may please the court william produced on behalf of plaintiffs i'd like to reserve two minutes for rebuttal and mr arbiter and the new sanctuary coalition are entitled to escape pending appeal to prevent immigration officials from using their deportation powers to insulate themselves from public criticism the government's conduct here is outrageous and unconstitutional and congress did not and cannot constitutionally deprive federal courts of their power to say so now you need to test server a no i'm sorry i think you made the  arab american and it discrimination tests of outrageous conduct we absolutely do and i honestly i don't think it's i don't think it's rare it says with that will only find it rarely i understand that and i think that the conduct here meets that meets that standard that common and the reason for that is that the premise there is that a non citizen who is unlikely to speak otherwise will decide that in order to and are and is here so it ices discretion and will decide that in order to increase their odds of staying in the country they will publicly criticize the agency that holds that their fate in its hands and i think it's far fetched to think that that will happen particularly often even if it does happen  we have extremely strong evidence here which that which the district court accepted as true that that is the basis of the government's decision here and i just see what that means and i think that that basis for the government's decision i absolutely outrageous under number what that evidence is that that it's the speech that's the basis for the attempt at removing not the outstanding removal order which is several years old absolutely i just like to place an opinion one point which is that i don't think that the record is such that any court and certainly not the state panel is in a position to weigh the party's competing factual contentions but let me answer your question as to what the evidence actually is and i come back to that so mr rugg here since since two thousand and seven two thousand eight has been in this country on under an order of supervision that allows him to work in this country to live here under color of law so long as it complies with certain certain conditions and checks in regularly with ice he's complied with all those conditions for eleven years and you have a stay on the third circuit court from the from the district in new jersey which is which is on appeal to the their service so why do you need another one because there is absolutely no guarantee that that that stay will know that that stay is for a four pendency of different litigation that may be on a different track but we know what track it's on because we know what the third circuit is doing they asked for a briefing on the  appellate jurisdiction question which they have not decided correct and if the government is right that they have appellate jurisdiction which is the government's position there they then go on to the i don't know which type of jurisdiction it would be but it's the next jurisdictional question would have to be briefed would it not yes absolutely that you don't you think our court can decide this case before all that happens if you all expedite the appeal the third circuit is not the only court that could solve the stay the proceedings are still proceeding in district court as well the there was a hearing on the corner of this petition there was post chairing briefing that is ongoing right now and is scheduled to and in a couple of weeks and then the briefing it might but but there's a but i there's no guarantee that it will take longer than it takes this court to say those aren't worried is that if those stays or are lifted the government's going to swoop in before you have a chance to come back here absolutely and the government has all asked them about that they may not they may not be quite so abrupt in view of the of the district courts judge for its ruling already cautioning them about abruptness at every stage in this proceeding they've in these proceedings the government has moved with extraordinary they were great but they now have a district court ruling which they didn't appeal which said that they were you can do i'll let the government answer that question but i i plan to ask them please do please do and my only point is that we we don't want to be at their mercy we absolutely need a stay to to guarantee that that  the combination of the new jersey stay the district this third circuit briefing some government representation to us that if all that disappeared they would alert both u the score and give us a few days to deal with those that would be sufficient and if you say insurance would it's it's not as much as i'd like but if it's all the courts want to give i'll take it i've won one thing i yes where is that it's as far as i know it's it's been the motion has been submitted and hasn't been acted upon i can check out on the bottom there is that where is that's that's before the board of immigration appeals we can check that what's the docket under an order of supervision since two thousand and eight what that order order supervision says is that he will be granted an orderly departure what that usually means is that the government tells them they're going to revoke the letter may i continue my cutting into my rebuttal ok the what that usually means is that the government will tell the non citizen your order supervision is going to be released and they get a bag and baggage letter that's what it's not normally known as that gives them a couple months to get their affairs in order a plane ticket get ready to leave what happened here was that in march of two thousand and seventeen mr rob your had a check in with ice as part of the new new century coalitions a company meant program he  brought a number of clergy members and elect and local elected officials with him to that to that check and they were disturbed by what they saw that the point of that program is to bear witness and shine a light on the realities of our immigration system  was that demonstration taking place at twenty six federal plaza at twenty inside twenty six there was a rally outside and there were what happened inside inside there were they the people who are accompany the generated a lot of a lot of bad press for ice and it was precisely at that point when when that press advanced and had to push forward the national conversation about about what our immigration system should look like and it was at that point that ice started to retaliate they closed down the the that check in area that they cut off public access to it was started to surveil in fair to say that there was a coup and they had to close down part of their offices it's fair to say that there was a commotion  but i don't think it's fair to say that that was that was that was necessary and it's only one piece of the of the story here is a couple minutes rebuttal i have and i'm just going to if we were to expedite this appeal how much time do you need for your brief on the merits are open the morning good morning may it please the court my name is steven cook cheever and i represent defendants in this matter so i want to start by addressing the eleven years mr ragbir has been in this country since he became subject to the final order of removal and why what happened during those eleven y shows that this is not an outrageous case as you realize your your adversary argues that the longer he's been here after the final order from move on the more suspect it becomes that he's being ordered to go on a certain day and in that without notice i should not be penalized for exercising its discretion and mr regulars favor earlier in this process the theme of this case is that the executive has discretion as to when it forces final orders of removal that discretion is not subject to jud icial review earlier in the sequence subject to abuse whether or not it's said to judicial review this court and the supreme court have held that the political branches have broad power immigration context however there is always understood to be some constitutional limit to that even to that very broad occasionally called plenary power in immigration context so yes there is a residual some judicial did hold open the possibility they did not actually hold in that case that there was an exception but they left a door open which suggests that there is a possible i'm sorry as the government agreed to that this co held in russia as the government agreed to that it is a living getting position at the doors open that there is let's call it the scalia exception does it exist in the government's view the government's view is that there is a possibility that there is an outrageous exception to twelve fifty two g s so if there if if in the government's view there is such an exception why shouldn't we grant a stay so that a merits panel can determine whether that condition has been met in this case because out as a matter of law in this case that condition has not been met but that's the merits were being asked for a stay pending the merits right on the standard there your honor is a that what i'm trying to say is that this is a legal question this is not one that needs further facts why merits panel will be convened in fairly short order to decide that a legal question but your honor this is the present application does present a question of a substantial likelihood of success and so to the extent the court has to evaluate the likelihood of success it's going to reach these questions and while we've we said in in some cases that that substantial likelihood while it's more than negligible to be sure less than fifty percent of your papers advise us that the supreme court rejected that statement is not correct you say that in your papers the supreme court in no i'm talking about your papers now didn't you would vices that the supreme court rejected the less than fifty percent standard it rejected the reasoning that the mohammed  decision basis that conclusion on weren't you more specific didn't you say they rejected the less than fifty percent standard yes your honor i have and in fact isn't what they said that are right that the  irreparable injury analysis of mohammed was incorrect in focusing on the possibility of just one alien staying here that's what they rejected isn't it your norm my read of muhammad v reno which i is less than fifty percent is precisely because of the sort of negligible interest that the government has and in an individual case you don't think the decision is carefully distinguish between the first state factor and the irreparable injuries they factor on the country your honor i view the main holding of mohammed reno is that those two factors are connected because it sets out a sliding scale approach so that is precisely there to be weighed in the aggregate as the d c circuit has held and we have failed but what is a substantial likelihood itself that that's standard doesn't change does it there is a threshold that there's sort of a floor i think that comes out of the nican decision and but then beyond that as muhammad reno pointed out there has been historically some imprecision and exactly what a substantial likelihood of success against women when you were in kenya for your for injury strong showing  of logic there is that in mohammed or reno this court held that it was a less than fifty percent likelihood but it's specifically based that holding on the idea that the government's interest in a particular case of removing an alien is negligible the supreme court and the can that reasoning that the government's interest is negligible in a particular case is not correct and so if we go back to mohammed or you know and we say well this court said it was less than fifty percent there but the reasoning for that conclusion has been over you think because the explore the issue of whether this day is needed there is a third district of new jersey stead that's correct term and you were briefing in the third circuit the appellate jurisdictional question  right yes the thirty two argued to the third circuit there is appellate jurisdiction because in your view that's an injunction and not a did a stay of proceedings that's correct because it was issued outside of a petition for a few contact yes you're on hand and it is or briefing schedule for that not that i am aware of present here first waiting for the third circuit to answer the question they ask they raise the appellate jurisdiction question whether it's an injunction or a stay correct right yes after that there will be briefing on the merits of the district court of the new jersey district court order correct all right so that'll take some period of time we don't know exactly what but it is not likely to happen by tomorrow afternoon i would think so yeah i would hope so right now they're worried that whenever that time period ends they're at risk of an immediate that is a call that a bag and baggage orders so i want to ask you is is that a realistic fear or in the view of judge forrest decision that you can't come in and scoop a guy up  the middle of the night after he's been here eleven years can you give us some assurance of that there will be some lag time between the time the third circuit if it ever does vacate the stay and the time you will proceed  row remove this petition i can't make that representation you can't you still want to be able to come in and pick him up the instant the third circuit state you that this record stay side so you don't accept her ruling that you can't come in after someone's been here eleven years you can't change your mind but you don't accept her ruling that you can change your mind and instantly remove him  accept a ruling as a matter of law for pending appeal we come in like you're really doing it because you think it's incorrect that's correct your honor you think you can after eleven years change your mind not only change your mind but come in without any notice whatsoever and take him out of the country that's the government's position as we argued before judge forrest the discretionary decision to enforce a final removal and also arguing here is not subject to judicial review and not asking about in forcing the order i'm asking about timing on kind ng only so is it the government's position that as to a person who's been here law by your supervision orders since what twenty eleven or twenty  all that are separate from the order of supervision but yes i say exercised its discretion to keep him in the country during that time i go and so over that period of time the government has said to him he may stay right  yes your honor i would point out that during and don't now the question is as to a person to whom the government has said over those years you may say is it the government's position that when it changes its mind and seeks to enforce the removal order it may take him that very day and get him out of the country it it would depend on the specific circumstances of the case and that's not what we know it's this case i'm not talking about a hypothetical it's this case so we know the circumstances been a signal significant of correspondence from mr ragbir on ice so i am not sure that to be clear this the letter that he has received now i believe would satisfy any notice requirement that judge forrest imposed their decision have the technical as a technical matter bag and baggage letter doesn't say you are being removed right now it says you go home and get ready to go correct correct and so there's but is is that what the government is that what you're saying the government reserves its right has the right to issue a bag and baggage letter at any time correct your honor you know that that's not reviewable but i think what judge newman is pursuing is the possibility of something that may removal it's so there are a number of regulation and regulations and rules in place that sort of control the removal process even judge forest held in the first drug case that those were complied with here i think she described them as a corn maze but she said that they had been complied with and if those are complied with the government's position is that at least in mr rogers case there is not a constitutional barrier to if i skim plies with all the laws and regulations to enforce unified order for last time he reported he was taken into custody is that right i'm sorry yes your honor in january twenty eight hundred he was taken into custody yes he showed up and  intention in the event the new jersey state is dissolved the circumstance would be different your honor because right now he has already received a bag and baggage letter so so what i do i'm just i'm just trying to stand what you planned to do in order to educate myself whether there's really a need for the relieve they are seeking here so i need to know if the new jersey state is dissolved number one are you going to take him immediately into custody  political regulations yes i sentenced i believe to enforce that if the bag and baggage letter period has expired we're dealing with a lot of technical things here and i'm afraid i'm not on top of them so i'm not in a position to represent what the timing would be if if there were no if mr wagner was not subject to the much assurance that we ought not to give him the insurance policy he wants i would be much more sympathetic to your side if you would say to the core don't worry we're not going to take him in the dead of night if the new jersey stay is dissolved we will give him x number of days to come back to this court in case the appeal hasn't been decided to assert his rights but you're not willing to say that ari i am not presently in a position to say that ice is not going to exercise that makes your position is there an interval between being taken into custody and being removed and there seems to be he's here so in other words he was taken into custody when he showed up at twenty six federal plaza and went with his entourage and at that point he was given a bag and baggage letter but he was held in custody oh was he given a bag and baggage letter he was held in custody at his after his check in in january twenty thousand he was held in custody he was not given a bag and baggage letter he was they were began the process of removing i thought you said earlier that he was given a bag and baggage letter at the generate twenty eight thousand check and i don't know i don't know when you said it was given one now he  currently has a back and baggage letter and and so and that has happened i would say since his present case started ice has given him back in baggage letters alerting him on putting him on notice that he has these check and dates that have been sort of moved sequentially as this case has progressed and i believe in pretty much all of those letters it has said you know something to the effect of you know you may be removed at this time essentially you should bring a bag with you if you if there are no judicial stays  and if they do not then there there would be some period of time and they would need to get them well across one other time if the new jersey stay is dissolved and we do not grant a stay  suggesting we did not we just we just for whatever reasons don't grant one can the government assure us you will not take him into custody and remove him or at least let's say seven days after the new jersey state is dissolved i mean you just that that it's two questions take him into custody and remove him there are two questions which there may be two answers they may be and they may be different know we can't make that represent we can make either of those representations and you even represent you'll give them one day before you take him into custody i am not in a position to make any specific representation as to the amount of time but do you realize that doesn't make your opposition to this day more appealing certainly on our but our position here is that all your position our position here is that it is a matter of law this court judge doesn't have jurisdiction and it were it to reach the question is that marriage is is the solicitor general letter to the supreme court mr grievance letter still operative at the present time you know the letter i'm referring to yes your honor i don't think there has been any withdraw to be clear we're discussing the subsequent the circumstances addressed by the dream and letter are present in this case because here mr wagner is not challenging his final order from move all he's only challenging its execution he lost his legal permanent resident status once he became subject to the final claim is  the removal here will not constitute irreparable injury and that right yes but for different reasons than those offered in a cannon we're not we're not we have never made in this case the representation that  ragbir can return to the united states if he is removed i'm sorry you never representation that he can come back or cannot come back but he can come back your honor we have not made that representation here i'm still not sure  can't is there at the at the end of that one of the other way around if you remove him can he come back i cannot represent to the court that he will be allowed to return the solicitor general letter says instead a litigation going forward where the government contends that removal alone does not constitute irreparable harm it will submit to the lower courts the procedures to facilitate return described above have you done that my understanding is that and i says policy issued pursuant to that letter concerns the petition for review process which is not and has nothing to do with thirteen thirty one suit correct your own so so it on top of that here mr rather has not challenge his final order for move all he has lost his legal status in the united states which is different from the petition for review context where someone does challenge a final order removal and argues as a legal matter that they have a right to remain in the united states less than here illegally during the period when you gave them those orders of supervision but yes he was here illegally well it to the extent that he did not have a legal right legal status in the united states once he became subject to his final order for move will he was no longer a legal permanent resident was he required to leave during the period of those orders of supervision no but he was not lawfully within the united states but he didn't have to eleven when the orders began and you issued i think at least three of them one form or another they may not have been identical for orders that gave him to believe he did not have to leave during the period of those orders during the death interval did he do anything to warrant a change in the government's position did he do anything he completed an exhaustive series of processes to his immigration proceedings and before that to his criminal convictions so so he twice came to this court challenging his immigration proceedings are you not suggesting those justified you're removing him are you i ask you did eat did he do anything that w a change in the government's position the defendant thomas dekker in this case concluded that his remaining legal challenges after it in twenty eighteen when he applied for another stay over administrat or had a low likelihood of success i did not conclude that when he still had petitions for a view pending before this court he was initially released from immigration detentions pursuant to the forbearance policy that ice has with this court then that petition  for view was denied he received his final two year administrative stay a few months before this court in march twenty six thousand denied his second petition for a view at this court so there is a difference when mr ragbir came to ice at the end of twenty seventeen and said i would like another administrative stay or move all he he had exhausted a number of immigration challenges that point he had already voluntarily withdrawn one of his quorum notice positions and nude petitions in new jersey he subsequently filed that petition again but i says  evaluate the legal challenges that mr ragbir took during the eleven years that he's been subject to his order or are you saying you were content to issue those orders while he was not that he gave you but as soon as he started al so it certainly there's no question oh sure once you started to inforce he challenge you so are you put it this way why after letter issuing those orders permitting him to stay in the ministration change its mind and say we want to can to account that his remaining legal challenges which were i believe an application for a presidential pardon and a core of notice petition in new jersey that he had once voluntarily dismissed but those had a low likelihood of success and so i scanned even filed those in those that applied for mr robert he got the full benefit of that and i should not now be penalize for basically following a successful policy and the in the first case and giving mr regular the chance to fully exhaust due process over the few quick points your honor sir you gave the government every opportunity to represent that he would not be whisked away than the moment a stay is is is lifted and i think they could make this representations to you we need a state if there's no stay he is going to be he's going to be deported we on september issues in this case fall like dominoes twelve fifty two g has to be you have to rely therefore on the outrageous misconduct absolutely and then it has to be on a basis that is rare absolutely therefore it cannot be on a basis that can be manufactured by somebody who becomes an activist after they get a final order of removal absolutely and that's what happened here at the allegations here are the alleged conduct here is absolutely outrageous well i must understand you're  using the word outrageous but one of the and the supreme court used it as well but this week i also said that it would be a rare bird around our office now how could it be a rare bird if anybody really can do it i mean we had a whole bunch of cases dealing with people who demonstrate in front of the consulates of their home country and then say well they have my face they have my name put something on the internet therefore i have to stay and we've looked at that with a cold eye what happened here was that in response to mr wright bears and the and the coalition's advocacy i shut down the check in room they bake surveilled the coalition's offices they abruptly deported another leader of the coalition they attempted to deport mr ryder in a manner that the district court found was unnecessarily cruel and there they are continuing to attend to it to go to bordeaux purpose of twelve fifty two g according to the supreme court is of removal proceedings isn't it i mean you don't want him removed so you have to prolong the removal proceedings am i missing something may answer the right things go ahead all that you're missing is that there's a constitutional issue here crime or not they just want to prioritize people who are members of certain gangs there's a right to association that would be a constitutional claim that would affect scores maybe thousands of people are you saying that the  governments that the that people in that category would be able to enjoy federal jurisdiction to challenge their removal of silly not there's no there's no first memory to be a member of a gang and that that is very this is a first amendment right of association to not to be a member of a  is that it is outrageous for the government to attempt to deport someone for criticizing the same officials who are making the decision the deportation decision and criticizing those same officials and their deportation powers this is this is as if imagine the r s is going to use is going to aggressively audit any taxpayer who protest the tax loss the minutes to imagine that it's i think it's this is this is a government agency that is using its current powers to shut off public debate about whether those powers should be changed thank you thank you both that's expertly argued this and i just held on does the government need for  so that would be you would file like six weeks from now on that doesn't doesn't sound like exactly