes ok and that's not as a practical matter that really is as as you put it in the eyes of the law in the eyes of the law you cannot put one of these aliens on a plane to any place either the either the country ability to carry out the order rather is the entry of the order ok so lake you have to convince me that it doesn't matter that you cannot deport the alien exactly right yes the the i j a enters the order of a movability of a removal and and grants withholding and then that's appealed by the government would would that elian be treated as if he were reinstated removal order context what happens is that the withholding proceedings and the removal proceedings take part together they're not bifurcated and so in practice the immigration judge wouldn't enter a separate removal order is valid and then conduct separate withholding only proceedings then i agree it would be one thousand two hundred and thirty one dollars all i'm saying is that doesn't happen just to score such the morning mr serry i want to ask about  that that statute also grants review only of the final order of removal judge richardson acknowledged this difficulty in his dissent in the four circuit and said that means that there are the fact they are going to be no judicial review of withholding only proceedings but the government apparently in the four circuit thought that there could be and here on twelve and thirteen that i see the government program is maybe hedging its bets and and  surely a final or removal can't mean one thing for in one statute in another and another that would that would seem unlikely at least so perhaps you can help me with that difficulty certainly just of course which st since you ask me to take a position yes the government's position is that review would be available and that final would have to mean something different in one thousand two hundred and fifty two nd if you think that final has to have the same meaning across all contacts you should rule for us because the general definition of phonology the reinstatement clause and not swallow all indicate that these were orders are final and so we've offered up the idea that phonology can have a different meaning in order to preserve the body of precedent in the lower courts about review of withholding only orders but explain to me how that how that works though how i mean the term isn't finality it's a final or over remova as exact same phrase in both statutes and how the government have us interpret that differently here we'd have you interpret it differently on the understanding that final can mean different things in different contexts for example an order  be final for purposes of the court of appeals when the district court decides can be final for purposes of this court when the court of appeals decides can be final for purposes of hades corpus when the entire direct review process is complete and so it is possible for final to have different meanings and the justification for giving final a different meaning in one thousand two hundred and fifty two would be the presumption in favor of judicial review but as i said if the court disagrees with me about all that then it would follow that these orders all legal barriers to remove or clearing away and quote in other words using the fact of the ninety day limit to help and term for these two provisions and to clear away the legal diplomatic and practical obstacles to removing the alien to that particular country so it doesn't make sense to say that the removal period begins only when all of the legal barriers or twitter to weigh when the whole point of the period is to give time to clear away some of those barriers nd the rule period definition says that the removal period began upon the completion of three pacified of that and those three specific legal barriers are the only one that needed need to be cleared away it's inconsistent with that specific ation to say no actually the removal period begins not only when those three barriers are cleared away but when some other un specified universe of additional barriers also is cleared away and to pick up on i want to justice briar's questions i think you acknowledge that some significant number of non citizens in a circumstance instead of going through that trouble why not read the statute here to avoid that potential constitutional problem as a matter of constitutional avoidance and they say and their brief quote congress simply did not write a statute that would render a constitutional violations routine and to quote why don't we follow the lead suggested there let me st correct this idea that detention could last for years in the vast majority of these cases the detention will last three to four months before the immigration judge issues his decision and that's no problem even on respondents you it's a very unusual case which will last more than six months now more than six months we have both vetoes procedures which the studied us court has already told us here is any constitutional problem and we also have the regulatory procedures for post order of custody review and finally in all these cases the alien is being detained because we've made a determination that the alien is a flight risk or risk or a danger to the community that's the trigger we've used to detain the alien under section one hundred and twenty three one thousand eight hundred and sixty four more than three months now government tried to conduct a review for me before that period has expired and let me ask you this in your response to just the sort of my or you said that eighty five percent of non citizens in this category remain restrained after the removal period and i'm wondering why the default isn't set to release with supervision and here's my reasoning as i look at the statute the removal period itself is ninety days but if it's the aliens fault that the government is not able to remove the alien during the st ninety days and i'm looking at the pier the provision in a one c which says the alien fails refuses to make timely application for travel documents etc that removal period as defined in the statute let's say it might be two hundred dollars days but then i'm looking at a three which talks about supervision after the ninety day period and says you know if the alien does not leave or is not removed within the removal period defined as ninety days in the statute it says the alien shall be subject to supervision under the regulations so why default and the finding specified a status must be made before the government can continue to detain those aliens for more than ninety days our point is simply that because these particular aliens have already been removed from the country have defied the removal orders and have come back into the country illegally and been caught there's a particularly strong basis for concluding that those aliens are a flight risk and and whether the government in practice would have the ability to remove these aliens but i'd like to just remind the court quickly that respondents themselves have abandoned that argument thank you thank you counsel mr hughes mr chief justice and may i please the court this case addresses narrow circumstances individuals who after removal based persecution returned here to escape and of already been found to have a reasonable fear of persecution removed from the united states remains pending this is the language of one thousand two hundred and twenty six whether removal will occur cannot be divorced from where it withholding is granted the answer to where an individual is removed is virtually period rd this makes sense of congress's determination that the removal period last ninety days and all while twenty six provides indefinite detention while proceedings are under way then after that i and a authorizes removal governed by a provision that isn't titled quote detention and removal of aliens ordered removed the tumor seems to fit your client's precisely two responses your honor that's over proffers i don't think can lead to the conclusion the nd point though is what is the order that is is critical here and in this context you can't separate out the reinstatement order we agree that when the underlying order o removal is reinstated that order of course has effect but it only has effect when it's merged with the reinstatement order and let me explain that when you have a prior order of removal that's being reinstated the reinstatement order makes certain critical determinations for example that the non citizen is actually the same person as an issue in that prior order additionally that the non citizen unlawfully entered the united states till you have that determination that is in the of argus and the government doesn't disagree that notwithstanding what does look like categorical language in a five there is still the right to withholding that's provided for by statute in fulfillment of the united states is treaty obligations and i think the best way to reconcile that a five language that fernando vargas tells we have to reconcile with the rights of withholding is to understand that reinstatement is a process this is how the regulations describe it for example eight c f r to awa it talks about the reinstatement process and we think that that reinstatement process is conclusive and final at that time that the withholding only proceedings conclude and that order is subject to execution  country now what that happens to that underlying removal order and the newer assessment you are for the underlying removal order to be reinstated there has to be started to terminations that are made which includes identifying that the person at issue is the same person that was subject to and deported on the st time pursuant to that removal order and nd that the individual in fact unlawfully re entered the country rather than  back to life the underlying order of removal and so with the underlying order of removal and the reinstatement order paired together that when that process is final does authorize the united states to remove an individual one that  process is concluded so why is that how does it how do you reconcile that and this goes back to the chief justices point how do you reconcile that with what the court said about chat orders and  two reasons your honor st is when do we think that this process reaches conclusion and we think the process reaches its conclusion it's administratively final at the point that it takes that's executable and that's important because otherwise the categor language of a five would seem to allow the government to remove an individual during the pendency of the withholding process but the government doesn't take that position my friend their side made that quite clear if they cannot do so now would be in violation of the statute  point if i can for a moment is that we don't think the court even needs to reach a one be an administrative finality and that's because a one a is the gateway that defines what the removal period is and it's the removal period if the government categorically does not have authority to remove it makes no sense to conclude that the removal period the ninety days during which the government shall remove has begun it simply doesn't meet the definition without even getting into the that makes sense of the statute that the ninety days during which the government has one obligation to remove that's why this is the time period congress wrote and it's also why in a one c the non citizen has certain obligations for example you don't question that but there are some things you could bring up you could say by the way i'm jones i'm not smith and now you can also say by the way i don't want to go to and what supports that is the date the order removal be columns it doesn't say the date it was reinstated it doesn't say but came fun and says but comes final and so something must have the possibility of happening between the time you enter the order saying i don't order goes and the beginning of the removal period now is that correct yes your honor we absolutely make an embrace that  withholding only proceedings d h as has the authority the legal authority to remove the alien to a rd country so long as it provides the way and with notice of that rd country removal and the alien does not  express a fear of persecution or torture with respect to the rd country in those circumstances do the statute regulations authorize the h s to put the arrow in a plane leaving the country yes your honor if those conditions have been satisfied and what that would typically result in would be a warrant to remove all to that particular country  a five warrant of removal and that would authorize under the i and a removal to the path to that country and we would agree when that occurs that one thousand two hundred and thirty one dollars applies but that requires as you indicated several legal steps between where the court accepted they are about a ministry of finale's with the position that you are you're taking here well you know i think there's multiple reasons but our  argument to start is the gateway provision of a one a which is to say it defined in limits the removal period as the time that the government can actually execute on the removal order and that is explained by the st clause except as otherwise providing the section and withholding is within the section and alleviates clued the government from executing on the removal order so i don't think the court even have to get to a one b in order to resolve this case and that makes and twenty six which this case fits perfectly with in that language harmonious with one thousand two hundred and thirty one by understanding what the very definition of removal period is and that obviates the court from even having to address questions the finale but if the court does get to your argument dependent on the statistics that were discussed earlier about the feasibility of removal to a rd country suppose that there are was a rd country or rd countries  that were willing to accept these aliens would you have an argument then what you are if there was that for a rd country i don't think we would even have these proceedings because presumably instead of spending all this time and effort litigating these cases the government would just remove individuals to those rd countries and so i think we'd be in a very different scenario if the government did have that country to identify i agree we'd be been in very different circumstances it just doesn't and that's that's why we're here just to sotomayor thing u the process provided by the government's regulations are not satisfactory cancer non citizens do what you did here just get k b s review and why wouldn't that be enough you know i think that this goes to the very purpose of constitutional avoidance of justice scalia explained to the court and argue martinez which is to say rather than set up a structure where the court has the courts have to do individualized terminations as to whether or not detention of constitutionally excessive and individual cases if there is a plausible alternative reading and we think our reading is absolutely plausible it makes the most sense to infer that congress chose a statutory structure that was not going to lead to routine and predictable constitutional violations in at least some case now my primary side says it might not be in most of the cases but justice scalia addressed that in clark the martinez and said if there's any predictable range of cases that leads to unconstitutional outcomes that's pretty good evidence that's not the proper construction of the is before prolonging deprivation of liberty having a neutral arbiter and what the court is a vitus that it wouldn't be enough for a deprivation of property if there was a non reviewable it ministre to agency that makes it a property deprivation and the same rules should govern and fundamental liberty interest but answers justice thomas question why wouldn't the haiti is proceeding be enough to give you that review well again it goes back to the constitutional avoidance princip ways doctrine informs us that we should select the construction of the statute that is going to lead to grave constitutional concerns in the need to bring individualized abia action thank you justice kagan mr hughes just on this constitutional point again it is your understanding i guess i'm a little bit confused as to what the government is is saying about sydney this and how it serves as a backdrop is your vitus would be in this context the government makes the argument that if there are proceedings i'm going to hold it there is not the lady that is satisfied for that due process test the non citizens routinely make the argument that because of the proton nature regardless of that foreseeability there still needs to be an individualized attention my understanding is that the this records are somewhat mixed on this question and many courts have found notwithstanding the government's contrary argument that there is very serious due process concerns that require a hearing individualized hearing in those circumstances over the government's objection to that principle but the government's argument as it goes through these cases one by percent of cases the individual does go immediately to section one thousand two hundred and thirty one detention and promptly removed from the united states this case is about the very rare exception when individuals have satisfied a reasonable fear in our view which is which is a very high threshold proceedings to concede everything about remove ability and that the removal of the only advance of withholding claim that happens day and day out in the immigration courts and that's non controversial really subject to one thousand two hundred and twenty six detention these cases look exactly like that and they fit well within the category of one thousand two hundred and twenty six of protracted proceedings that make the determination as to whether the i understand all of that and i'm sorry to interrupt but what rational explanation is there for for withholding to where the individual cannot be sent i think that's the rational basis on which this was structurally place in one thousand two hundred and thirty one but i don't think that bears on the tension question when we know that individuals in outside reinstatement proceedings who only action becoming final just because a party doesn't press a request for additional agency action this is ministry of finality argument all depends on the absence of any requests for further agency action from an individual that seems an unusual way to define agency finality can you help me with that yes you're right and again to start with and i hate to keep repeating but i don't think you get to finality but if you do get to finality and you know the key way to think of it is that reinstatement process one does that conclude and we think that when it's actually executable is a natural way to think of administrative finality and again the government's position i think has real problems here because they are taking later earlier they think decision on whether the alien is to be removed is really our id been made automatically in the case of someone who really enters the country illegally because the prior order for movable is reinstate but the nd point to it to address those reinstatement provision in a five this goes back to the point really are making we appreciate that that language reads absolute in its terms and that's why it has to be reconciled with withholding because if the co read that with absolute terms that would mean it would have no low five withholding proceedings for individuals in this category that would mean that individual could immediately be removed the government agrees that that's not a plausible reading of the statutory tax given that the u s obligations here and so the way that it gets reconciled is to appreciate the process of reinstatement and when that reinstatement can be deemed final dust triggering the obligations or the right under the the reinstatement process that we think is most naturally understood to be when these withholding proceedings concluded resulting in an order that is the executable and administratively file and these provisions are part of the  meant to be very stringent so it's not surprising what the language of a far as worded that way one of your main responses and you were talking about this with justice kagan is going past the six months of the just period i guess my question is why don't there are there are cases pending in this court on that question the constitutional is so obvious to process point isn't that a better way to we think the government has a substantial problem with explaining how the removal period which is the time during which the government shall remove can begin and end long before the governor has already moved anyone anywhere so we certainly don't ask for any reconfiguration of the withholding only claims would be treated under one thousand two hundred and thirty one and i just want to make sure that i'm tracking that because the government says the guy that the dividing line here is once a final order from level has been entered  statutory that is in your brief on page seven you say after the initial custody determination by d h s s congress determined that a non citizen is entitled to a bond hearing before and i j but as support for that you  regulation not a statutory provision and as far as i can tell in one thousand two hundred and twenty six itself the bond hearing looks discretionary because it says that the alien may be released on bond so why is a bond hearing  entitlement under the statute as opposed to the regulations and why would it have to be before an i j rather than an official from ice that is being squarely assigned to an i j has been done by a matter of regulation agency of parties thirty six point one being that certainly the way that this has been implemented i think there may be a reasonable argument that the bond requirement carries with the requirement of a neutral arbitrator but regardless that is how d h as for decades has implemented as so the the legal structure that comes to the court is a statute that requires the bond and the implementing regulations that put that detention pending a decision on whether the alien is to be removed from the united states again we think the government's position has been very critical that they take the position the removal period begins and almost always and before they can remove the individual anywhere and we believe that a one a is the critical provision here because it defines the removal period as a time during which the government must have this authority and also if it saps from the removal period other and thirty one when the government doesn't have authority to remove which includes the withholding provisions that is squarely the case here finally we've certainly not retracted in any our argument has been consistent throughout this case the government's been correct in saying we've somehow backed away from argument chief justice if we take a fairer view of this case we've got some strong arguments under the text of section one thousand two hundred and thirty one particularly the title tension and removal of aliens who have been ordered removed they've got some reasonable arguments under and twenty six how can you say that someone that there's been a decision about whether to remove someone when it's not clear that there's any country available so i'd like to talk in this rebuttal about a few tiebreakers you might use to side removal or you could read it to refer to the legal decision i v the order of removal itself the phrases in section one thousand two hundred and thirty one by contrast are fairly clear order to remove means order dream moved and court's precedents in order for respondents to prevail they have to adopt a definition of administrative anality that's directly contrary to this court's decision just last term and not follow they have to say that a cad or withholding order does reset the phonology of a removal order and beyond that i mean a request for such protection resets the finale we don't that's directly contrary to what the court said which is that a cad order does not destroy the validity of a final order which we move all the other relevant precedent to this court's district decision and didas the aliens and study to find themselves and precisely the fate circumstance that respondents are talking about here the government's looking around for some countr provided certain procedural protections of while they remain there that's exactly what we asked the court to do here thank you thank you counsel the cases s