and deport a prominent immigrant rights activists in retaliation for his core political speech criticizing ice and the public attention that speech has received the district court aired because it never reached the underlying constitutional out against the cruelty of immigration detention and his voice and activism were featured in the two thousand and nineteen documentary the infiltrators ice's actions constitute outrageous retaliation it arrested mr rojas just days after being notified of the film sundance premier it revoked the order he received in two thousand and twelve that authorized him to live and work in the us citing reasons for revocation that the government today concedes our fault and it aggressively pursued the exile of the man who would otherwise be the lowest priority for deportation these actions made international headlines precisely because they sent the message criticize ice and ice will deport you there are two ways in which the district court failure to violate the constitution we know vs a t c the main case relied upon by the government doesn't stand for a contrary result in a g c the supreme court leaked the merits of the st amendment claim and for reasons that have no application to this case rejected it had the district court read the st amendment claim here it would have found an outrageous violation of the for amendment this is viewpoint discrimination against core political speech conduct prohibited by long standing precedent that i don't understand i don't understand how you are getting around the language of the statute itself express who declares that no court to have jurisdiction to hear any cause or claim by or on whether it is unconstitutional as applied here and that is what the nd circuit approach the case in rugby aversive home in and concluded that isis targeting of a prominent immigrant rights activist for deportation  well the case isn't moot because the challenge to deportation is still alive we are challenging the fact that he was supported in retaliation for the exercise of his core political speech is st amendment right and that this court can consequence from his deportation no your honor we're arguing that there is a direct consequence that his deportation itself was unlawful and that detention claims related to that  because if years returned as a result of that challenge his detention his future confinement would be subject to challenge and this might relate to this court's prior interlocutory denial so i do want to quickly address that the case you know and seen here that was truncated briefing where there was no final judgment and the court never reached the question of whether the constitution requires review and since that time there's been intervening case law the court didn't have the benefit of the understand what your argument is for why not move would you just review that with me in a little bit more detail please yes your honor the case isn't moot because mr rojas is challenging his deportation he's challenging the district court to address that issue and if the district i'm sorry how could we remedy the issue and surely it would work the same way in any case where an individual is challenging his deportation secret view to this court if the court finds that deportation was an error that individual would have the right to return to the united states and be restored to the status he was prior to the unlawful violation  using hay b s to challenge his confinement and his deportation at the time he files as he be skittish and he lives in the united states he has been here for nearly two decades and challenging confinement and deportation is precisely what haye vs has always been any attempt to invoke the route to obtain additional administrative review or continued authorization to stay in the country is an improper use  said is that the traditional remedy for haiti is is release from unlawful restraint on liberty and that is what an unlawful deportation order is and the supreme court makes that clear it makes it very clear that it was denying the  says that it is not disturbing that it is is actually preserving longstanding precedent that has held that this is because of the suspension clause some judicial intervention in deportation quick cases if i'm questionably required by individual should be treated as if he was at the border that having gone twenty five yards into the border having no initial contact to the us was not enough to convert this from a border entry case into a case of an individual with ties to the u s challenging deportation  determine whether they should apply the writ of the canon of constitutional avoidance to the interpretation of one thousand two hundred and fifty two g and and in this case what we're stating and this is what the nd circuit has held is that if there is an nineteen are not reviewable that is essentially saying that millions of people in the united states do not have a st amendment right at all and the constitution does not allow that under article three that the judiciary has to be able to review whether this claim eligibility requirements and a t v set is numerically available the us c i s must approve the application and so in this sense has his right to an adjudication of that application was denied by isis action ok so here's my question about her and if so what's your best authority for that yes your honor and essentially again the issue here is that isis actions were intended and this is our argument that their actions were intended to deprive him of his due process rights that adjudication to deprive him of the st amendment right to speak out and that by deporting him it cannot be the case that that triggers mootness because essentially that means if i was able to move quickly enough they're never able to the court is never able to review the case and that would fall into a moot if exception and the power to bring him back is to simply restore him to the status quo he would have been but for the error in the district court's opinion and certainly this court has done this in other cases where individuals have been deported pending with you they're saying versus attorney general which is a two thousand and fifteen case and that is that docket number that that have demonstrated there is unlawful action and this is something that the court the man's the decision to the district court or of a full review of his constitutional claim we would be able to work out with the government at that stage thank you provision if claims are moved as for the same reasons that were articulated by this court's decision in the mehmood case he is no longer detain and therefore this court  there is no relief from detention that this court can grant to him he is challenging his deportation which has already taken place and accordingly d the court cannot deportation from from taking place as the petitioner did have avenues for challenging his removal and he did not take advantage of those he entered the country the specs are undisputed that he entered the country in two thousand and overstayed a ninety day visa that he agreed to voluntarily return to argentina in two thousand and ten but then did not undisputed that he subject to a called made and made you says it's and it basically says it's interpretation of a is that only those specific three things that are mentioned in the statute are bar find that legal issues sort of preliminary legal issues that have to be determined before the discretionary decision can be made our review and that's what we help so why doesn't that  apply here well your honor i think that that doesn't apply here because this is a situation where the government did have discretion it's  order of removal as long as it wasn't doing it for an illegal reason and you know a b c says that you know there is possibly an outrageous st amendment scenario where there's an outrageous scenario where it could be a problem i mean it leaves open the door does it not i think that that language is best construed as dictum i think that the the  country after receiving his his notice of removal no one bothered him nothing happened until the documentary was made and he was asked to speak a the at the the film festival that seems problematic since i seem problematic to you i mean would you agree that if the reason he was deported was because he was exercising his st amendment rights that would be a problem think that that's those cases would push back on that that that plane well why would we send it back if we found that there were you know if we found that it wasn't moved and there was jurisdiction and if there were jurisdiction i guess is it would require us to take a preliminary look at these merits but why would they not then send it back to the district court to do the st take  think your honor if that is the fact that the court ended up taking that that would be the appropriate remedy would be to remind it to the district court to be able to flush out those those issues in the st instance but that's not the remedy that the petitioner here is the petitioner wants us to order his return from argentina so that he can be in court to detention and that is not what is being sought here what's being sought here is a person who is under stupidly does not have legal status to be present in the united states right now  position isn't it i don't believe that is the government's position certainly not making that argument here today and we didn't make that argument nor prefer i think to what i want to i'm interested in what you're going to say sorry for interrupting case and of course we all know that the executive power is at its height at the border but this is not a border case do you do you disagree with that  immigration but here congress has very clearly set out that there are ways to challenge your removal proceedings and that would be an example of where immigration proceedings i think that there are three specific exceptions that are that are outlined in the statute where there are very specific factual issues about you know the identity of the person or those those type of issues again i apologize i can provide that  seems to me your position is we don't have to adjudicate these claims because we can just go ahead and the port people and then their case is moot i mean that that just seems to me it can't be right application of constitutional statutory provisions arising from any action taken or proceeding to remove an alien from the united states subject or shall be available only judicial review of a final order under the section and that gets would allow him to return to the united states and so that's the situation where it's just that the specific choices that were made litigate this particular case that have cut counsel just to put a finer point i think on what judge martin may be asking it seems to me what's imagine a case where we know with certainty that the only reason a person is supported is because presumption on this question how would the person assuming what happened along the way here how would the person go about having that review how would you i mean you know in a situation where there's an order for move all but the order of removal is many years old no one's acting on it but then there is an exercise the person meant there is really is actually removed you know the execution of the removal order begin how would you how would he what would have been the appropriate way for him to go about challenging that and to have that heard before he was that how would that work i mean if that if the challenges to the execution of the removal order but it's not actually challenging the removal order is only challenging the execution of it because it's being executed for an unconstitutional reason how would that work in the motion to pat is that addressed the issue and wouldn't you then say what you're saying here today which is you know you can't do it under the jurisdiction stripping provision i think the the way that he would do it would be that they don't clear then with the board of immigration just to be clear you're saying that there's not a way that he could succeed on such a claim no matter how he could file a motion for reopening including a motion to stay his his removal with the board of immigration appeals and they would have jurisdiction to address the the claims that that he would br of supervision in two thousand and nineteen we're challenging i said actions to remove him in violation of his st amendment rights these are not claims that can be brought to the typical removal process because the entire removal proceedings process including motions to reopen relate to the validity of an underlying removal order this is the kind of now or never a claim that justice ginsburg in the a t c case and her concurrence explained would require judicial president and thank you your honor i appreciate that given the fact that mr rojas has been deported and we are arguing that the district court's error is that they the district court didn't even reach the st amendment claim it didn't reach the constitutional issues well we believe this court does have the authority to order mr rojas to return that that is the minimum what we're asking we're asking at minimum that this court remand the case to the district court to consider the constitutional claim and at that point we can discuss whether it's appropriate for m an order of supervision is not one of the actions discussed in one thousand two hundred and fifty two g and as we discussed the circuits precedent in ma do does say that courts do have the authority to review the legality of these underlying orders and if that is the direction th violation in this case and we think that's incredibly important here because it is our allegation that but for mr rojas of activism he wouldn't have been deported we're not arguing that the government has no authority to deport him whatsoever we're saying that he can't be deported for an unconstitutional event and that's what makes this a classic st amendment case in line with terry versus internet and all of the other cases that said that the government can't do certain actions based on people's protected  outrageous discrimination essentially whether this case fits the a t c outrageous discrimination opening without mr ross being here now it would be our position before the district court that if the district court finds that there is a viable claim then certainly mr rojas would have the right to participate and there are plenty of mechanisms that ice has to bring individuals back through humanitarian parole to restore him to a sort of supervision but that's not issues that this court necessarily needs to decide nor does it implicate havey of power in terms of the court's order since it depends on the nature and the scope of the st amendment claim an issue and that's something that the district court can decide on dream and that the main problem in this case is that the district court essentially didn't reach the st amendment issue at all and that effectively tells ice that they may arrest detain and deport any immigrant who dares to criticize them without judicial review and as the amicus brief in this case describes that's a huge st amendment problem not only because it chills the speech of immigrants but it hinders the entire public's understanding of immigration policies and it allows a government agency to manipulate the public debate and that's exactly what the st amendment at its core was designed to protect against there's a reason that the supreme court in a t c held open the possibility of this kind of outrageous st amendment claim and for the with respect to the government's argument pointing to where they argue that probable cause for arrest is a reason to not recognize a st amendment claim that places no application here in the criminal case in the damages context and if you read justice gors concurrence in that case he makes it very clear that when police do target individuals because of their protected political speech that is a st amendment violation the question in the case wasn't whether they were violating the st amendment it was whether there could be a cause for damages on the  rejected a request from a journalist to speak with them he had been checking in for seven years without incident including at least six appointments under the current administration this is tied to the proximity of the criticism of him being a protagonist in a film critical of ice a chilling message across the immigrant rights debate and we ask that this court send it back down to the district court to actually live look at the st amendment issue thank you stuff i found the argument very helpful