when you see good morning good morning your honor may please the court legal learn from the a c l u for petitioners i'd like to reserve four minutes for rebuttal if that's ok the petitioner in this case entered the country the supreme court has never in the history of this country allowed someone who has entered this country to be removed without review of his legal claims nor has this court in the history of the country ever allowed that the government's position is well he was only here for a little while and heard unlawfully and so they make three essential three arguments as i as i understand it the first is they link corpus to due process and say he doesn't have any due process rights because he was only in the country a little while therefore he doesn't have a b s corpus rights is is or he is corpus rights tied to due process right no your honor and that's exactly the point i want to make to start out with to begin with it can't be in this court has made that point and flores merriment this and the supreme court made it implementing it and one of the most obvious reasons it can't be linked is because this is spencer and clause was in the original constitution the bill of rights in the fifth amendment came four years later this is spent on clause was designed to ensure the legality of deprivations of liberty and when it was first in what that meant is to ensure compliance with statutes and regulations only later did the bill of rights get enacted so it absolutely can't be linked to many and made that point not only about the get the bill of rights being four years later but to due process what do we apply to determine whether or not this is mentioned your honor i think what you would do is simply look to your courts cases and the supreme court's cases and what the supreme court has said is hey vs corpus must be available to challenge removal authors and they have never suggested they said that in saying syria iran and syria which was read people who were living in the united states iraq and they were basically legal permanent resident yes you are and you see no difference between a legal permanent resident and an individual who's just arrived at the border where you are are i that's the point i want to actually get you i wanted to get that right because so that's the crux of the government's argument is i think there's no question that saying see or how that for lawful permanent residents this court has then gone on to expand it and you take ramadan with someone who overstayed their visa wasn't a lawful permanent resident but where you see that recent c doesn't matter for the suspension clause i think there are two main places one is the finality era cases insincere you look to those cases because during that era congress did what the government says has happened now it said look we're no more review in federal court the only review can that be that which is required by the suspension cla and you look at those cases they routinely reviewed hippias corpus petitions even from individuals stopped at a port of entry never even made it into the country routinely reviewed that's the e q case from eight hundred ninety two it's g joe a bunch of other cases and those are what do we do i mean there's a whole history of those finale cases then fitting in with later cases and the supreme court in making certain limiting statements we have in the ninth circuit at least two cases that would restrict this panel it seems to me both during and ana so i'd appreciate your applicability of those cases right so let me start with your first question about later supreme court cases i don't think there's ever been a supreme court case restricting the suspension clause by any means cyr interchangeably relied on cases of lawful permanent residents as well as people at the border then you have to marry in applying the suspension clause to individuals never came close to stepping foot in this country who are a suspension clause doesn't work that way it's whether the government has control over your so that i think puts a complete end to it let me address directly we'll go back to the and because i think i might have some disagreement with you on how  apply here but why don't we start with the pain and rightly so they were calling your honor was an arriving meaning at a port of entry not asylum case so i think at a minimum this court would say whatever day we're calling men to do it can resolve the suspension clause rights of someone who actually entered the country even on the government's own theory that you're connecting due process someone at a port of entry i think given how momentous the question who's here today to read there were cones two sentences beyond the facts it presented i think the government's wrong to suggest that that panel meant to resolve every suspension clause issue including for individuals who entered the country and so on pena opinio was a petition for of you straight to this court it wasn't a hey b s case and it had no discussion by the petitioners of the suspension clause it only addressed the webster principle specifically said we're going to add this sentence the petitioner has no color bill constitutional claim and then only then added the additional language and there may be other avenues of review but ultimately the holding there was there was no colorable constitutional claim and so i think to read this is such a momentous question for the first time in history for the spur quarter of this court to say someone who entered the country has no suspense clause right and  review of legal and constitutional claims i don't believe that the government is right that they should attribute to those other panels where they weren't the same facts and procedural posture that kind of zero ruling you're a little bit giving interviews when you think no right a sufficient scope of review it has to provide you were view of legal claims not just essential mistaken factual claims which is what the statute does and that is the supreme court in st cyr said application of the law interpretation of only do you have to go to get into court on hay vs corpus but you have to have a certain scope of review and what the american said is it's uncontroversial that it at least has to include the application of law and legal claims and so we do not think we don't even understand the government to be saying that to many and says this might be extraterritorial this is in the country and so that threshold step and that probably one of the difficulties of many and of course is that question about well what kind of citizenship for detaining is going on here so it seems hard to translate that guantanamo exit jesus into a situation here do we just ignore that part of the many and because it's not applicable what's your view on your own and that's a very good question i think you do ignore it because that part is not even relevant the only reason it was an issue  it was so novel it wasn't actually novel historically as all the historians breeze pointed out of a supreme court in the ultimately concluded but it was novel because they were act on time tomorrow which wasn't theirs or u s sovereignty and so that's the only reason the supreme court had to deal about committee and that i think is critical is when it finally said let's see what the suspension was requires it said the scope or review uncontroversially hostile include legal claims this is that you only allows mistaken factual claims the other part about just the recen all those cases in order to hold that someone on u s soil does not have suspension clause rights and ultimately what i think the government is saying and i see my time i'm going to rebuttal is congress wants this but that's no different than historically congress in the finality or want to limit habeas review the one thing the supreme court has never let congress to is limit his b s corpus rights they were just as dissatisfied eight hundred ninety one when they doesn't isn't sufficient is that yes you're right ok and you're not arguing that we could construe the statute to somehow rather allow this kind of review that you just mentioned we have that argument in our in our brief not really doesn't i mean maybe and say that there probably is now review of factual claims but i want to put that aside because he's raising legal claims he would just do the normal sort of immigration review of legal claims and decide whether any of the regulations or statutes were violated and then most likely he would say the person needs another hearing and i would say that if you look at the transcripts very quickly so what's the relief you're asking then if you were to prove it just send it back to the district court to conduct a duty this remember it's absolutely  running out of your time so we'll give you some more thank you right this statute that we're actually talking about talks about aliens that are arriving in the united states so if i arrived at the san port of entry do you think that that individual petitioner would stand in different footing then mr through i guess for due process right absolutely for suspension clause rights we don't believe that the history of haiti is corpus would suggest that person is not a title to hate b s but i do think you don't need to reach that issue and especially if the court is and i'm just trying to understand the differences so if that person had no due process rights but the immigration officer were inattentive and by a miracle you could just kind of shoot by the immigration officer and get is central to this whole ok so debate let me i'd like to understand your position yes so let me let me try and fully explain it from a due process standpoint that's where the supreme court has crossed the line now the government is saying well that creates an incentive would get would get due process rights by virtue of using persons and it's a territorial rule but they decided they didn't want people at a port of entry to have to process so they carved it out that way well aware that obviously the give and take could be people who wanted to get into u s soil would have more rights but they decided that was the price to pay but for suspension and i just i think as a factual matter very few people think i can get due process rights but not statutory rights and make that calculation when they're coming in but putting that aside that factual well i mean if in fact if you're concerned about being able to go through an official port of entry then you might want to arrive here through other means sometimes in the brief concert  but you know basically right not going through an official port but entry so your honor the thing about the suspension clause that's so special is the supreme court has decided yes due process rights are going to turn on what's essentially an artificial line they know that the line has pros and cons but they've stuck to it as this court has for over one hundred years the suspension clause is different the supreme court has never allowed anybody on u s soil even  someone had a port aventura and that's all the cases we've talked about gee joe e q all that he has is to not have suspension was right so what it would mean for someone at a port of entry is they couldn't have due process rights but on the merits if the immigration officer violated may have addressed the suspension clause the only thing it could have addressed if they were calling addressed a special cause is the only thing it could have addressed is for people who are arriving and so this court doesn't need to address that but you would say that even though there's been a if what you know again this is the immigration law professors brief the hevia scholars brief if congress could manipulate whether you get suspension those rights or even due process rights to be nothing left i mean that's the very reason justice kennedy  interest to what they perceive as efficiency in policy goals they can not by statute say well you're now labeled this and therefore you don't get suspension plus rights or even due process rights i mean that's always been what the political so then and sincere the government argued for roche asli to say congress has plenary powers decided they don't want to hate us the court rejected it because this is suspension clause as ultimately about a check on the political branches thank you thank you foot across the line even at a port of entry that a different analysis suddenly applies i think is is really there the essence of their case and it's certainly the main point of contention here has always been a procedural mechanism it is to enforce rights to make sure and sure that the proceedings that occurred below or from another court or are adequate that said when someone doesn't have any due process rights there's a slightly different calculation that needs to occur you know with respect to st cyr in too many and i know that those are earned point cases here we acknowledge that but ultimately what st cyr holds is that the core of habeas that they're going to do that the idea of if someone steps on foot across the line in a port of entry they get that core well that might be true but what is it to effect if you go back to st cyr there step one and then there cept for the purposes of step two who many declined to decide that issue remanded below for the purposes of suspension cause they they exist separately we have knowledge of course that there are different parts of the constitution i think however that because the fifth amendment was ratified after seventeen nine it's important to read them in harmony because if you think about when the ratification of the initial publication of outside us back twelve fifteen but the point with respect to that is that it's a procedural mechanism it's never been conceived of it's own due process standard and we believe that i mean obviously the fifth amendment was ratified after seventy nine they need to be read read analysis if you look at we mean it's clear the what they care about is the adequacy of the hearings in the taney treaty that runs throughout the opinion what they're talking about there is whether evidence was allowed to be presented or any sort of bill you cross examine things of that nature those are core due process concerns we're not saying that aliens who have let's say taken a step entry across the lines or don't have to process rights in the sense that obviously they have substantive due process rights but we are saying is there a level of procedure that is according to them has always been whatever it applies and i think this court's precedent explained this when there's been now the channeling are limiting but in elimination and there has not been an elimination this case there has been elimination at all that's why no court has ever found that to be the case and there isn't a case on point where you say this case you're talking generally about the expert that removal proceedings though in this context just in the limited go to your position that then your position that the limited review is only a well you know factual issue the knot of legal issues well i think the that is not necessarily correct because whether someone is an alien for if you look at st cyr and you look at the if you look at since here it's very clear that the supreme court is only talking about purely legal questions and some to the extent that they rely upon that we're dealing with mixed questions it's really complex you know what i can understand is the government's line of analysis in terms of due process versus the suspension was so maybe you know like walk me through where you think they intersect or as you said need to be read in harmony we have a statute and we have a provision in your view how does the court walk through his hearing he want he doesn't think those hearings were adequate or appropriate so he's making a challenge well that that's clear he disagrees with the outcome of the hearing when he disagrees with that because in his view it wasn't a real  was you know he's basically saying that these are shell type proceedings and it's not that and that he can't it's not the factual issues he wants to challenge it's the implementation those in making the final we're getting into basically a review of his case which is basically that the government is telling us we can't do that it's that is what it is absolutely so i'm asking you i'll go back yeah under the statutes we can so let me go back and ask you we now have this case in front of us he wants to be able to challenge that outcome of this hearing beyond the three points in the statute so what is the process that was given is that the analysis is fact based analysis and that supreme court case law is replete with cases saying you know if congress wants there to be a summary executive proceeding wearing facts would do a complete end run around the point of the statute this is the i am maybe we're talking past each other but i i still have no answer from the government i understand what his problem is because he got a negative determination you're saying well in your view on anything to do with the fact that he was arriving at the border but he didn't actually go through a formal port of entry he ended up on the other side of the border does that matter for example in the suspension an an alien with a lawful permanent resident husband and u s and child in the united states that you know you don't think them i mean does it matter for due process in terms of where and when you are and what kind of status you're in yes it's a console so i'm now totally confused by the government's argument because i thought a large part of it was that it didn't matter it he's not like sun sea or people which you know like ok lawful permanent resident he's  he's an undocumented individual who happens to be what four miles inside the u s border he was twenty five yards twenty five yards ok twenty five yards so you're saying that doesn't really matter it doesn't affect for example his suspension was right and what might be an appropriate for him well so anything to do it with respect to the first point on due process it doesn't have anything to do with that that is very clear from with respect to this case to say that twenty five yards is not going to arriving and we think the phys the functional very functional approach that was taken in by many i mean the whole point of affording outside of this country and that case was based on as your honor pointed out before the they were being held for six years of the time under us control that is completely different from  just for the purposes of pavia sake that they must have that if you look at that here it's been completely complied with the purposes of those factors you discussed in too many because they have no ties he has no ties to this whatever it was this they basically are assimilated to that state that is actually correct and i mean it was i was on ellis island for years and his whole claim like the detainees in guantanamo was you cannot hold me indefinitely that was  can't torture you for example would have come to do that but the point with respect to what process is due is ultimately the question of this case when you have the review of your credible fear claim do you think that comes at the conclusion offense with respect to do we have control over the person if we have control of the person they have to process rights in the sense that we cannot torture them with their you cannot commit substantive due process violations over them with respect to the procedures that are allowed to be thing that's the only thing we know there are many ways that the substantive due process case law could be violated i think by opposing counsel could list those for you better than i can but the point is that that is a distinct analysis from the procedure that is congress has been very clear for over one hundred years that the procedure that is due is what congress provides in this course case clause is fully in accord with that with respect to the procedural analysis so if the statute sa that's what you said i mean we have detained u s citizens that the border under this statute and they need to show of course i'm not an alien i mean u s citizen so i'm just saying if if you're only asking you know are you  let me just say two things quickly about that this court has repeatedly held that it doesn't matter how many feet over you look at the rate of aka case recently all the cases cited a page thirty four thirty five are opening brief the cases in the immigration scholars brief the court has drawn a bright line this would be an enormous holding if you were to say it's the amount of distance you are in the country and what test would you apply as the immigration scholar said one day three days twenty five yards but it can't do process in any event does not link up with hay vs all of the cases the supreme court cited and sing see or all of these cases say you have to have review of statutory regular ten regulatory claims that's the principal reason why the suspension clause was inactive and going to the forum question the government suggested well as long as you have some review even if it's just review of mistaken identity claims that's sufficient if that were sufficient sincere would have never had a suspension clause probably there was an enormous review available under the that was at issue in st cyr you could challenge the portability challenge a bunch of things the same in ramadan ramadan was about could you have a review of mix questions of law which it said the constitution requires not just pure questions so it can't be that you just have some review on the merits we are raising legal claims about whether the regulations and statutes were violated because the asylum officer did not take into account country conditions he did not a list that basic information when that which is the were quired by regulation to ask follow up questions he didn't do that morality secured oh was it looks totally different case not about haiti as it was about reinstatement the one final thing i just i just want to sort of leave you with is these are the same arguments that we have heard what i mean this court knows because it has a lot of institutional memory on these issues in ninety six the same arguments were made well look you know these are criminal aliens they're challenging only that ability to get discretionary relief there's no way there's hey vs the supreme court was all about the history this court even before seeing sera gone to prison no judge thomas went through that whole history of the finality or floors incomes and they say there's no way he'd be a supplies this supreme court we've won some case in the supreme court we've lost some on immigration and plenary power the one thing the supreme court has never allowed is hey be is to be sacrifice and just let me end with your questions as mcewen because i know the bill many analysis a little tricky how to map it on here that threshold inquiry about extraterritoriality doesn't map on here because it was a silly generous thing of them being outside if there's a there was no way to spend clause can't apply to someone on the u s does your sovereignty the only question is is the scope of review as your honour's have pointed out sufficient and it can't and that has been off throughout the finality or cases so many of those cases are port aventura cases justice holmes in g joe arriving alien but still reviewing the statutory claim thank your honour's thank you thank you both for argument and briefing the case just argued is submitted and were adjourned for the morning