released in his criminal case the district court's order promptly compels two different departments choose between the enforcement of two different statutory scheme that congress intended to work until and rather than in opposition now first i'd like categorically supersede congress created separate remedies for the criminal prosecution of aliens who illegally reenter the country and for administrative removal proceedings of those same individual because it intended for those remedies to both apply and not for wanted to proceed to the exclusion of the other the district court order light exclusively on one section of the of the bill reform act not section thirty which is to say the defense is if we agree with you about this and then the government can quote simply circumvent the judge's ruling by holding the immigrant rather than the u s marshal authorize immigration attention but if that were the case that we would we would concede that there are of course constitutional limits the department of homeland security if it's already to hold a mark next to that because if ice is stashed or a mandate is to take him into custody and deport him then that does not ensure the appearance of him  judicial proceeding in this case is you i mean how do you read that to the extent that ice sheet to the court seems to be limiting the lack of a conflict here to the extent that ice can fulfill  reasons for ice to hold someone and if than if those three things are to prevents the appearance of a defendant in court for his criminal proceedings then i think that that would be such a conflict what arises by something for the executive branch to resolve internally if not for an article three court to dictate how the article a separate branch of government makes those determination and for various reasons he should be detained we will detain him and hold him here in in this country until the criminal proceedings are done i mean do you know whether that's the practice is there anything no that's absolutely not the practice if i necessarily entail and mediate deportation in this case he has affirmatively delayed or prolonged his own removal because he's requested relief or not or move all the back doesn't detract at all from the fact that he will be removed  like his claim for relief dictates where he will be remailed but the fact remains that he is ordered subject to a final order to be removed from the country and and you act i don't think it squarely governs here and it's true that some of the language in both provisions are similar and so i think the reasoning in that case is not applicable because the court didn't have before at the textual arguments that i made here at the court and that case of addressing arguments a bit more and more fundamentally just about the fairness of the proceedings and about how it doesn't make sense for the executive branch to be permitted to proceed both through the u s marshals and through you were subject to the supreme court's ruling the more that court's obligation is to make two statutes reconcilable absent express congressional intent to the country right but forty two right that i don't think that's right your honor it isn't well let's just but that is part of your ever heard of the argument but that's a provision that applies only in one unique situation and not even  case i disagree with that your honor i think thirty one forty two d applies in the sense that it applies all the time it does not authorize detention here and but i think it governs all situations in which you have  clear i don't mean to say it is true that judge lamberth focused primarily on thirty one forty two d but i don't mean to focus exclusively on that provision i actually think that the language and thirty one forty one and thirty one forty two a is even clear it says that a devil's advocate here because the purposes of the two actions are different the district court has determined that the defendant doesn't need to be detained pretrial in order to stand trial in a criminal case right where the question is did the defendant go away federal law by reentering the country that's on the one hand on the other hand you have a different federal agency that's operating under different statute with different standards and its only remedy is deportation it's not criminal so why are they pending judicial proceedings which means before a judicial proceeding and the immigration act provides a general grant of authority to detain and again i don't think that actually by theory but setting that aside and it's a general grant of authority to detain i don't actually think that's inconsistent with a very specific statutory command that in a particular instance a district court is empowered to order someone released and you know presumably there is also a federal statute that says the u marshals are empowered to detain or to address in various circumstances that's not overruled or in conflict with the better format it's simply that when a judge under the better format find grounds to order someone really is that order applies to says at one point page six says the government quote made the choice to prosecute the defendant here in lieu of removal do you do agree with it and i think w assume that the purpose of that attention is to hold him pending trial is a i think two things one i think timing possibly does support that and but second i think  well like i said it was ice who had custody of the defendant first and held him from i think two two plus months and only that referred him whence he brought his withholding claim and only then referred him for prosecution on that to the senate i says holding someone and you know truly for the purpose of removal proceedings only in connection with that the removal proceedings should generally occur before the end of a criminal case you know in general the i n a authorizes a ninety day removal period i believe that's because you know particularly you know when you have a reinstatement of removal or do these things should go relatively quickly now in our case of course we have this withholding claims that may not occur here but that absolutely will then interfere with the operation the district court's decision that is we would need to is to i guess if i say look it's a concern that ice may in that and even if we agree with you decide not to the team is that a possibility determine whether he did have a reasonable fear at that point us determine that he did not and he requested review of the decision and interview by an immigration judge immigration judge found that he in fact did have  the government would have to determine what state third country he could be removed to because again his withholding only claim only print prevent his removal to el salvador the country where he's claiming he has a fear i see so they would still detain him what i'm getting at is there any circumstances under which procedures would be finished they need to terms he can stay in the country and then all gets done before the criminal