for about oh yeah no but i meant you're not mr leslie is he is here in jail yes mr wesson is in jail he's been in jail now almost four years and this case is about whether he should get a bond hearing the district court below aired in numerous ways but the two principal ways i want to focus on are the first it disregarded the two years that he was detained pending this court's review of this case and second it treated as  eleven months of detention as insufficient eleven months of detention without a bond hearing as insufficient to raise serious constitutional concerns this court should reverse on both grounds first the detainees decision to yet what what is the government supposed to do with somebody under those circumstances two issues your honor first yes you're absolutely right the government has the authority to detain and this is a situation where they're detaining pending a the government has the authority to detain during that time the issue here is not whether the government can detain whether it can detain without a bond hearing that's the only issue here the government can detain mr leslie if they give him a bond hearing and but the the judge determines yes he's a danger yes he's a flight risk he's going to stay in detention a congress congress has directed that somebody with the conviction that mr leslie had must be detained during removal proceedings yes but but this circuit india recognized that it did not authorize detention for has lost you know mandatory detention without a bond hearing for ever it only authorized it for a reasonable period of time and the court came down after judge convoy issued his decision yes that's true your honor so would an appropriate result here to be remanded to judge kind of boy to reconsider in light of the it could be your honor except that mr leslie's already been detained for nearly four years and to put him through additional delay at this point would be unfair and also is not needed because the issues are all clear before this court addition there is one issue that didn't deal with that is where we're just such a convoy got confused just did not deal with the case or an individual was was challenging removal before the court of appeal it only dealt with the case where mr de up with intelligent removal before the immigration judge and the board of immigration i don't know the reason why he remains in detention is because he's challenging the removal i mean if he if he know he has served his sentence for his convictions i know but but and then following serving your sentence you're supposed to get i mean the usual process is a person gets removed he doesn't have a removal proceedings and bottom line they have a right we the the statute gives them a right the constitution gives the right this it injects rover's question is does this fella really have a leg to stand on in terms of challenging the basis for his removal i mean there's a with respect to the well recruiting instead but is there any substantive ground any possibility that this guy could avoid removal could avoid him there's a possibility i mean we hear mr leslie's without counsel and more meek in this case i don't know whether he has those claims he doesn't have an attorney the issue here is only whether he gets a bond hearing whether he can be locked up for four years without a bond hearing and those are issues that an immigration judge can determine at a bond hearing if an immigration judge says hey mr leslie you're going to detention without a bond hearing anyone who subjected prolonged detention is going to be in the situation you're talking about judge slowed or they're challenging their removal so either d f c holding applies to no one because they're all challenging removal or the fact that somebody twenty minutes so it doesn't take long to get a bond hearing the problem is as as as you noted that congress decided that certain groups of people shouldn't get on hearings and supreme court in the more upheld that but it held upheld that for a brief period of ohio and it said that in most cases that was between forty five days and five months so this court india considered that issue and went along with the sort of the the sort of direction that most of the courts are going t there's three circuits that have held this that the mandatory detention statute doesn't authorize doesn't authorize mandatory detention for as long as it takes to conclude removal proceedings it only authorizes detention for a reasonable period of time so the question al no all we're talking about is whether he gets a bond hearing to determine whether he needs to continue to be locked up and he's been locked up now as i said for nearly the logical implication of your argument be that every instance where a court of appeals grants a stay of removal of bond hearing must be conducted because one of the arguments you make is that the district court not only had to consider how wrong he has already been incarcerated but what is the future look like in terms of how much longer will be incarcerated and you given the statistics from the administrative office of the u s courts in terms of how long it takes us courts of appeals to resolve these matters is that really what you're asking for that's one thing that we're asking for your honor and actually that's the put that's the ninth circuit has taken that position that individuals who get a stay of removal remember we're talking about people to whom this court has decided that they've satisfied the standard for a stay once it's determined that they satisfy the standard for a stay because the process of review is going to take at least a year they should be given a bond hearing again we're not saying they should be released but simply the government cannot continue to lock them up without a bond hearing you know i'd like to hear from the government and let you save your time for after i guess this december why they aren't giving a bond hearing let's get right to it you know why are you not giving him a bond hearing your rights all they want your honor if we look at the case in three parts first the mandatory detention statute doesn't  for the government to give mr lively a bond hearing well it says for a reasonable amount of time but four years is more than a really small amount of your honor mr leslie actually has had one on determination in two thousand and nine during his poker reduce and during his what review i apologize your honor during his post order custody facts not myself because i wasn't there or did he did have a post with a custody review and they said you're not going to be released because your detention is mandatory no your honor during the tension pursuant to eight u s c twelve forty one is our keep him in mandatory detention ambiguous ok if it's ambiguous why don't you just do it so that we can get this settled your honor there is sufficient constitutional protections the agency has percent to eight c f r two for one point thirteen provide those mandatorily detain with a review where the attorney general can if the situation warrants grant bond to those who are mandatorily who are mandatorily detained ok but hearing because your honor under the mandatory detention statute congress has specifically stated that those detained under that statute are not  the supreme court has said for a reasonable period of time right yes your honor i think it is a reasonable period of time for years your honor we have to break down the different types of the tension and mr l before i believe he may be in the same detention facility but i'm not sure you your honor so two and two makes for no matter what section it's under he's still in in detention  i don't understand why you just can't cut through this your honor he was granted bond by d h us in the amount of twenty thousand dollars in on a live in sixteenth two thousand and nine so would he did have at least one that's what i'm here we think you will yes your honor it appears in the district court records and that's one exhibit g and it also appears and m him are you now telling us that tomorrow he can ask for this bond hearing no he your honor because of the statute that he is currently detained just forgive me are you informing us that this is this appearance before the third circuit is the nature of a motion for reconsideration of the twenty thousand dollar bond your honor he was in pre war move all ordered detention initially for the first time from march twentieth two thousand and eight until the vi issued a final order removal on july eleventh two thousand and eight mr leslie appealed to this or am requested a stay of during that period that mr leslie had removal he was being and during that time the department of homeland security did give him a bond hearing it was in a minute showed a bond hearing by th us and they did offer him on right in the amount reviewed his custody what is called a post post order custody review as required by the regulation it's eight c a far two for one point the team so they were complying with regulations and this honorable court should give them deference on how they're so he had a he had a hearing he was told he could be released if he could post twenty thousand dollars of bond i'm looking now at his  consideration request in december of two thousand and nine and they denied reconsideration of the amount of the bond but then when i quote remained it no longer became eligible for consideration for release because now you treat them as subject to mandatory detention under twelve twenty six c that is correct but right now i gathered something what happened on february third which is this what was happening yes your honor and i will file a status report with the four and provide for with that order and all of the subsequent immigration removal proceeding document eleven this mr leslie's appeal is regarding the district court's decision with the facts it had as of may two thousand and eleven so these are all subsequent and the district court could not have then it becomes a final order of removal and then he goes on the twelve thirty one e yes your honor the pension yes your honor and that's why it's very important to look at what the district court had before those facts and also that the district or consistent with the op and more versus him looked at all the facts of mr leslie's detention or reasonable man and she did detention which did not the statute ambiguous whether or not he is has to be mandatory the same during that period of time oh that's interesting so should we can i'm we in the position now to decide what the ambiguous sachin your honor means your honor be careful the government requests that you take iran deference because the agency has procedures in effect in well that's no longer in effect no longer in effect your honor because his removal is now under a different review all of the immigration proceedings when well why should we then you're on why should we why should we remain under to the district group so we can look at  consideration this court's decision and have an opportunity to decide whether or not mr leslie the tension is now reasonable you know well now you're telling us that  kid this appeal based on the district board's decision however worst case scenario if this court decides that the district court needs to conduct for the inquiry then yes it would be appropriate for the district court for this court to remain and the third part of your question your honor i forgot the district court to conduct a bond hearing the district court being your honor is not the appropriate place to conduct bond here if the district or its over the charmin that mr leslie should have a bond hearing the district court can remain and it to the immigration judge and the immigration judge will under what's that shoot can the district court determine that he should have a bond hearing i gather from what you said before that that was over that was finished your answer is there now some call under which the district court can determine that there should be a bond hearing your honor i apologize if there are some confusing confusion the i did not it's not you it's remain and through the immigration judge if the image if this record had this case again before it so the statute twelve thirty one does not apply to the district there was a question this whether you got notice of some of them we didn't get notice from the government but we've been in touch with mr leslie so we knew that he had lost and we know that he's appealed to the b i a and the briefing has not you know begun yet  so we're still going to wait for a briefing to the b i and see what they do i'd like to make four points just quickly and then i'm glad to respond to any of your other questions first of all he did not receive a bond hearing he received a custody review this is a file review by the agency it's not a bond hearing before an impartial jus to cater if the court wants us to brief that we're glad to do that notably the government did not bring that up in any of its briefs in its initial brief sort of its response to our briefs second of all is recognized there is a very important point because yes they did she tell ya that he had a bond hearing and now you are telling us you didn't have a bond hearing have a custody review right i think that you know  look i assume that you could call a custody review a hearing of some sort but not a bond hearing before an impartial adjudicator and it's not hearing it wasn't even in person it was just that they reviewed the record and make their determination in person and he asked for a further review and they said no they said bring this up next year a year from now when we review it again bring it up again and then that the next point this was two and a half years ago this was two and a half years ago that he had this custody review he's been i mean it's like complete disregard that we're talking about a man who is locked up sitting in prison he couldn't pay twenty thousand dollars bond then so for two and a half years he's sitting in detention and for the last nineteen months when he then came back and did what they said and asked for another custody review they said no you can't get one now because you're subject to mandatory detention and the government's position that well he's subject to mandatory detention so that's the end of it completely ignores this court's decision india up but says no it's mandatory detention is not for as long as it takes is for a reasonable period of time so i think that first of all i want to make one other point the government it's interesting the government now sees fi court granted mr let loose a petition for review in july of two thousand and ten it took the go it took the government between the b s a and the agency seven months to schedule him for a bond hearing now they're expediting he's been in detention nineteen months since this court another point in terms of why remained is not necessary the court here can consider all of this extra time the court india up the hevia had been denied in two to october two thousand and nine the court didn't decide the word we may find that there were reasons why but whatever whatever i mean it's now it's been ten months i mean it takes time to brief an appeal it's been ten months since the haiti escort decided there's no reason that this court my point was not how long it took my point was just that there's no nothing that prevents this court from considering in his decision those ten months however i also want to make the point that even the district court's decision was wrong even on the facts as they were then and that's why i made the point in my opening that the government presumed that the amount of time he was in detention at that point just in mandatory detention because they disregarded all the other detention they chopped it up and said we don't have to care about that but just taking the time it was a mandatory detention they calculated us eleven months and the district court judge said that was insufficient to trigger constitutional concerns that is simply wrong this court indiana held that detention as it exceeds the average did more which are forty five days to five months then the case for you know constitutional concerns becomes higher so we're talking about to say that detention which is twice that amount twice the five months  triggers no constitutional concerns you know it's just it's just at odds can't be reconciled with the up there's no reason why an individual has to wait till they're in detention for two years or three years and especially this goes to your question the question about the reasonableness of the tension has to look not only at how long have you been detained but how much longer could you be detained at that point it was on clear but he had just only appealed to the v i i so it was going to be a few months at least it turned out obviously to be longer it's turned out now to be i think you know nine months since then or ten months but so you haven't been given a reason why he's being detained i position is simply essentially they seem to be arguing against you know they seem to be arguing as if this court's decision diac didn't happen because their position is congress said this is mandatory detention and so he has to be locked up without a hearing their second position is well it's true said it's only for a reasonable period of time but this is reasonable and this is reasonable they say because you have to cut up the statutes and his two years of detention during a stay you can't count that you only can count this how they come up with two months of suggested that the court dopped the presumptively reasonable six month rule after which detention is unreasonable now the court rejected an across the board six month rule but as i said it specifically held that as detention exceeded those periods it became more constitutionally suspect so it said we're not going to decide this across the board that everybody at six months gets a bond hearing but it has strong language in there recognising that those guideposts and that when detention exceeds that amount it's more constitutionally suspect but again we're talking about the tension with out a bond hearing we're not talking about the tension somebody could be locked up for two years three years it may not be constitutionally suspect but to lock them up without a bond hearing is a different matter and supreme court upheld that but it appellate for a brief period of time this court indeed did the same thing it said yes mandatory detentions you know it's ok for the brief period of time but neither neither the statute nor due process authorizes mandatory detention you know for for an unreasonable period of time and so the issue here is at what point this attention become unreasonable and  take the last point we are arguing judge of a nasty also that that this case is a good illustration for why when somebody is granted a stay of removal by this court they should get a bond hearing because in that case it's inevitable and and again i want to make clear it's not because the government has engaged in an unreasonable delay you know detention can be unreasonably prolonged even when the government doesn't engage in unreasonable delay and made that clear as well said reasonable actions can result in an unreasonable unreasonably prolonged detention which requires a bond hearing and that's the issue here regardless of whether you know the government acted reasonably at all these different