requires as this court has held on a number of occasions that when an alien is detained for an reasonable amount of time by immigration authorities during the removal process he is entitled to a bond hearing at which the government bears the burden of proof by clear and convincing evidence that the alien poses either a risk of flight or a danger to the community based on evidence of the enemy into current circumstances and conduct in twelve twenty six he says we don't have jurisdiction to review the immigration judge his way of whether he's a flight risk or danger to society right i do not believe that's what it says you're on the what twenty to twelve twenty six he states is that the court is determination it's a little bit it's not standardless but it is sort of a feel cast right you consider what the person the qs done of you consider what their criminal history is consider whether they are likely to flee or be a danger to society those are very discretionary judgments made by the fact in mind are they not there are discretionary elements to all of the fact finding elements you just discussed your honor but there is a critical distinction between what you are describing what occurred in this case and challenge in this case the challenge in this case is not to be discretionary judgment of immigration officials regarding the flight risk or the danger to the community of nelson can taro's rather the question here is whether the immigration authorities had constitutional authority to continue to detain mr can terrorist based on the standards announced by this court that is a constitutional question and a question about limit it's constitutional depending upon how you frame it what is what did the i j  here that was unconstitutional he did not apply the standards as you know now by this court in terms of when continued detention is permissible and again the standard that in its current current dangerousness and current risk of flight director and he said i stole a loaf of bread for heaven's sakes that he not and and that was a ruling he made isn't that a discretionary ruling it is not your honor based on the standards that have been announced by this court and i would link this back to what exactly occurred in cases such as did up in ch in those cases what the question presented was and what was not barred from this court review what is the standard by which immigration officials must judge whether continued detention is appropriate and then whether did the hearings they conducted satisfy those constitutional standards in both of those cases they recognize this court recognize the burden is upon the government to show i asked by tom burton in and guerrero days later clarified by clear and convincing evidence that the alien poses a risk of flight or of current recent in this case was that based upon sol the only evidence presented by the government was the judgment of conviction from two thousand and thirteen three years prior concerning conduct in two thousand and ten six years prior when that when mr compare it with the juvenile and the notice of removal which said that mr contest with the portable as of march two thousand and fourteen those were the only thing exhausted all of his possibility of staying in the country correct you know your honor there is in fact a pending appeal before this court that completed what's the status of the briefing has been considered on the motion for a stay as far as i'm aware i guess i guess the point i'm getting at is if he doesn't want to be in custody there are two things this is going to take two paths right he's either going to prevail in this petition for review and then get status in the country or he's going to lose that he's going to be under final order moves right and he'll be moved out of the country well either he will succeed in his appeal and perhaps not be subject to the order of or move at all years under section two twelve twenty six seat mandatory detention mandatory detention but of course this court has said that any detention over the course of the year might be going as he could he could he could accelerate he could solve his problem and get things moving if he tried to expedite his pending appeal to this court there is not a as far as i know there's i'm going where's the expedition i mean if if i'm his lawyer i the first thing i do is file a motion i say look my guy's incarcerated i'd like the third circuit to hear this case posthaste right  hasn't happened i don't think that is a necessary prerequisite to showing that this is it and this court seven charges that there is no necessity for the alien to preclude or to try to move his case in order to limit the grant of his relief he has a full opportunity he's entitle to a full opportunity present his case without worry and without the tension being imposed upon him simply because he is prepared pursuing a bailable the remedies and he's done so expeditiously so that the lays that man caused have been in part because the government for instance the last third circuit appeal that he brought the government asked for full remained for further consideration and to in terms of the new third circuit decision so that was something he could not control it went back to the immigration authorities and now we have another two your detention period in which he is remaining in prison and in a state facility constitutional right to being violated and they are in getting back to the question that was asked earlier by judge trent bell then this is detention of an alien and different from some other detention i mean there's no constitutional right to release on bond and to thirty six eight gives the attorney general the right to grant it and the exercise of discretion and it's also been cited that the burden is on the alien to show to the satisfaction the immigration judge that he or she merits released on bond and the number of factors lot that they can consider well i think there's a little bit to unpack with that question your honor and i'll take it if i can and order one is whether there is a constitutional right to detention hearing and to release and there is in fact and that is what this court held in the op i mean you're hearing yes i'm sorry differences sure what what was held in the up and in charges was in fact two holdings one constitutional one statutory the constitutional holding was due process perfect it's immigration authorities from continue the detention of an alien unless the government satisfies its burden of proof then the court went on to say we do not want to interpret the statute that is twelve twenty six c is allowing for detention in unconstitutional circumstances so we are going to engraft the constitutional requirement of a hearing provision there and what jennings said was no clear language of twelve twenty six does not permit it as a statutory matter of interpretation and then jennings said at the end of the opinion if we recognise that there is still constitutional issues so detention may be authorised by twelve twenty six c and the man did it but it may still be unconstitutional and that is a separate question and that is the separate question that is still present in the op and chop it and in fact can grow where a at footnote eleven this court stated quite explicitly if there are two separate holdings one statutory one constitutional jenning's challenge and overrule the statutory aspect but did not at least so far as the court was willing to address that point did not so far as the court was concerned overrule the constitutional holding and and that's what we're talking about in this particular case the constitutional requirement and that is why for one reason the review of this case is not barred by twelve twenty six because this is a constitutional question of authority that remains within the jurisdiction of the score particularly on his find by a preponderance of the evidence that you're likely to flee or i think there's a few response but i'll give you the most direct one which is at no point in the hearing does the i j a ever use the term clear and convincing nor do agency officials nor does the district court in directing the hearing and in fact at the start of the proceeding that is the bond hearing it's an appendix one twelve if you'd like to see it the idea describes the burden of proof in this way it has the government may satisfy its burden by either evidence or facts or by quote inference argument whatever so whatever that means whatever whatever means in that circumstance you certainly didn't seem to require clear and convincing and in fact during the course of the proceeding the only as i mentioned before the only evidence that was introduced if you'd like to call it that is the judgment of conviction and the notice of that had already been used to justify mr content as an initial detention that was not independent evidence in any sense of the word it doesn't need to be independent i mean it's i mean i'm surprised you gloss over that so quickly because to suggest that somebody laboring who's already lost the two levels of the district of review who is awaiting a decision of this court so his present  is on the track to being removed from the country to suggest that it's sort of obvious that that person poses a flight risk is sort of a remarkable proposition isn't it a good bet mcateer and i do not believe it is at all your honor and that under the disability that he unless he can get a reversal he's about to be removed from the country so when his lawyer says to him when he says well what what happens next and the lawyer says well if the court of appeals denies your petition for review you're being sent back to your country of origin does that not give him every incentive to flee it provides a potential motive to flee but that would be applicable to every alien in this circumstance if there was always a circumstance under which the i what his actual circumstances and that's why in cases like the op there was actually an initial hearing and charges discussed at this at the initial hearing when they have missionary to the tank the government is required under what's called the joseph hearing to submit the judgment of conviction and the notice of removal and shot as this court made clear that in that circumstance right at the point of detention sure even without individual proof of the individual circumstances relating to this particular alley based on the initial tension you can presume the notice of removal risk of flight you can presume from the judgment of conviction danger to community but what chavez says that after six months a year some of the liberty interest of the alien which have become so much more pronounced become so much more active you cannot have that presumption and more you cannot rely on that alone you have to prove some extenuating circumstances additional evidence of current circumstances and in charge as the court actually recognise that ayat after a year and here after five hundred under your theory said if there's an initial bond let's say the crime of conviction is it is murder ok first degree murder under under your fieri if if the initial bond hearing a determination is made that the person is a danger to the community because of the murder conviction three years later at the subsequent bond hearing it's insufficient for the adjudicator to just make reference to the murder conviction again you're saying that you have to consider whether the person has worked toward rehabilitation during the three year period that's your argument i think well there's two point one the seriousness of the fence and the nature of the conduct itself can certainly be considered as relevant in this inquiry and what you end and to take your precise example on that and i'd like to move on to the actual case we're talking about but to take your example of course murder is a very different crime it's a very violent crime but yes i do think it's actually required the court consider what if there's any rehabilitative efforts that have been made over the course of those years and in fact the government would have access to that so what are your theory that the hearing has to include findings of fact by the adjudicator that ok i know you committed this murder but in the last three years you've gotten a ged and you have no disciplinary violations while incarcerated and and therefore i need to let you go i need to find you're not a ranger to the community it's it but the hypothetically look i'm not sure if the hype of it like i said would have to depend but i do think i'm trying to give you every going through the doubt that for three years the person is a model prisoner they just done everything right under your  theory you can't refer back to that first degree murder conviction and say you know what i find that your danger to the community no i meant to i meant to absolutely agree with you that you can still consider the nature of the underlying criminal offense and what it is particular conduct that led to it but what happened and to bring it back to that here then then here we've got a v car offense and we've got a guy that was a member of the emmis thirteen gang and as i read your brief your response is well he's no longer a gang member he's renounced the gang so you know he's a different guy in my opinion you're saying that that the educator can't refer back to the severity of the v corps fence and say look i just don't think someone with a v corps conviction is someone that i can allow liberty now that the argument is that is is that different than that although i appreciate your point your honor now what the judge cannot do what the judge did here is simply rely on the conviction itself and look at the crime and say that's an inherently dangerous crime and therefore we're going forward for whatever reason we're going to presume that he is a danger to the community no matter what we have any inquiry at this stage in the particulars of the conduct and the particular of mr can terrorists history which is you know an extraordinary rehabilitat entirely and then he has gone through significant rehabilitative efforts and the point is not so much that there is not a weighing process they can be done it is that in this case it is clear from the record that no one process was done that the court didn't or they didn't apply the appropriate standard of the government the district court's decision in this case should be affirmed to because the court correctly concluded that the government did comply with judge brand's order when they provided mr king that goes with a bond hearing in which the government bore and met the burden of proving that which is actually the standard that was that bit that needed to be applied in two thousand and sixteen not happen when the hitter didn't exist what is the clear and convincing evidence that was brought forth by the government so they didn't have to bring clear and convincing evidence that standard did not come to exist in this circuit until getting to get to the first time this circuit speaks about a different a more specific standard of it and the burden of am very worried about the seriousness of your conviction i didn't say that he's where he said every viewing authority might disagree with me but i would find that as a matter of law you are a danger to the community correct in spite of how you presented yourself and where you are you are a different young man i think you can really work but that doesn't take away the fact of your criminal conduct for which you have been sentenced and convicted up so he was relying on the criminal conduct now we have held in judge wise opinion n g o that presenting danger to the community at one point by committing crime does not place them forever beyond redemption and judge wise goes on to say the due process even to excludable aliens requires an opportunity for an evaluation of the individuals current threat to the community and his flight risk is risk of flight what evaluation was made by the  of some record evidence that had been just sitting there watching what's what was the review of his current situation the basically said the fact of your criminal conduct for which you have been did not present anything additional to wow how did the judge evaluate this how do you evaluate this current situation he applied he made an assessment as to the dangerousness and the seriousness in the compelling only only only correct your hon brief on the retract about location of that clear and convincing standard and at the end of the day the court the government understands that it needs to be remanded to be made to the district courts that they consider in first instance whether or not this about this isn't it possible that he's under twelve thirty one he six and not twelve twenty six see i mean he was under reinstated order  to instill removal proceedings against an undocumented or an individual like him got had what had beagles status but committed a crime therefore maybe making him subject to remove or they can choose to to go by either to portie traditional to forty proceedings or they can do expedited proceedings in this case they chose to thirty b which is the admin removal actually you could have chosen the expedited goes an aggravated felony but you just chose the opposite no no that's exactly the pap that was chosen to thirty only thing due process required with at the immigration judge give him a hearing in which the fact finding was based on the record before him it was disclosed to mr king that it was contagious be allowed to advocate of of under his own behalf and that the immigration to a judge make an individualized determination that an ounce of his decisions in terms sufficient to enable the district court and now this court to determine if the immigration heard thought and actually considered the evidence before him not just reacted in a grudging perfunctory manner that happened in no and in this case that's exactly what happened now going for it but who draws the status of the petition for review because regardless of whether we grant his abuse or not it would seem that expedition would be beneficial to everybody the government we've just got back from a lapse in appropriations so everybody's kind of trying still figuring out what to do with docket but it but the government is still considering because of this because he's been in detention for five years and because we have the hague b s in this case pending the government is still considering whether or not to request an i believe it is eight forty one that is that the government no longer h jory i believe it is it is for it definitely for this fact a tory claim and it i think it also the government thinks it believes truly believes it also applies for the constitutional claims but in the two two in the could read the page and i don't see it the due process constituted the this court is limited to assess whether or not the fact finding was based on a record that was supplied to keep it was that he whether or not the id gave him an opportunity to advocate on his behalf and whether or not the decision is has enough meat in it to determine that all those steps took place and i think that not only to a decision but if you go to the transcript you can see if you can see that that is precisely what happened know you are a changed man and you did a great job here and you know your current your current situation is you're terrific guy but but you have this this crime and you wonder whether given judge weis and our statement that you know the fact that you had a conviction doesn't mean that that's the basis on which your current condition should be judged of course your honor but even if we were to say there wasn't sufficient  characters and nothing that ty we have no bank at nothing about tying him to bank accounts to properties to buy this see the problem is now we're entering the slippery slope of what real way to be evidence of what is the evidence should be there that what evidence not having to get and while yes it might be troubling that you know he's been in detention so long that he can have a bank account or he can have a job but there's no real evidence other than self serving statements about what he's what he that is exactly what congress addressed in top twenty six in so we go back to the original due process yes while this court file this court mine has might have jurisdiction maintain serious diction to his detention could he have been litigating his claims for withholding of removal and protection under the convention against torture from el salvador yes and how would that have worked how  would you accomplish that well he has counsel also it would be through his counsel that he would be the counsel would have been able to do what he would have been able to answer would have exceeded to the remove voluntary departure and then automatic stay that the third circuit has has issued so i see so if he had not sought a stay he would have been removed in due course and his case would be continuing while he was in el salvador correct so his his continued incarceration at this point is in some part attributed to his seeking the stays of removal while his case was continu in part but not exclusively his detention is are we salt interests the balance of interests changing because he is oh i know well that's twelve twenty six see it's mandatory detention but my point i'm trying to get a handle practicalities of the situation as to whether his detention is strictly will be strictly at the mercy of twelve twenty six c in mandatory detention or whether he had the ability at some point in time to he remains to be back in the cell with or and have his case pending while he was at liberty in el salvador rather than being incarcerated here he remains in custody because he has filed a under the regulations my might accept him we start with the standard of review i guess but absolutely i guess we've got a concession that if clear and convincing evidence applies you're going to be entitled to  do you think you have a persuasive argument right now on the retroactivity question or should that be brief or is that a non issue i think it's a non issue i'm happy to brief it of course your honor and i think it's a non issue because the standard was the standard at the time of the hearing in this case and even though this court did not clarify precisely what it was it was clear and convincing at that time and that's what the parties argued at the time the mere fact that the immigration authority what may have had a different argument or different position doesn't mean that the constitutional standard changed  at that time and this is the position of immigration i would it wasn't clear though no i don't think it would sounds like we need briefing on there were perhaps but there's another reason why it should apply in this case and why this just establishes at the very least the question here is not simply whether the ten tension order detention hearing was sufficient it is whether as of now mr can taro's is being held in custody in compliance with the due process clause in custody now he has not been afforded and now this court cases make clear a detention hearing in accordance with the due process cl least at the time of go where or when that was issued in two thousand and eighteen at that point it is now clear clear and convincing evidence is the only way that one can justify continuing to taint contention of an alien therefore after that issue if after that opinion issued it is if it does not meet that standard it cannot continue to detain anyone it has not met that standard yet so at the very least as of the times gras they will hear why they want to so everybody who had a bond hearing previously where somebody wants to say it's clear and convincing automatically they're entitled to a new bond there has to be a determination a t v or whatever about whether it's of constitutional proportional isn't it does not your honor because it's a continuing inquiry if the bond hearing previously was a allow for continued detention and then three years later the standard of review the burden of review was heightened then that person can file a new hip is based on that particular alligator you would have to file a new hate us no your honor because in this case we actually  filed in this particular case argued that clear and convincing should have been applied so we've already made that argument already been briefed in this case as to why should be applied and this is not a retroactive application of that this is simply the normal course of proceedings when somebody braces an argument such as such as in the ninth circuit decision in her hand which is cited in the opposition group in which for the first time the court held that yes clear and convincing standard applies and even though that was a new ruling in that particular instance it didn't say ok well now he was already detained previously all right so we're not going to order a new hearing no it said ok we've changed the standard we raise the burden we've recognized the bird and therefore at least we know now that he has had leased and title going forward to a bond hearing and that's what that concession just met right now as of today he is entitled to a bond no no it said two but i making two separate arguments one the hearing was improper and the end in the hideous petition it argued that there was really no burden imposed upon the government much less clear and convincing thing convincing should have been imposed that was the argument presented so it is fully raised in this case case prior to crawford see change in confrontation law requires a new trial how did all get on in my understanding is that might be true if those previously convicted defendants who didn't have that degree of confrontation we're entitled to retroactive treatment right isn't that the the what is what but this is no this is a separate question are this it brought up in this particular case the challenge was made and i cite your cite your you honour's to two decisions of the ninth circuit one of which is cited in the opposition group one of which is inside the by this court on a number of kitchen sink versus holder hernandez versus holder attorney general eric holder which but in both of those cases what the allegation what the hippies petition allege was that the detention hearing held before the i g in those cases did not involve application of the correct standard of proof all right but if you give it you could make that hey b s argument on behalf of every person convicted prior to crawford being decided no no and then you could say look my client didn't have a full blown confrontation like crawford requires in the answer of the federal courts as well the trial judge made no error because crawford hadn't been decided at the time that defendant was tried and there are different considerations in the two and the differences between the hay vs context in the criminal procedure context and he views context and what we're talking about now here we are not talking about whether the trial was correct or whether it was problem was correctly decided not is the crawford the hideous petition that right but if you're challenging his detention today then you need to file behaviors petition the challenge is his detention we did it no we have exactly that petition out there there are not is the one that is under review by this court because we filed that petition in february of two thousand seventeen challenging his continued detention going forward saying that not only was mr comparison title to a hearing but he was entitled to a hearing based on clear and convincing evidence that this court had not yet made clear that that was the standard was merely an a matter for argument your view under the appropriate legal standard rather than just decide his case i think that's appropriate your honor i think in fact we should just decide his case petition for review right and oh no no no no i do not think that you don't want us to decide i because you know i'd love for you i mean i'm happy to do that i'm to i'm not a big words if you don't and we should we should do that post haste right and bring closure to this matter one way or the other i would of course be happy to father but but to get put back to your point as to whether this can be expedited certainly it can be expedited i'm not in control of that but it can be but to get to touch the richesse point he cannot simply go out he cannot simply free himself from removed from the released from detention and go back to the country not only because that would effectuate the notice of removal but is subject to challenge at this point in time but also because of concerns over torture and i think that it explains why these proceedings have gone on for so long without him having any ability to really control them and again it just shows that now for five years he has been detained without the constitutionally adequate bail hearing that as of this point even the government conceded he has not received so even as he just it just seems like you're arguing that would be he would much prefer to be released on bail than to have this court decided petition not at all your honor that that's what it he would be that he would know what he is entitle to and what he would prefer is yes to be released from detention while this court decides and if it does it expeditiously all the better but what he does not want to do and what he is constitutionally should not be able to do what government officials should not be allowed to do is to continue to detain him for more rehabilitative efforts and for somebody who didn't receive the hearing to which he was entitle by discourse to certain he is being held right now in violation of his constitutional rights that has now been conceded by the government i hate his position should issue immediately