good morning may please the court the issue in this case is whether the discretionary function exception bars mr tallman claims under the f t c the district court decided that it did and granted the government's motion to dismiss we respectfully disagree we believe that the law enforcement proviso contained in twenty eight u s c twenty six eighty eight that specifically list holds the rest unfolds imprisonment by law enforcement officers provides an independent waiver of sovereign immunity that is not subject to twenty six eighty eight the discretionary function exception but most importantly the discretionary function exception does not apply because the misconduct in this case did not involve any discretionary function the c b p agents agents had no choice but to arrest mr tallman because there was a policy in place that required them to do so as agent wilson testified he believed tallman was in the country illegally but he could not release them for fear of losing his job not only did the policy eliminate any discretion on the part of the arresting officers it did so in direct violation of c thirteen fifty seven eight two which gave the officers the power to arrest only if one they believe that mr tallman was in the country illegally and two they believe that mr it's almost likely to escape the agents recently in gibson the discretionary function exception does not apply if the challenge to actions in fact violated a federal statute or regulation but you're saying that if that's the situation where an agent violate statute he's doing something wrong here you're challenging the fact that they followed a policy in your real problem is with the policy so why should these individuals be held accountable as opposed to challenging the policy itself why they had no discretion so the government's argument was that it was a discretionary act whether to arrest or not arrest and we're arguing that there was no discretion and to the extent that the the person who adopted the policy had discretion maybe they did have discretion to do so but that discretion does not count because the policy is in my lesion of the statute it's a faulty policy you cannot require that you cannot have a policy that violates agency when force the law in or the united states now point territories i can make any arrests any day of the week any time of the day and throw them in jail this cannot happen that the  officers have to respect the law we cannot give c b p unlimited power to pull anyone off a bus and throw them in jail without some degree of protection we can we cannot let them arrest people for law and it is very difficult to enforce it in this day and age because there is no certificate of alien registration a green card would be something close to us but in the case of mr col passport there is no card that the officer can see it's just a piece of paper that's number one and number two we have continued to maintain that mr tallman did have that piece of paper on possession it was on his phone it was an image on his phone and because it's not a secure document it shouldn't really matter whether an image on the phone but is is defective compared to a regular piece of paper and this is something  as far as i know this is an issue that has not been decided in the circuit but mr tallman oded provide an image of that piece of paper to the arresting age that's number two number three mr tallman was never charged with the violation of thirteen zero four he was not he was charged as an overstay and from the deposition of the arresting officers it's clear that c b p doesn't really arrest card just to explain to this court an edict card is an employment authorization document which is issued in certain cases but not in others for example when somebody applies for a change of status just like mr tallman did from student to h one b which is a worker status again there is no employment authorization there is no a wilson put it it's just a few of paper so what agent most instead even if we had seen this document we would have still needed to verify his stats and this is where you know with the lack of ability to verify it's almost status comes into play again they had no idea how to do that they couldn't verify a status they had all the information in the world that they needed to verify the stats they did so even if assuming and there is no one really needed card in the situation agent well so was not trained in immigration law he lacked the information necessary to verify its almost status so in response to your last question the agents boarded the bus mr tallman was taken off the bus because he was not a us citizen he provided all the information necessary including an image on the phone to the arresting agent as proof his legal status in the united states he have a texas a deep which is only issued to someone who has a legal stops there was an immigration status notation on the texas id indicating that he was in fact invalid immigration all of that was not enough mr tallman was taken to the c b p station then he was put in jail for the weekend and only when another officer came in on sunday who apparently had the knowledge to status the status was verified and he was released there was no additional information supplied to the officers between the time he was arrested arrested and the time he was released it was just a matter of somebody working that friday night who had no ability no training no resources to verify  the discretionary function exception simply could not apply it only applies to cases where agents use their judgment and you just say this guy you came in sunday exercised his discretion in a better manner by figure verifying that your client was in fact here on a visa you know he was in exercising his discretion he actually did the job that the other people were supposed to do on friday night it was a discretionary wasn't in the government's discretion to verify or not verify their status if their particular mock the boss they have to verify is that it's so it was absolutely not discretionary and if they done it initially in a non court is well aware there are exceptions to that waiver one of them and the one that's before this court is the discretionary function exception there's a two part test under go bare first did the government or was the government exercising some discretion or was there a mandatory requirement the second is is was that discretion susceptible to policy analysis analysis what it did whether the government was exercising its discretion and the important point which i think gets cost to mention alluded to is that the discretionary function exception in the language of that exception it applies even if the discretion is abused so it's a defense for the government even if the government is negligent as long as they're exercising discretion that's an exception so plaintiff's main complaint throughout this whole case is that the government was negligent the government could have done should have done a better job of checking out this gentleman's bona fides during the course of of this weekend and the district court made no excuse for that the district court judge atlas wrote a very thorough forty four page opinion addressing all of these questions and in it she said she did not condone any negligence that might have been done their failure to find out this gentleman's h one status earlier but she said that does not stop the discretionary function from operating the court is well aware of the numerous cases that have found this f t c a case barred by the discretionary function even if the government commits some form of negligence because as i said by its very words it applies even if the discretion is abused so the discretion that is at issue is this is the statute there is a statute which actually plaintiff sets out in the hole in his opening brief on page sixteen it's eight u s c thirteen fifty seven eight  and so the question before this court is whether that statute which authorizes an immigration official to issue a notice to appear basically it's an it's an  arrest warrant ok to to issue that and it authorizes him to do that if two conditions are met one he believes that or has a reasonable belief that the law's been violat and the second is if he has a reasonable e belief that the person is likely to want to escape before he appears in court and the key factor there is that that statu does not mandate one thing or another it does not mandate that the official issue a notice to appear it gives him the discretion based upon those two factors to decide and to determine in his own belief whether those factors are met and then whether to issue the notice to appear the arrest warrant so once the court decides as judge atlas did bet that statute is discretionary and i don't think there's any question but it but that it is discretionary that pretty much in this case the other point that i want to make is that the plaintiff is focusing and has focused on he hasn't made clear what the challenge conduct is you have to look in the discretionary function at what is the challenge conduct and see what is that discretionary judge atlas in her opinion goes on at length you can find it in her opinion at page twenty four of her opinion she says that this policy the policy that planes refer him to which is that after after  notice to appear has been issued that people are detained ok she says that policy which your honor points out is also discretionary with an issue that policy is not the complained of conduct she says plaintiff challenges the conclusions of the aish the agency drew from their investigation of plaintiff's immigration status and the basis and timing of the agent's decision to issue a notice to appear charging plaintiff with being at malian illegally present in the united states which resulted in the m t a being issue which then also resulted in a about a thirty hour incarceration so what judge atlas did as she focused on the challenge to convict the challenged conduct was the decision they went on the bus they were looking around these kind of investigations and stops have been upheld by the supreme court and this court they asked this gentleman for his papers as the court recognized if this gentleman had been carrying his papers as required by law we wouldn't be here today but he was so the agents in my view went to great length and very patient tried to f his proper identification papers they called his room they called his mother they they checked as as best they could maybe they could have done better maybe they were even negligent in punching in the right numbers but that doesn't do away with discretionary function exception and so what judge atlas did is she looked to see what is the challenge conduct the conduct was they're stopping him they're investigating him they're they're issuing ok the the the notice to appear and there are two cases which are cited in our brief to directly on point the first line is i can't pronounce it sorry in g u y e n out of this court sixty five federal appendix five zero nine it cited in our brief and the court held that decisions made by immigration agents during the course of an immigration status are discretionary in nature it's also another case which is really directly on point it's a district court case we've cited it cod soup and there it's right on point that after an notice to appear was issued a gentleman was detained but the court said that detention is not the challenge conduct the challenge conduct was the investigation and there's a whole range of cases that hold that investigation looking into a prosecution of that  discretionary there the main point that plaintiff makes i think he misses the point with all due respect is the notion that simply because he was detained at the end of the dead and there was a policy to detain someone that that eliminates the entire are all of the other discretionary activities that took place in this case and that's just not the case it was discretionary to stop the bus it was discretionary to check this gentleman's papers it was discretionary to take him off the bus to look and the most important thing is that it was discretionary under the statu issue the notice to appear now once you issue the notice of pir to appear the fact that it was not discretionary whether to let him go or not is really irrelevant i don't know i really don't see the point in that it's like saying i mean unless i'm wrong usually when you are rest someone they're detained and so the mere fact that there are detained automatically until maybe a bail hearing or something like that doesn't wipe out the fact that everything that went before is discretionary ok that's just the result of making a discretionary decision i mean otherwise there's a lot  of actions that the immigration service makes where people are briefly detained with and that would wipe out the discretionary function in all of those cases i mean there's a statute  c twelve thirty one i believe it is which automatically requires that after a removal proceeding if someone is ordered removed they are ordered to be detained for ninety days officers i mean is that a vehicle for challenging the lawfulness of a statute or policy i'm sorry up up having trouble hearing are you asking whether that's a proper way to challenge see typically are for damages or wedging tortious conduct by government employees yes i think your honor this is correct i think he would have to show that not challenge  the policy and i'm not sure again i'm not sure that what he's challenging whether he's challenging this policy to detain and i don't really see again what that policy adds to the statute because the statute gives  detain so i don't not really sure where that fits in he's not arguing i don't think that that policy is unlawful and i don't think he's arguing maybe he's arguing that the policy might be this  might be his argument is inconsistent with the statute but out of three through on or it's not the place to do that and i don't think it is inconsistent with the policy because the policy gives gives the officer the opportunity to arrest someone and the main thing is that this policy is is discretionary every time you arrest someone you're going to detain him for a little of the still have a bail hearing that doesn't mean that everything that went before all the only other thing really that i have to to add is claim if said right at the very beginning i don't think he really meant to make a big issue of it but i just want to know did you mention the law enforcement proviso is another of of sovereign immunity which is but plaintiff did not raise that at all in his briefs before this court it was raised in the lower court and judge atlas dealt it's a it's a interesting and complex legal question the inner play between the law enforcement pre provision and the discretionary function exception the sutton case is the law of this circuit on that issue it's kind of the circuits are split on that issue but judge atlas applied to certain analysis here and held that the law enforcement proved this did not trump the discretionary function exception we think she got that right along with everything else and plaintiff did not did not raise it so i don't think the court really needs to consider it i don't want to take up one of the court we're not challenging the policy this is not the challenge contect in this case and let me clarify that please and we did spell it out in the brief but perhaps i wasn't clear during my opening argument the unlawfully arrests or totally restraints another against his or her own will so this is what we're arguing this is what we alleged in the complaint and the policy only comes into play when the government raises the discretionary function exception it's only relevant to show that there was no discretion whatsoever the policy said don't look at thirteen fifty seven eight to arrest it didn't specifically say don't look at thirteen fifty seven but this is an essence what it dead thirteen fifty seven eight two eight u s c thirteen fifty seventy two said you shall have your trial have the power to arrest when you comply with pay and you comply with be the policy is a blank policy say everybody gets arrested you don't look at eight you don't look at b everybody gets arrested yes it is true that the statute is discretionary in the sense that the officer after conducting the analysis may go one way or the other way but they don't have discretion to ignore the statute altogether it's not discretionary to ignore federal statute which is exactly what they did with that policy but again it's not the policy that we're challenging it's not the investigation that we're challenging the loyce clear in this circuit that investigative activities are usually covered under the discretionary function exception it's the arrests that were  logically follows that if the agent does not believe that the person is in the country illegally he does not have the power to arrest and again the policy is only relevant to show that there was a policy directly violating the federal statute and they had thought someone was in the country illegally oh everywhere throughout his deposition he keeps saying oh yeah i did believe him but what could i do i could if she actually did try i agree but the policy that they had in place eliminated any discretion whatsoever so again just to make sure of clear in that we're not challenging the policy we're not challenging the investigation we brought this f for unlawful for false arrest and false imprisonment in again the elements a sense fight was the arrest them lawful it was totally unlawful because the agents did not comply with the requirements of thirteen fifty seven there was no requirement in thirteen fifty seven to release or to detain but there was a requirement to analyze and they didn't do that at all that the policy did not allow them to do