statutory in nature the government will now address each of those grounds in turn difference first starting with the plain text of the statute congress specifically included the phrase whether or not and it doesn't get in court right and as the government demonstrated in its brief it is implausible specifically included that phrase and then simultaneously in the same statutory provision intended to make it functionally impossible for the apartment of homeland security to exercise the statutory authority nd the something i'm sorry judge it sounds like we've got mute with the counsel i wonder if counsel can hear me i can hear you ok so we lost you for about ten seconds if you could go back and repeat some of what you've please certainly your honor so just going back to the fourteen of you and so that this report specifically in them zombie dust versus davis a supreme court case concerning constitutional rights and then from that decision to so you're on whose cases might provide some helpful background but ultimately the government's view is matter and the c v is the most relevant case because it interprets the precise steps you have issue and importantly addresses the very issue that the or promise the preliminary injunction on which is whether any alien is still all right i think when after he or she is out rendered near the border or just inside the border and that decision commands chevron differences this court has both statutory provisions including the phrase whether or not it's a good report rifle and therefore the b r t specifically concluded that illumines apprehended near the border or just inside the border after illegally crossing are arriving on land for purposes of section all twenty five beats you see here on page sixty one of the a done in the district court observed that there is no dispute that the alcohol use were apprehended very soon after illegally crossing the border so the government's and what it is i understand it your argument is that well paragraph one only applies if the agency should decide to put someone into expedited proceedings ok you should mute your you should mute the audio on your computer ok following your argument correctly you seem to be saying that we should read the two as saying two home paragraphs one has been applied rather than should at least trigger the possibility of judicial review or need to follow the a honor i would just come back to what i said earlier which is the treaty obligations law the convention against torture and the refugee convention and either is pretty obligations are self executing but they're no discretion in all sorts of areas but when they then exercise that discretion to promulgated a rule which has a final effect on the person we generally look to the a p a to see if they've done it properly them tomorrow when you mute your don't disconnect on the telephone please do me your computer as much as possible so that there is no echo and we will ask you to mute video on your device and we will hear from other council attorney sieg that fraudulent asylum seekers would be put away but that the bonafide asylum seekers would be welcomed and this is a a policy including by not asking about credit fear at the moment of return to mexico that is guaranteed guaranteed to send away people who are bonafide asylum seekers it is in fact an in essential renewal program the purpose here that when their government is actually doing is giving people who are who are subject to to the b one b two argument giving them full removal proceedings for the purpose of making sure that those full romy proceedings never happen because they send them to a place where they are hunted persecuted by gangs who intend them harm program that and there's no reason to believe the government has provided no way to know that the people who are being ordered removed in absentia are the fraudulent asylum seekers as opposed to the bona fide won't and that's because they don't care so that is what makes this violation of the a p a a nd thing that makes it a violation of the e p a is that is that the there are regulations that govern this case the government is preparing to do something by memo here including the mustard document that was supplied to us in the district that for more than twenty years have been squarely and deliberately foreclosed by law and that's the forcible return to mexico people who have crossed into the united states and i want to be very clear about this because it relates both to the one t argument and the government's characterization  bona fide asylum seekers and it created a choice for other non citizens a separate provision that included the possibility of continuous return for those who are arriving by land from continuous territory and that is why undisputed aspects of the record as well as the government's own statistics that you could affirm on that basis but certainly it would be permissible to just remand in the instance that we was on everything else and let the district have you got any authority is there any precedent where a circuit court of appeals has found a injunction is not justified by the only grounds cited by the district court but an alternative grounds could justify and in fact does justify it and therefore upholds the injunction i think we've cited some in the brief your honor i'm not sure that there is a case where and i hope this isn't such a case where the court thoroughly disagrees with everything else  think that this is a really crucial issue first of all on the statute if it is it is the government's litigation position that is arriving places no temporal or geographic limitation on who is and it wasn't the in the view of the department of homeland security when it wrote in two thousand and four in the federal register on the southern land border with mexico those aliens who are apprehended who are not mexican nationals cannot be returned to mexico so due process purposes someone who has recently crossed the border is not entitled to due process rights it was undisputed in that case that the actual alien in that case was just yards from the border was not an alien could you be factual on this are you really saying that the statute only applies during that kent of the nd of time when someone's face has one foot in mexico and one foot in the united states i think of attempting to enter so that is certainly something that's available to the court but it's not the situation here and more than that your honor to the extent this court has any is struggling with this we're struggling with this and that just goes to show why it was so important that the ins did as it was commanded to do by congress and promulgate regulations struggling with this very question and it is inconceivable that they chose to define  arriving alien for the purposes of all instances of arriving except the statute issue here and it is inconceivable that they issued a new regulation to thirty five point three d for any purpose aside from narrowing its contiguous return authority to the two people at the ports of entry which is the  precisely the one that the agency itself struggled with it said it extensively consider this and precisely for the practical reasons that you are articulating your honor the agency decided that it was going to define arriving not for one purpose but for every purpose for every instance in the statute that's what the recipient stands for that's what this court's akon for lon decision stands for every instance of arriving it means at a court of entry precisely because the agency was not interested in trying to figure out who had in fact been here for twenty four hours i just want to say one thing about this issue in this case the other thing is that the question you ask your honor doesn't have to be resolved in this case because in this case the government applied the ninety six hour rule that it told us about that it in supplemental briefing and that in the question for the court is simply whether that rule is consistent with the statute and the regulations reads that out of the statute well i actually if i mean i actually think that the government knew up to thirty five point three d when it when it issued this muster document to thirty five point three d was a regulation that that was the sole exception that by saying that the that the government may parole someone for humanitarian reasons the canon of negative implication commanded that that meant it couldn't be paroled for any other reason so given that your question just got to what i'm saying here is that the that because the statute says whether or not a port of entry when the regulation says at ports of entry the only thing it could be doing is limiting the government's authority to that scenario i just we will attach the right number and the right letter i commit to that your honor is the one other thing i would say about these regulations the there is a suggestion in the government's brief that  yes judge attorney siegel you could meet your device and attorney read kamar if you could unmeet your video and continue to proceed on the telephone and forty nine of the joint appendix and footnote to the agency specifically noted that aliens apprehended a reasonably proximate to the border are arriving on land and again that explanation aligned with precisely what the concluded in matter of and second i want to briefly go back to the nd textual ground for the preliminary injunction below and just circle back to jennings and again i just want to be perfectly clear placed in expedited removal proceedings so they are not covered by section two hundred and twenty five be one but doesn't that paragraph applying to them by giving you the authority to put them into an expedited proceeding if you want to do so one paragraph one doesn't apply to me when you say yes it does so we can point you in proceedings no your honor and the reason for that is someone who lacks a valid entry documentation is not proper documentation are also applicant support mission who are not clearly and beyond a doubt entitled to be admitted so they also fit the description of aliens in section two hundred and twenty five b two a and the th circuit motions panel  that was not the basis for the preliminary injunction below and if this court were to reach that issue it would again have to reach another issue the district court did not rule on and as this court observed in ryan versus ice without the would just go back to my previous answer which again this court obviously has the power to affirm an alternative grounds but as a general prudential matter refrain from doing so particularly when the issues raised complex legal and factual issues is the practical difference here simply this that for these given individuals if we were to vacate and remain and you know a client could quickly round them up and send them to that place in mexico where these things happen to them but if we were to simply remain and for consideration of the alternative grounds they could not be rounded up in the  meantime i believe that would be correct but again i'm not aware of a scenario in which this court could conclude that this report erred in holding that the government should be enjoined based on the statutory grounds and  your client propose to propose if there is this hiatus if we were to accept your arguments on the grounds that the district court will live upon but at the same time think and send them in mexico no your honor i have not spoken with my quiet about this possibility so i don't want to make any definitive representations one way or another but i can say that i'm willing to discuss this issue with our client and get back to the court on that point if the court believes it would be helpful i think who are all twenty eight che would allow you to do that ok i understand your honor i will submit rule twenty a j a letter addressing the thank you thank you very much but that concludes argument in this case attorney ram kamar an attorney single you can disconnect from the hearing at this time