still in practice that's correct and i'd like to inform the court that the immigration service released mr levy shortly after he was severely beaten by cellmate at the county jail in which he was detained that of course is extra record already to detain indefinitely people designated by the attorney general as terrorists they have procedural protections that are not available to ordinary criminals facing  removal here the court also authorized the government after the ninety day removal period expired to continue to to detain people that the government has is not a sufficient basis to detain somebody whom the government cannot repatriate we do not place people in preventive detention without due process and here the court the district court was made aware of this court's decision in time which rejected the government's attempt to continue to to to detain a vietnamese who could not repatriate based on that's all victim and what they're really talking about is any confinement whatsoever i don't read it quite the same way your honor page six nine you don't read it the same way which i don't think it's victim i think they are so are they talking only about their they're going the statutory construction right they don't purport to say that the statutes unconstitutional i agree they used the doctrine of conscious constitutional avoidance and interpreted the statutes to contain a reasonable ness limitation on the part of the statute that supreme court instructed hideous courts to measure the reasonableness of detention by the basic purpose of the detention statute which is to make sure the alien is available once travel documents arrive the court said that's different moveable is not reasonably foreseeable the court should hold continued detention i'm reasonable and no longer authorised by statute but what they're talking about it for six months i don't agree on i think that you don't think they're talking about the first name to do this do you or do you they did not address the first ninety days that gentleman in that case had been detained for years and it was the post removal detention period twelve thirty one e six that was construed this case presents a question of first impression and it is the ninety day mandatory detention period that's at issue and i think that's the principle on that ninety day i just can't see the problem to it it seems to me that first of all low level officers to catch the person and put them in the tension and the low level officers the for the person in detention are unlikely to be foreign policy experts who know all the different countries policies on accepting remov also may take a while to figure out just who this dalian is some people lie about who they are what their name is where they come from and find out if they come from a country that want to set him and then whether the country want to tempt him or not i as you write him a letter and find out maybe they wouldn't accept him yesterday but they will today because they want to foreign aid or they've had a change of government or change of policy within the government all kinds of reasons  so i have trouble knowing how your argument can be true your argument is basically there are some people the government catches them and it knows from the get go that it's not going to be able to remove them to the country that they should be removed to so it has no justification for holding them and i don't see how it can be proved factually that the government knows from the get go that it won't be able to remove them to the correct country it seems to me that ninety days is reasonable time for iraq proceed to find out who the person is and whether they can remove them and they can't know from the get go i agree with your recapitulation of my position and i agree generally with the three points about is this the person we think it is where are they from and we need time to find out who they are i think those factors apply in situations where you have  nationals from different places for instance the former soviet union i have a lot of clients who are from ethnically ukraine or cosmic stand and there is some genuine question did they lose their correct unless the government has your going where no one has ever got indian obviously indeed probably leading with my chin but i believe that one day of arbitrary detention is too much but this was talking to a vietnamese lady the other day and i just couldn't entry of the removal order there is no question of their identity there is no question of their national origin this case presents itself honestly with planty dismissal by the district court each petition contains the allegation that the agency has already determined there is no likelihood of removal to either laos or vietnam and consistently in the litigation that i handle in the district of oregon and i've handled scores of indefinite detainees and i successfully gotten every single one out the question here is should the agency be able to punish these people by keeping them ninety days when they know full well going in to the removal proceedings that result in the final order that they're not going to be able to effect hundred ninety nine the agency would come in in these kinds of cases with state department affidavits and they would litigate the issue of for movability in the foreseeability of remove all they've stopped doing that itis they have regularized their review process and now after day ninety they review and then they determine whether to continue to detain based on dangerousness they do not you remove ability when considering release and that is the agency practice that should be eliminated by this court the agency says it's bound by the mandatory language in the statute the court should relieve them of that burden because just as they could not keep somebody in custody ninety days if the travel document comes in day one they need to remove them they cannot keep them in ninety days where there is going to be no travel document and they know full well because of the expertise of the agency and the advice of the state department that there is no likelihood of removal there is no purpose other than punishments that i bring back the movements first second it is a fleeting issue and the duration of the dispute is too short for the issue to be completely litigated here there is also no assurance by the government that the release won't be revoked and that these particular petitioners won't be subjected to the same arbitrary detention over again and in fact the agency makes its practice quite clear that they don't even begin to review the detention of an alien they can't remove until after the expiration of the ninety day removal period ninety one case addressing the release on parole of mariel cuban under the cuban review plan in that case the agency presented a sworn affidavit obligating itself not to revoke parole unless there was expiration of the ninety day removal period and it's going to allow the government through this means people whom it considers dangerous based soley on their criminal history the cases of course are premised on the assertion that the government has already made the determination that these people won't be removed if that is a factually erroneous premise through the litigation process that will come to light but the opposing counsel and i are the lawyers in the district that regularly handle these matters in no likelihood of removal but now the language in the first ninety days the challenge correct it's mandatory language and then the next twenty days made language correct correct but your concession is the same for the whole hundred eighty days right yes i think that this decision teaches that due process prohibits arbitrary detention and that when the purpose of the detention statute which is removal cannot be achieved place where they would take people to ask yeah they have a different you know you have one interpretation for where people the country will take them back but were there is no way the question is can you take them back in any detention  ninety day removal period setting those people have been in custody much much longer i don't believe the vitus squarely addresses this question because it wasn't presented there this is a different sects subsection of  and it is a different statutory language that says shall be detained i think if the court does not interpret that to be shall be detained unless there is no likelihood of removal then it's unconstitutional as applied to these people and i think that the court can this court can use the principles of due process articulated in the vitus which is not holding not just the  process or special procedures in the situations of civil commitment that you can take those principles and use them in this case to say that the agency cannot keep people in prison who may cannot remove where the purpose of the detention is removed that is taking hear the petition for writ of habeas corpus hundred twenty eight united states code section twenty two forty one the basic hornbook law premise of that is if you don't have the authority to grant the relief requested you can't hear a petition in this particular case when the documents were filed the petition is the ninety day period set forth in eight u s c twelve thirty one eighty one and two have not passed so that is why i judge panner dismissed the petitions in this case now having dealt with the specific i want to move back to a general as i understand counsel's argument who was removed of war from the united states came from certain countries the government would never be allowed to hold that person in detention if you had someone from vietnam game  n any number of countries that for which the united states does not have treaties to return its citizens i was from metafile i was a lawyer the mediately upon my client getting picked up i would go to the agency and said my client is from you cannot return him to game and everybody understands that take your digital notice of it now you have to let my client out because you'll never be able to remove him and if you're never going to be able to remove him you can't hold him in custody so what she's asking this court to say to the legislature is you can't pass any kind of a statute that allows the government to keep such an alien in custody for any period of time after so the alien f might be very attractive to some of the well well i have never been returned i did not hear for well well any of them ever being returned in the current she's talking about are they returning anyone or is it as a practical matter just outside the record yes they have returned some people to laos but that does not part of the record and should not be considered the court but i just notice israel has a history of not returning its citizens and anybody who is jewish can become a citizen in israel i just noticed the other day that they told the russians they would return one of the oligarch oil people if the russians requested him governments change their mind if slow plot was plopped down in the middle of arizona do you think we might be able to get enough pressure for the the people who allowed us to take him back to cambodia cambodia i'm sorry so you know as a practical yes most of these people they're just one of the mill people and probably will never go let him out and i guess when you when you get past the person having served the sentence for the criminal acts he's committed and the zombie just opinion said you can't hold somebody in custody indefinitely for a non criminal matter and they characterize this as a civil matter in this aspect of a twenty to forty one which of course is the great writ which is some of the longest litigation we've ever had it came over in our constitution channel customers well it's not terribly terms of how the shipwright came well i was very strong in this aspect judge the separation of powers the legislature passed a statute that said you can do a certain thing which in this particular case now going back to specific is that you can and shell actually hold and elian needs a certain category eg i e aggravated felons in custody for ninety days as klinefelter pointed out earlier there is and you know excuse me queue to judge that the ninety days shall hold him in custody and the after ninety days said may hold him in custody and the distinction is those are different parts of the same statute it u s c twelve thirty one is a one and two is one that is that is you shall hold them in custody for ninety days the question in zavvi das was a u s c twelve thirty one eighty six they could have just as well been different statues and as i read and i know i'm pronouncing it differently the court that it does have no idea i don't either so i'm of the script was lobbied us because that's what i use around the office i think zavvi das the supreme court dealt with the issue instead we need to look at this that actually because the legislature passed it and the separation of powers and the principle that we have developed over the centuries we need to hold this current this statute constitutional if at all possible and they did so by saying well we've got to eliminate the word indefinite detention because even though these six does not include indefinite detention the practical effect of it is indefinite detention so they went on to read into it a before the ninety days said crime the court could not grant the relief requested which is release of the aliens that's what they asked and therefore that petitions were dismissed because court lectures direction do you know if the government has some routine when it catches people from these countries that will take them back sending a letter anyway saying we request that you take the person back i don't know the answer to that as to vietnam and laos i believe that state department and some of these other countries as ms dalt said we do a lot of litigation together we just have one gentleman who was from vietnam had his parents had moved to france he was born in france and king in the united states and it was a real issue who citizenship he was and basically everybody said no we don't want him back so he's here and could you talk a little more about moving  in my brief that says when the ninety days would have passed and at that point what he said he wanted to do was follow the c f r rick which is eight c f r to for one point four he wanted the agency to do the process that it does which is get the criminal record together and make a determination whether or not the person was a danger to the community or a flight risk not unlike the magistrates who hold bail hearings in criminal cases and if somebody wants to appeal the appeal is to the district court judge  requested has now been granted they're out there there was no c f r i mean they follow the c f r regs it was ages see them let them out not the judge and so after the ninety days had passed even though this was at the court of appeals the agency followe would say to you if you don't want to buy off on the proposition that the court never could have heard this issue because it didn't have jurisdiction now banning pieces has passed you could remain on to judge banner and say ok agency needs to conduct its review set out and then judge panel if you still object to that and they find that the that the alien should be held in detention he can review that just like you'd review a bail decision and make a decision whether he agrees with the your not and if he doesn't you can appeal to department will be writing me a letter saying what we're doing we're not prepared to tell us where the can see that and you know as a lawyer i would say yeah you should concede that because you can still talk about him but it might jurisdictional argument is correct no that's not correct i mean the cases could have been filed in the first place and good kind of didn't continue them you look at the history of this case the motions the petitions were filed like early meant by the twel is all filed a motion for judgment on pleadings or the eleventh the judge heard in the next day she filed her appeal before the day was over on the twelfth and technically the judgment any minute or yet so you could raise an argument about whether this the judge was out in the next day she filed briefs on the fourth fourteenth of may so this all happened in about three or four day period of  time i think i've just about covered all my points just to stress that you know the term some people use incrementalism if in fact you decide that the legislature could never enact a statute that would allow an agency to hold somebody in custody if they were from a country for which they could never be returned that will have implications to the creek removal order periods of time to cause the next argument you'll hear was well as soon as they picked up my client i went in and demonstrated conclusively that he's come laos they didn't find differently therefore they should let him go that they picked him up and if you don't have should be rejected discussed far ranging policy questions i want to confine you to this record of this case all of these cases presented themselves to the district court on the uncontested allegation that the agency had already determined as to these petitioners that there was no likelihood of removal we need not address the case of an alien whose identity is in question  whose detention presents special circumstances at pages four fourteen thirty forty seven sixty three and seventy nine the aliens allege that as to them at the beginning of their detention in the ninety day period the agency had already determined that there was no likelihood of removal most of these men had begun their ninety day period in february or march or april as soon as the petitions were files the district court scheduled a hearing before the government answered if there is a situation where the government  likelihood of removal out there they'll make that argument and they're not making it here so that even though the think it's a big if you start your time thank you thank you counsel