abroad especially with no hearings or procedure on june th two thousand eight hundred president trump tweeted when somebody comes in we must immediately with no judges or court cases bring them back from where they announcing that migrant protection protocols the defendants denounce misguided court decisions and david laws we can see the administration's st made the decision to force sixty five thousand dollars asylum seekers including sixteen thousand dollars children to mexico and then they looked around for a lot of justify their actions these asylum seekers included mr cruz a college d senior who escaped but a mile of his life was threatened by gangs d but already murdered d his best friend because of his sister's church activities so the defendants found the statu one which as people would know documentations and fake documents which is obviously which all the m p people including mr cruise should be under and b to which is for other people basically those who are right to the united states says you cannot apply p to to from one to be one applies sheldon let me interrupt you if you could if someone who is eligible for b one doesn't fit ever into the b two box how is it possible for our immigration to do what they frequently do which is take someone eligible for the b one box and instead send them into the non expedited proceedings provided or in the bt box ok so that's a great question d you know the stat you clearly says they can't do that but d then you know the  like your argument is that that although it is frequently done and the statute actually prohibits it and if we adopt your reading of the statute it then we would be n a different way is it legal for homeland security to take someone who qualifies for be wined expedited removal and to put them into non expedited removal procedures absolutely not i mean there tension between your two statutory arguments and let me tell you why i think there might be and then you can tell me why if i'm off base talk you can tell me why i'm off base on the one hand you make the argument that you've just been making that an immigrant is either in the b one box or the b two box the b two box with regard to undocumented immigrants applies to people who have been in the country for two years or more that's because the b one box applies to people who are arriving without documents and to people who have been here for less than two years without documents if that theory is right with the b two box only applies to undocumented among the undocumented population the b two box only applies to those who have been here for two years and how can you argument be correct that b twenty three when it says an immigrant who is arriving in the present tense how could that ever apply to anyone because as you've defined it in the universe an undocumented immigrant at least the twenty three is not supposed to apply to anybody who's been here less than to any of the twenty three is not supposed to be apply to anyone who has been in the country less than two years the same time you can't be arriving if you've been here longer than two years well i think your honor that's that's a completely misreading of the statute the statue divide me an example of an undocumented immigrant that between three would apply to you know someone who came in a tourist visa overstay i mean they are legally entitled to be in the country and then they overstay or are you know i mean i actually between it's supposed to be more for people who are coming to the united states so it really wouldn't apply that much of people in the united states if that's what the courts are referring to but you know it could i mean it could under the terms but d it's really designed for people that are writing to the united states that have documents that have a legal i suspect you will tell me that anyone who's twenty six yards or farther from the border has entered and is no longer currently  extremely important d goal of the framers of the declaration of the constitution and they wanted to protect individuals from the executive branch more than any other purpose of the constitution and you know and then we've got it we've got the fact that you know when they wrote the constitution i mean everybody you know they were immigrants everywhere so and they deliberately when they wrote the due process clause they use or persons instead of the word citizens because they wanted to include immigrants i mean that's obvious for example three of the st members of the u s supreme court were immigrants i mean the idea that they would never play to dimensions is actually quite absurd so i mean that's why you know that's that's the reason so d d so there's been and not only that there's been a long history throat you know the entire since the constitution was written that they they said you know prank line rule if you're in the united states you have a right to due process if you're outside the united states you don't and that's been it's clear you know it kind of turns you you know where they said anyone in the united states legal not legal fees or meijer cases and you know this can thrash him comes along and it's kind of an aberration i mean they didn't i mean it's kind of the st time the supreme court has decided not to your due process is somewhat physically in the united states although you know the government process because it says persons then why not citizens you know can you apply to u s citizens on the border i mean why not so so d you know we just think it's a very troubling decision we would ask d the court to limit it to the twenty five yards which which they and you're giving them nothing i mean if they don't even ask them the question they don't say are you afraid to go to mexico to his interview they did ask him that but not before they threw him out of the country i mean this was what after it was brought back a month later but before got a later interview he had gotten the same interview he got later right before they before they return to mexico for the st time would that have sufficed for a lot of reasons no i mean that you know the standard that they're giving is the is more likely d than not which is the highest standard you know that they could possibly get i mean incredible figure they ask you know do you have a credible fear event which is a very low standard when the standard  expect them just to know what to do in a foreign country doesn't give them a translator by the way i mean that's not even required it's really i mean if you you know just what you're saying you're giving them nothing i mean literally there's nothing there you know d right to doing any country mexico so clearly the government has an obligation to ask questions and to to get them of some kind of a fair hearing you know something that's not just you know someone someone basically supposedly hasn't questions without we're director ok and it just turns out that there's a lot of places on the canadian border which are ordered crossings but they're not called ports of entry and you know and i mean i get what it's called for coming in on the new york border but there's many and they're just little border crossings with maybe a one hundred people and that's what congress meant i mean that's i think mr sheldon let's take that example let's say that there is a border crossing between canada and the united states but it's not a court of entry correct to be c applies they are give me an example of someone who would fall under to be see at one of these canadian u s border crossings have that's a cartel car into the united states are they in order to know trigger to be say no border but you're on the border crossings are exactly the same sports of entry except they don't they're smaller i put in this whole statute and we don't think it's anything to do with social merits and the question is who's not writing it the u s border it has a right to enter but it's inadmissible and you know it's not europeans because they would fly here they wouldn't come to a port of entry that you know the border it's not it's not latin american sentiment it would fly here if they have a visa they don't drive so really we think it applies to canadians and that was the whole purpose of the statute is easy it's really i mean it's thirty five million it's being used and that's you know there's so much proof of that and mention mexicans like they don't even say maybe a mexican one would want to find them which you know they and they spend so much time writing all these provisions of what i mean senator leahy and others were hear from the united states question of irreparable harm if we i'm not saying we are but again hypothetically if we were to decide mr sheldon is right as a matter of statutory construction and one or both of his arguments then is irreparable harm relevant that is not if we decide likely victor on the merits but if we decide he is the victor on the merits the government's response would be that that consideration would still be relevant your honor and the reason for that is that this court has always described you rubber ball imminent harm as a critical part of the four factor calculus huge to assess preliminary  motions and importantly showing of irreparable harm you familiar with our opinion in the united states association of reptile keepers two thousand and seventeen opinions briefly your own ok well in that case we held  that if we that we can in reviewing the luminary injunction issue we can decide fully the merits because it's the st question and if we decide the merits fully and decide that he  correct that this is a statutory violation that's the end of the matter and it makes sense that that would be the end of the matter because whether there is harm to the government or not or harm to the plaintiff are not once we decide the merits there's nothing left to be which was from a player injunction does not prevent us from definitively deciding the merits of the clause as meaning and i think we've decided this question i don't mean to belabor it but if we were to decide that you're wrong and not just that there are that he's likely to succeed on the merits of the statutory argument but he does succeed that would be the end of the matter just like in any case once some once we conclude that the government violates the if the supreme court grants cert on innovative labs but or we've issued a decision i'm sure i'm sure that mr cruz would say we should continue full speed ahead and decide our case oh we do your honor my understanding is the supreme court is slated to consider the petition added september th conference and of course the government will promptly informed this court in the event that circus granted ok thank you so turn the nd cruise argues that he was not arriving on land when he was apprehended shortly after illegally crossing the border and the government will address each of those arguments of the first cruise is an alien described in sub  should one which is the other illions and the differentiation between the categories only occurs after the inspection decision is made and again that stems not just from the overlap by motion but also from the plain text of section  so i'm not sure what to do if it is mr cruz someone to whom the expedited removal provision applies but the government chose not to put him through those proceedings and shows you have  again the government's view is this comes back to what the th circuit articulated in its motions people position which is these are post inspection mutually exclusive categories not pretty inspection mutually exclusive categories and the reason description of people who are covered by the expedited removal provision it's a command to the officer as to what they should do with someone who is a rival right it's not part of the definition of who is subject expedited removal it says what will happen to them yes your honor but the government's view is that provision uses the word shall and commands that immigration officer not to exercise that discretion in this particular case so he is someone to whom i guess in your view both the expedited removal and the one thousand two hundred and twenty nine a proceedings apply and tell you the government's view is based on that limited clarifying function there is no basis to conclude that a same provision in congress intended to exempt a large swath of aliens from contiguous territory we're trying to turn into the next  argument and the government's view mr cruz's claim that he was not arriving on land when he was apprehended shortly after crossing the border illegally is for close by the recent decision matter of n b c which the government notified the the government's view is that the solution is controlling on this issue well now i have another question your argument is that the i a e a opinion is controlling on the d c circuit i'm new here right sheldon and gives that is actually arrived one day and detained the next day because it was late at night but it gives exact dates and times so i don't know how you say it's not a record the government says your honor is that the facts are substantially similar in the beauties of opinion does not depend on the physical distance to tell you the travelled but rather on the statutory tax and the fact that accepting the proposition that mr one flood and my recollection is so i think is an empty c v i can't remember the talked about in the same day and this was way more than what this was three football fields this is more than one foot in so i just i don't know where we have where where where where when do we get a reasoned interpretation from the i a e a on when do you stop arriving in your arrives it's show your nature of the inquiry there will not be a fixed bright line rule that the government respectfully submit that this is not a case that implicates the outer limits of that definition and as a practical matter the m b p guiding principles generally provide  several years and then and almost immediately before oral argument in a related case issues a chevron interpretation and the court accept that as controlling i understand the argument that the b i and general would have this but we have to at least consider the context here which is that the ira certainly knows what's going on here and that if it's the case that it can't can't in the in the course of and as for the specific timing of this specific decision i'm not aware of any considerations that are informed that but again just based on the structure of the eye and say and the fact that the attorney general's rulings on questions of law are controlling the government would submit that on right and i don't know what it is where does this a regulation a policy statement to hamburg where does ninety six hours come from it's a guiding principles document so it's an operational document that d h has issued to it but at any event the government submit to the district court's holding was substantively correct and consistent with this court's precedent section twelve dollars b to c provides that the secretary may return aliens provided up the considering the national interest waiver statute and just back up and ask one more time see talks about in the case of an alien described in some paragraph a and then some care of a begins subject paragraphs me and c and just to be clear so your definition you don't read that subject in paragraphs seems the as someone who's described in b you just mean to someone who hasn't been treated under b just to be clear right that's what you mean objection to this court can no wonder must be some reason i'm missing i don't want to make a mistake here what's what's the reason that this section isn't relevant so this largely just stems from the court's order of operations in if you are wrong about the discretionary question and the jerk therefore the jurisdictional question would this apply or not apply what age ship when it isn't there a says nothing in this section shall be construed to create any right yes rather i'm not trying to make your case for you i have some feeling that i'm missing some reason that's not usual no the government buries its best argument in one sentence and then doesn't make it so i just feel like i'm missing something here so again we have no objection to this court concluding that there is no cause of action here because the treaty obligations are not self executing there is no domestic statute thing as did you make an argument that there is no cause of action here the government did a search that because the treaty obligations are not self executing but there is essentially no mechanism for mr cruz applies here as well princeton the the guidance and principles issued by the secretary of d h as were specific and explicit that protections under convention against torture and non  if you don't so you're under the only situation in which the government believes it would create such a right is if for example the claim was that the agency failed to abide by the prescribed nandrolone of procedures but i went but long after he'd been returned and then brought back in and even at his even when he was finally given one it's not clear that he was told he could have counsel there is no immigration judge review explicit that existing refilm and procedures and protections would be retained did not say that we would change those in a way it's not ordinarily required the bay isn't ordinarily torture or mistreatment in the place to which they're being returned is that the normal practice under of twenty nine dollars a procedures show the only reason i'm that process what decided m p p you're applying that process ordinarily my understanding is that the burden is not on the individual him to st raise that question without notice well yet so just to reinforce the point i just mentioned the context here is fundamentally different and importantly you know you can express if you're returning to mexico at any point during the time that its removal application or obligations and practices then changing this whole process the burden of raising the issue the level of proof by which they have to raise the act of notice that's so different doesn't it that is a change so it is a change your honor but the government again believes that the complex years of different but it's not a departure from previously existing policies that were applicable in  should considerations optical to contiguous territory return of an alien to a country that he or she transit through those considerations are fundamentally different than the considerations of returning to the only into the home country where they may face persecution is it your position that the refugee act and the convention allow return if someone actually were they didn't know to raise it raises didn't know they could raise it and they actually were in fear of being harmed in mexico your view is that you're not a obliged to apply that for contiguous territory return  you just tell me all you're obligated to do under the refugee act and the convention all you're obligated to do is what you've done here is that true or not yes true true they are do this exact same opportunity to raise a claim of fear the procedures fashion are different and i would also point to the supreme court's decision bersih she him where in pertinent part the supreme court discussed the abuses of the credible fair process the fact that there's been almost a two thousand percent increase in credible fear claims which have been turned exacerbated the existing burdens of the immigration system and so given those burden concerns the government's view is that agency was entitled to life a specific context presented here to fashion court believes it would be helpful but in that document did just explain its view that based on the agency's experience it had been in administrative credible fear interviews its view was that if it altered on reform the procedures in the manner suggested by that against like mr cruz the number of pure claims would become overwhelming and would lead to one terrible burdens on the limited number of asylum officers there are and again based on the supreme court's decision that concern  purely conjectural i don't understand as it is burden that nothing in what you just said said that they were improper or not credible credible for your claims is the agency able to  establish a standard that rejects these claims simply because accepting them would be too burdensome is that consistent with this with the treaty in the statute oh no you know your honor so they got the governments to use that in a credible fear context for example  station the supreme court noted that of the large volume of credible fear claims that are made many turned out to be merit less and more importantly many turn out to be abandoned and lead against an alien simply it's gone into the interior of the country but the government's  so i don't know maybe maybe there are a lot and that not to have merit aren't there are there a lot and also do have merit so it would not be possible for me to quantify the number of claims that would to the worst version of what you've just described i'm going to describe and then i want you to tell me you would why that's not actually what happened way to avoid that administrative burden for asylum seekers is to just not ask them you know they're seeking asylum the guidance from the secretary says it's a rd country nationals should not be in voluntarily returned to mexico if the alien would more likely than not be persecuted in certain reasons or would more likely than not be tortured if you ask everybody are you that you're going to return to mexico while they're waiting on their asylum claims if you ask everybody are you more likely than not to be persecuted and are you more likely than not to be tortured you're going to get more yeses then you would if you just don't ask the question because there will be some number of people who just don't know that they're supposed to tell you they're afraid of returning to mexico will lead to either their persecution and that's a good thing you say from d h s s perspective because returning to mexico if they're more likely than not to be prosecutor tortured or is there a different reason so the missing component of your question goes walker that i would just point to is that returning to the credible fair process  supreme court that not only was there a massive increase in the number of credible fear claims but many of them turned out to be completely false and were beheaded and so the government would just point to that and state that based on that experience with a number of credible fear claims that turned out to alternately be devoid of any merit the h s fashioned different procedures in this context it was a title to do so and so d h s made a policy decision exercising their discretion that in order to avoid the burden of a lot of frivolous claims they would adopt a policy that is guaranteed to not catch some number of meritorious cl more likely than not different than credible fear asylum hearing do they have to step they have to up front do they have to show more likely to moderate just to get to the hearing they just have to assert a credible fear yes it's incredible we're more likely than not or or is it brief i think we have your arguments to the extent we don't we have them in the briefs i mean let mr sheldon have two minutes and thank you very much for your argument more likely completely different incredible year d and mr sheldon we're having trouble hearing you need to speak more directly into the microphone hear me no your honor ok thank you so more likely than not it's completely different incredible figure credible if you're set on indictment in details extremely low standard more likely than not you have to prove you know beyond whatever you know beyond mere fifty percent that you will be persecuted it's extremely our standard for someone to me without evidence without a lawyer without any type of procedure i mean it's virtually designed so there's no chance on earth that they're going to pass the government claims they don't have money that it's too much of a burden i mean and they said a bunch of nineteen billion dollars jurisdiction it's a question of the cause of action what do i do with that language or can the government didn't bring it up previously it's kind of but that's not the government does have a sentence and i didn't think of it myself i'm trying would never have fun of it myself because the statute complicated but it is included in the government's argument what what do you know anything about it if you don't i understand it's because you know i don't know what it is going to just i mean clearly the constitution and the statues although it takes great precedence over one little line where they say you know that you don't have an individual right i mean i think what they're referring to would be a limitation or a lawsuit where you're asking for damages i mean i don't think they're talking about their constitutional rights or d the d statutory rights of sixty five thousand experience as an immigration lawyer that the cat protections that are ends well thirty one may be raised on at least review of a final order remov maybe we could argue that only you know only twenty two cases of apparently been approved out of eleven thousand cases you know that have been decided in the n p p context because people don't have lawyers they don't you know they don't have anything you know they don't even know they have hearings think you mentioned it in your reply it says that it's a d c circuit case that says when it comes to the question of whether or not a foreign country is going to torture somebody we're standing there judges don't decide that that's a that's a decision completely in the executive write your own and that's completely against a lot of government smoke you're trying to distract the court and i think that the government's argument asking about the d c circuit binding  revision they have nothing to do with this case i mean when you have an extradition treaty with another country you know that that supersedes anything else i mean if the united states signs a treaty with a good network returning a criminal ok then they can't serve bringing up was going to happen and that's what we're talking about here and if there's no manner i know you don't think that but assume i think that you are seeking prospective relief even if i were to agree with you that he should have gotten the interview earlier what what do i do with that what can the court do with that we think this is a constitutional violation so that would take care of the injury you know the irreparable harm but you know in addition mr cruz is sent to one of the most violent places on earth an area controlled by the orange drug cartel believes he's living in daily terrorists afraid  matter under submission thank you very much