the question whether it is a it is appropriate to detain an individual pending removal potentially for months or even years without giving him the opportunity to show that he will never in fact be ordered removed in so doing the really to the very heart of the liberty that due process protects so though this really i mean the question is to what extent does this person fit within one thousand two hundred and twenty six c what standard do you want us to adopt in order to assess that and the nd question is whether even if they do they should have the right to raise the question about whether they will ultimately be deported because they will have the opportunity and will potentially likely obtain either cancellation of removal or adjustment under the relevant statutory provisions that means that they will never actually be removed or deported that really fundamentally iran or is the question regard to both our argument is that the quote that the standard we suggest a standard that is that if a diff if they if a detainee under those circumstances has a substantial argument that they will not be removed that they then are entitled to a bond hearing not that it would be released but at that point they would be entitled to a bond hearing at which their risk of flight into a danger to the community can be considered that is the standard that we but anyway and under our belt statutes that makes clear that for bail pending appeal that what a quarter cecille is in addition to risk of flight in danger to the community is whether a defendant or the circumstances has a substantial argument rejected by the majority i mean any to extent they do more majority was undergoing to take that on and at end we're looking at for in terms of analogy is things like you know pretrial detention or even true revocation hearing seem closer why wouldn't we be looking at a probable cause standard with the burden as it typically is where there's a deprivation of liberty on the government so your honor let me st address your point about two more you're right of course that the majority and the more did not adopt that position nor however did the was not presented by the more and the more says that one of the things that the more clearly says is that the appropriate standard for these so called joseph hearings is one that it was not going to confront in that context it simply wasn't going to deal with it and this court in india has likewise said that the more did not resolve that question so that's the st the entry of st part of your questions or cross with regard to the nd part of your question which has to do with burden's obviously the burden  we quarrel with the burden that set forth in joseph which is one that's imposed upon the detainee but our bigger quarrel and i just want to focus because there's a lot of issues in this case but our bigger our bigger quarrel is with the idea that one has no opportunity to even advance the argument that at the end of the day he or she will not be deported that that undermines the whole purposes of detention and we know from that the constitution requires that in cases of the tension the most fundamental of all liberty interests are at stake and the procedural protections to which one is entitle should be should be very great but what do we do with the language and do more in jennings in pre op that that anticipates that the ultimate decision about removal is yet to be made and anticipates the possibility that  fundamental point is that as a matter of procedural due process it is simply unconstitutional to not allow a person who's going to be detained for potentially months or years and not even an rance an argument that he or she will ultimately never be deported that that you know the good government makes the argument that that would require you know many hearings or whatever to peek into the merits you know  in my experience really good at that and they do it in the bell context initially when you look at the merits of a case to decide whether someone's going to be released they are required to look at the strength of the evidence or because the brains they do it for bail pending already in the context of determinations as to whether detention is to prolong one of the things they look at is the ultimate merits but to your point you know your point goes to the question of what is  as i said take great save that the statute is ambiguous but even if that isn't even if the statute stands weirdly with the idea that those types of arguments and not the name then it violates due process then it is a fundamental constitutional of government to separate what's what the appropriate standard is but but but what i mean by it is and again here we don't write on a blank slate this court has said in its jurisprudence regarding  is has a substantial basis to believe that he or she will never be deported that by the way statistically that's not a crazy claim as we said within our papers and as the record here makes clear forty one percent of the people in the class at issue here actually made those applications and fifty percent of them had them granted so something like twenty percent of people of my math is right actually ultimately never get acquitted that was then that they're held three years but but what what what from the supreme court that things like it admissible a reason of having committed an offense or deportable is simply a status and and so the focus really needs to be on fitting into that category and leaving aside what congress and the supreme court into who are arguably have already decided which is if you fall into that category there's an rebuttable  respectfully alright i'm not so sure that congress decided that if they did impose that rebuttable presumption then that would be unconstitutional but having said that you're quite right that we don't really  assess the quit that much in terms of saying what the standard ought to be we say two things in our papers here and that's our position st of all that the burden should be on the on the government to prove that one belongs in the should the government should bear the burden of showing and we think the standard of probable cause is too low i would be respectfully think that a standard of at least a preponderance would be required that a person belongs in the category of people who are subject to mandatory detention this is important because in some of the serious things like crimes involving moral turpitude or aggravated felony are often the subject of tremendous dispute between the parties  there really are real questions that arise as to whether someone belongs in that category or doesn't and as to whether offenses belong in a category or did in this case in our case one of our name plaintiffs it was a significant issue and ultimately of the court concluded this court concluded that that the that mr sukkos offense then was not a crime involving moral turpitude that the government should bear the burden if somebody is going to be deprived of their liberty of showing that in the very st instance but even if they successfully do it are really want to focus the court event all possible on the question which i respectfully think was not at all decided by the more as to whether once you're in that category you necessarily have to be held without even bond hearing it would you could show that you are not a risk of flight or a danger to the community because you are likely never to be deported as opposed to sitting in prison for months or even years without having an opportunity so so that that that issue that you're focusing on you you don't take issue with the government's reading of the statute since that's the outcome under the statute you're just saying that that statute is not it's not constitutional might be processed that that is constant reading that would be clearly constitutional there's you know there's good arguments for the ambiguity of the statute the government itself concedes that the word deportable is used in more than one way in the statute mean i don't want to briley press here today the ambiguity argument as much as we do in our brief i do think that there's a good argument that there's some confusion as to that that congress knows how to say irrespective of any relief from removal there's a common sense jim crow interpretation of the idea that one is not run movable or deportable unless they're not if they're not going to be deported and by the way even in de more it the notion of the portability is is defined in terms of the course of the more successful removal from the country so i think that there's an argument that it's there it's ambiguous but our main argument today is that even if it's to the judge phipps point is that even if we were to concede that the statute is clear and a point that renders the statute constitutionally vulnerable indeed i think it's really you know it outrageous that somebody could be held for such a long time even though it's can be ascertained from the outset that they will never have to leave the country oh go on that point in terms of time and reasonably long time doesn't german santos  that's a long time so we could be talking about is for months and months even before you reach the point at which that which did the detention is outrageously long someone is sitting in prison even though it could have been ascertained at the outset that that was not what was likely to happen in the notion that somebody can even make that showing and then can proceed to a bond hearing where they can show that they are not a risk of flight or danger to the community which is by the way what congress was really worried about when it passed this when it pas at the time is it is it is to me something that that should be taken into account in determining whether the procedures are adequate well one fact question before and maybe you will notice before we move on to the other issue that you brought up which is the contemporaneous record whether it needs to be made over there in order to comply with due process of the forty one percent challenge removal you know how many are in the st category  thank you for thank you for translating so the all forty one percent well every one of those people are people who applied for discretionary relief under one of three provisions either for cancellation  for adjustment or for asylum all of them flaunt of that caliber so all of them are people who fell within the category of people who may be mandatorily detained but ultimately nonetheless were not  the those statistics of control for that is those that this is for the people who have already been held by the immigration court to fall within the category they were ordered to sack carry see people who are being held under category see that they feel that they're committed either crime of moral turpitude or or aggravated felony and so now they were applying for discretionary relief but all of them did fall within the category of people who were category that the standard should be at least  bible i think this look we all know that both burdens and standards of proof depend upon the interests involved and when we're talking about something as serious as the tension i think a clear and convincing standard is would be appropriate and by the way i should note that in most of these cases maybe record should be made of that so that so courts can access meaningful appellate review but but it but in any event yes i mean i think a clear convincing standard would be would absolutely be appropriate given the interest even notwithstanding that there's recording equipment in the court rooms recording equipment is turned off and we had a pretty extraordinary deposition in this case where we actually deposed the head of the chief immigration judge for the district who testified that that's what they do instead they're so there was no contemporaneous record made instead they're simply at a sheet with with boxes that are checked and that's the full record that makes its way up to the to the board of immigration that's not too many facts not not not too many issues that are ever going to be recorded you know you do need anything more than that box being checked being checked probably gives you just about anything you ever are not checked gives you just about anything you need for later now there might be other instances where you could say gee it's back and then or something else like that's in place but it's writes me that there's at least some instances where the box is sufficient on its own for the record and there are some instances your hon but but the two quick observations on it st of all the fact that there are some instances where the facts are not really disputed doesn't mean that there should be an opportunity to dispute them when there are disputes and let me just give an example of a that i'm involved in now and does not part of the record i apologize for happening mean it does happen that there's a dispute in the aggravated felony context about whether there was there was a there was ten thousand dollars and because that's the threshold for aggravated felony and so so they're times when immigration judges do not give the parties an adequate opportunity to argue those facts or to present them we in this court has reversed a number of decisions based upon prettiest pretty significant misconduct on the part of immigration judges misconduct that would not come to light were not for the fact that in those cases because they were in a different setting there was a full record made on this issue really has to do with the ability of this court and so then the release that you seek is to kind of mandatorily compel recording in all instance cooling the bowels in which a paper record is sufficient i mean it strikes me that there would be kind of smaller steps along the way where you could say a a person of joseph hearing an alien in a joe's hearing has the option to request recording and they must be given that option as opposed to saying every single one of these must be is a matter of constitutional was i mean that that strikes me as a very over inclusive rule of conall and what why why aren't there smaller kind of more were fights size approaches  could present instead of kind of asking for the whole con one mouthfull yeah i i think i think you're right that there are small steps that could be taken in some cases before about this in this way what know is that if there is that if you had a transcript in every case then you know that could easily take care of what's otherwise on a piece of paper the judge could say it would be a two page transcript  this and there's no dispute and you would have a record of it the flip side that is to say that what's on the sheet of paper could easily can be converted to the transcript but that but that the converse is not true that is if you have all you allow is a piece of paper due process they entered to say well we gave you the option you left it for or you you chose against it if you chose against it it due process at least in this context rights means subject to illian selection there are certain con l rights that you cannot work out why isn't this one of those as opposed to being mandatory for all times all places in an over inclusive way i understand your point ron and i thoroughly think giving  detainees under the circumstances the option is far better than the regime we have today where they do not have an option where simply is never done so and it may be in some subset of cases be constitutionally adequate  i would respectfully suggest that it's probably a better course to not leave that up to an un council detained he ended and a judge but rather just the have a blanket rule particularly where it's so easy and by the way it's become easier today where were these proceedings are being done typically remotely anyway so the equipment is there there's really no excuse to not it's in some ways the most the minister bull simplest way just to record the proceedings the way ray pursues a record in courtrooms all around the country every day if you maybe you remember practical perspective but i think the troops question is how can it be unconstitutional to give the option of recording to that now so that so it may be that this is the sort of thing that is is best decided as applied to a particular case i think that  the the better course is for this court to provide some guidance as to what's what's required if the if the if the answer is that there can be a knowing and voluntary waiver just rip it correctly suggest that this constitutional rights are knowingly involuntarily waived every time but respectfully i think that you know if you talk about opening a pandora's box the penders boxes that's going to be opened is the you know did it detainees knowingly in voluntarily waive the right to have a transcript made it  just it's simply a matter of pushing a button and it seems to me the easier and better way to do it but i would agree with you that that would be a that would be a step in the right direction chris let's make it seems that in making that sort of choice for it to be no in voluntary it would be necessary to know how the decision was going to be rendered and what decisions going to be with the bases was going to be is there is there any preview of that or right to record a candle iran i don't know the answer to my question i don't practice regularly in immigration courts i would suspect based upon the little i do know that the answer to that question is yes sometimes i'm in no other times that sometimes somebody really does have a pretty good idea of what's going to happen and sometimes it's hotly disputed but honestly i would say i don't know the answer maybe the mr sampat has knows that answer a question better than i do in do you know the percentage of those in your prostate cases written counsel i don't i don't know the i don't know i do know that the best majority are per se but i but i don't know exactly and that was not part of the record i thought hard about that descent and joseph which spouses in likelihood of success on the merits standard and i have no real quarrel with a likelihood of success on the merits standard it's a it's a somewhat higher standard i think then a substantial argument standard and i have a spouse the substantial argument standard because that standard was approved by the supreme court as part of its ruling in salerno that the tension could be constitutional so that's why we chose that standard to be to be clear but my main argument is th there has to be some opportunity as a matter of procedural due process for detainees and to show that he's unlikely to be deported i think a substantial the substantial argument standard is one that has binds justification in more directly i'm sorry just just the just the categories yeah fair enough i mean it's so in in in joseph they were not dealing with the issue of of of whether one could raise questions of the likelihood of obtaining discretionary relief so you are correct that was really just going to the question about whether someone belonged in the twenty three thousand and sixty category so you're right that they weren't really addressing it since then decisions of the b a have made clear that the question of discretion relief has nope plays no role whatsoever in the sit in joseph hearings they further question ok thank you thank you times already and twice just in the last three years with these decisions excuse me and a more jennings and pre op so you know the government respectfully request that they eat that this court affirmed the district court's decision regarding the interpretation and the burden allocation you rely heavily on the more but back then it was the understanding that the delays were in the neighborhood of five months and that is you know in twenty six team the swiss are general but are sent to the mandatory detention that he even had as it has seemingly approved some sort of categorical detention the court is also recognize that there is a showing to be made at the outset today in that you agree has not been addressed by the supreme court or our court yes it would it yes what we do you can see that that has not been addressed by the by the by the tears or ignored by me nor by the supreme court but to address the burden allocation argument whether you're in for two hundred and sixty eight is identical you could just say you've got or you've just got the wrong person and so what ever the minimal standard is shouldn't we be just confident that that standard make sure that we aren't detaining the wrong person for three hundred and eighty two dollars days in this probable cause maybe it is is it a good enough standard to assure us that at the bare minimum we've got the right person yes your honor i think probable cause is the or so so again i'm sorry for her because you know that's that's great that makes a lot of sense of the real hearing where the next day or the next week but but but it but i think the reality is maybe the real hearing isn't quite the next day probable cause on a percentage scale where do you put it is that somewhere between thirty three and forty percent twenty five and thirty three let roughly what is it is probably under fifty right under fifty and i think you'd be a little difficult to say because again probable cause would depend on different circumstances and different individuals but so i guess let's just say it's forty percent so so we could have an identity issue and we could say you know we're going to take this person for maybe three hundred and eighty two dollars days d because we have evidence at about forty percent confidence rate that this is the right person and and you're saying that that that due process requires nothing more than that yes your honor because if it gets too long they'll be looking back and remedies but but but but but those don't give you time back those are just kind of ways out right right but again for the eliot it almost seems like the most prudent course at that point is to move to terminate proceedings not so much to argue about whether or not they're subject to one thousand two hundred and twenty six dollars saying right and and that that's on that's on that's a burden on the alien themselves because again i think it would be i think it would be a little weird for somebody to file and argue about detention and whether they're not subject or whether or not excusing their subject to mentor detention when their argument is we're not this individual at that point why not file a motion to terminate proceedings and say i'm not this person immigration judge please i mean out of custody and have the immigration make that determination their resolution with that even if they do that that that may be subject to talk to a sexy and then voter but that doesn't doesn't that just that that seems to prove too much because if if the concerns are the risk of flight and and potential danger that follows from someone properly being categorized in prop twenty six see then if there is proof that they do not belong in that category whether as a categorical matter or is is applicable and what is your position as to who bears the burden and what the state standard of proof should be going to use probable cause in many circumstances but typically there is some kind of burden shifting with the recognition that ultimately it's the government that has the burden of persuasion and it's by clear and convincing evidence and here you're asking us the government doesn't think so and we think the probable cause standard is appropriate and meets constitutional muster but should the court addressing your point of view no assuming that the court says that no difference enters required i think i think it would issue that would probably need to be further brief because both parties haven't necessarily addressed those points and you know as as mr lunsford went out is that there's no real alternative that was proposed and everything in the government never had an opportunity to respond now preponderance of maybe maybe make sense but again this would be something that it would probably be better addressed with with additional briefings on that so so if the standard were preponderance is more likely than not you you  stronger case right you could say well look this is this is much much more defensible we convinced ourselves at the front end that it's more likely than not this person falls into the mandatory  that's that's a better argument then we have probable cause you might have probable cause to to you know start the process but but but once you want to to continue the process ask if you could clarify what you mean when you say probable cause on the front end would be ok but then after that i would not because you know under very very kind of on the reason to believe on what it takes to even start a detention hearing right  start this process down the road before joseph hearing even takes place there has to be some show the question is what needs to take place at the joseph hearing and so i can see a probable cause having a rule before a joseph  showing it's somewhere between reasonable even probable cause and then the question is what's the standard joseph you're what you would expect would be a slightly elevated standard from the initial sting that's that's what i'm getting  again i think for  where we don't want to get down and it doesn't make much sense it would be prudent frankly to get bogged down in whether or not somebody has a substantial challenger or something to their to whether or not they're subject to t succeed because it would turn into these mini hearings where an immigration judge would have to make a determination as to whether or not someone is likely or may not be likely to get some form or relief so the probable cause standard addresses that by saying is this individual subject to trial twenty six e just a part of the court's example in there is the government forty percent sure that the individual subject to draw from sixty because it is either is the individual that subject mandatory detention or is a substantially unlikely to prove that they're not allows the government to again make that determination and and say this is the individual that is going to be detained and should that individual's detention become so prolonged they can then follow hevia petition in would require that hearing to have some review of whether or not somebody said it's mandatory detention but you're saying is that the stand is to it's the same standard that was already applied and already deemed satisfied by the agency but there's a but there is now a neutral ar iter to determine whether or not ones that showing is made at the government's position is that at that point the government has no further burden the government's burden in terms of what it my show is the same as what ice needed to that the government is substantially unlikely to prevail in the fact that the individual subject to military detention what distinguishes this situation from say adding to and civil commitment contacts where we require a clear and convincing standard to be satisfied before someone can be detained for a prolonged period the burden being on the government to make that showing not on had has operated with bypassing different different provisions of the i know that that may be true when it comes to the removal the removal hearing but again we're talking about what you agreed at the outset was an open question about what the threshold showing needs to be to trigger that mandatory detention and why didn't that why shouldn't that be a burden on the government  rather than the detainee and and why when we're dealing with a sort of mandatory detention scheme why why should we look to the other mandatory detention schemes  our our code that use a clear and convincing standard respectfully or i think the three that again immigration proceedings are fundamentally different and when it comes to the probable cause standard as the as it currently exists properly reflects what congress is intent was when it passed all twenty six dollars and we're ensuring that these individuals would be detained for because they at least option to record in the in the in maybe not in every case but one why not giving a person facing this type of attention when they want to have their meaningful opportunity vrba be given them extra process as you've said suggest that in this math is be eldridge balancing flexible test that will please give a person the option to record this is especially if it's going to involves but dispute under your view of probable questions as to whether or not there is whether or not the condition makes so so let's say let's say most of them do let's say most of it's check the parts aggravated felony or not ok let's say most of them do but but but but your brief says facial challenges but there's also factual challenges and sometimes it may bring a factual challenge as a heap of factual record actually matters to me here because i want to tell you that it's my cousin that you're after not me and we have  here is whether or not as a matter of constitutionality one to have a record of his art at all times and judgeships as he as you acknowledge during mr lost time you know it seems to be an overreach to say that's what the constitution requires so it's not that an individual is deprived of the opportunity to hear to ask or they may ask and they may request one if needed or if they would like but it's left to the immigration judge in his or her discretion to record it how do we know if for a question was ever me and this is kind of feels like philosophy to me a little bit you know but it was look if we if we don't ever record it how do we know i mean maybe we can just it may be just sort of a form afterwards says no request was made to record maybe that's good and then the partially due respect no knowing voluntary intelligent request was made i mean how much do you have to put on the parts in and where we go if it if it's a waiver and if it's not a waiver that means that there's no right and so i guess if we find there's no right then there's no need for a waiver it was just an option was made out of just you know the  the neutral at the at the josep here it was more than the constitution allowed and so maybe there's not a need for a waiver but how do we know if there's not some record and we just we're just going to accept the the paper record to but again this is no different than if it then any other civil appeal right in the sense that if a party submit a summary judgment motion in district court and there's a hearing that decision is reviewed based on the decision in order t order is not on not on what happened at that hearing correct so it would be it is similar to that being where and almost really analogous to say those recordings are not required there there should be one less burdensome as opposed to doing a post hearing well your honor it's that in the army here is a matter of what the constitution requires and the government's position is that the constitution necessarily briefed by the parties in this it is not briefed by the parties but it's a matter of the government's argument here is that just a matter of constitutionality of courting is not it's a witness at times credibility determinations to be made and testimony that is given at least by the detainee if not other witnesses that does not counsel in favor of having some record of what was actually  said it does vary but it doesn't need to be a contemporaneous record again the immigration judges sit in there you know in preparing to buy a memo is listening to the testimony and prepares this memo that is then eventually turned into a written decision here for lack of a better word or phrase that require immigration judges to turn on to turn off the removal proceedings segment or server and because most of these hearings do turn on so and so so i mean i mean but but but but i mean a lot of this comes down to like law of averages like sometimes it may just turn on whether something's an aggravated felony sometimes it may involve a lot of witness testimony and a lot of facts a lot of other and so it seems that there's it seems that there's problems on both sides right because the problem that you face is not recording is a problem for the instances that aren't is aggravated you know is this crime an aggravated felony that that's a problem on your side the problem on the other side is that this is a class it's a b two class and we have jennings interpreted what wal mart be dupes which says you have to give meaningful relief to every person in in connection with their grievance and if this class is everyone regardless of what sort of challenge they bring then there's this other problem of well what about the people who don't really have a due process trigger where the cure question of law may be addressed by our form afterwards st the other set of people who are in the same class it may have been really big cancelation adjustment identity issues and so it strikes me that that that both sides have a problem since this is a class that was an individual might be able to look at eleven individual case and say well in this individual circumstance more was required but in other cases i'm not sure more is required so isn't your strongest argument not that there are gaps but that jennings says that there has to be class wide relieve the remedies injury that every class member matter of immigration judges exercising certain discretionary authority to determine when those recordings are required and when not so that would be it's sort of as you are acknowledging honored you know certain cases may require it where there is some factual record that needs to be developed and and needs to be properly recorded and for those circumstances an immigration judge can and sometimes do turn on recording equipment to allow them to allow them to have a  for a while ago that and in in almost all of these cases which really at issue is just a paper showing that someone has been convicted and if if that's the case and it's that easy to show the least the likelihood that someone falls into it pull twenty six c category and then what is that what is the problem for the government in terms of these hearings are meant for these polemic narry determinations as to what of a custody determinations they're not meant to turn into you know as as we know in our brief many trials or many hearings as to whether or not somebody can or will be as the supreme court has recognized by turning these into these many hearings and trials are we really free to look to that after german said to us within our circuit and to the extent that we've we've already decided that a clear and convincing with an individual who is living getting the remove ability the subject to talk twenty six he did not raise any note that there was a question of constitutionality whether they were subject and really and it's and it's and its predecessors really talk about due process being instituted in due process protections that would kick in after detention has been prolonged so again this court has provided due process protections at the back end by saying that somebody somewhere to talk to i sixty may receive some form of relief which is in the form of released from detention our start and in the form of a body hearing for an immigration judge to challenge whether or not they should or they should issue which has to do with whether the injunction that was issued here was appropriate under the statute and let me just say i think when the court looks at that issue if you consider very carefully whether that issue was even injunction is inappropriate it's been waived it's not before the court their response to that is that it's jurisdictional but i would respectfully refer the court to justice scalia's opinion in steel company versus citizens for on relief he uses the phrase jurisdiction in the text of the statute but it really has to do with limitations on relief and as such if the government was concerned that the court overstepped it was required to have appeal that and to maintained and have maintained that appeal having said all of that as this court made clear in the footnote upon which the government realized the st time around in your opinion judge kraus that under under  but the government has determined not to cross beyond that i'll conclude with this and i do really appreciate the amount of time that the court has given to this matter which is very important you know the government argues in response to judge process questions that the due process cases to which to which you know honors refer are not applicable here because we are in the immigration context one of the most remarkable things about the government's papers in this case is its complete prevent flights in danger to the community the the regime that we've proposed is one that would do that it would just simply not would not detain people for  as the court pointed out on the average more than a year when ultimately they will they would not be detained and it will give them full the full range of due process protections much greater than probable cause which is on the very low end of standards of proof in our system of justice so that was so that courts can be assured that those who are detained really ought to be and that's what this appeal is fundamentally about you know i really want to thank yes of course yes thank you very much for the exceptional work you you do and thanks to the government for the exceptional work that it does they we would ask that a transcript be prepared of this or argument if it's ok with mr