court counsel i have two cases this morning both are illegal reentry cases that started as an ice workplace raid at mount pleasant concrete in mt pleasant iowa in the st case so  discuss the speedy trial at st and request the court adopt a ruse exception to the general rule that still the tension does not start a speedy trial clock and then i'll discuss collateral attack on the underlying removal order in his case to do it just a little more some microphones closer to thank you this is an important case because the speedy trial act is involved it's also an important case because the administrat agency in our view is not following some of the the laws and regulations that apply in these removal proceedings and ice hasn't been following those rules and regulations for a long time and those rules and regulations are designed to ensure that people in remote proceedings receive due process and a fair hearing ultimately we believe in this case we're asking the court to adopt the rules exception because the courts the federal courts in particular need to be skeptical about some of the information that is coming from administrative agencies the administrative agencies and it seems particularly prone in immigration cases are not always forthcoming with the information that they're providing to the court to go back and understand why believe why we believe there is exception was right back in may in june of two thousand and eighteen we do have to kind of put it in a bigger context and go back to what was happening in the united states at that time this workplace raid occurred on may th two thousand and eighteen at that time frankly there was chaos on the border this was the time when people were being prosecuted for illegal entry the misdemeanor there were child separations there was a a lot of information that was showing up in federal courts about what immigration was doing on the border how cameras were separated what information the government was telling to federal courts and ultimately many federal courts ended up forcing those agencies to be transparent with those court earlier in that year as well and the d o j had a memo prioritizing the prosecution of immigration crimes particularly on the border but also on the interior and then in iowa we had a relatively large scale joint operation between ice in the u s attorney's office notably as the government stated its brief the employer was the target of this criminal search warrant at mt pleasant concrete but ultimately only a bunch of the workers were ever prosecuted arrested as far as we've heard we've never got an answer how that happened but as far as the record is concerned the only people ever charged with criminal offenses from this raid were undocumented workers so based on all those factors we believe that hearing was warranted on whether this was a ruse to put mr cell sado in ice custody until the federal prosecutors had enough time to get all the indictments that they wanted  to so moving to the legal issue in the speedy trial act the government's position is that there's no exception or that it's a narrow exception so obviously if there's no rules exception then that at the end of the debate the invoking something called the root exception but is that rooted anywhere in the text of the statute or is it a judicial creation i can you explain that it's essentially a judicial creation of the the tension is just a ruse the person is practically being detained or arrested on the charges because it's a ruse to evade the act and i would note that judge judge his decision on page four he did indicate that the parties treated the rules exception as available but wanted to limit its scope to only those cases where federal officials slowly to evade the act have colluded with civil authorities so from a defense perspective how are we going to prove a ruse especially without a hearing as in this case judge garvey denied us a chance to have that hearing we started with the circumstantial evidence based on known historical facts how fast did this process occur in two thousand and eighteen on may th was the workplace raid they issued an order to mr saucedo that's called a notice to reinstate the two thousand and eight removal or so that means that at that twenty six days later june th the criminal complaint was filed and then we have sixteen days between the criminal complaint and the indictment how fast of this process occurred back in two thousand and eight in that case i country by january rd two thousand and eight so in that case it only took twelve days from removal order to physical removal from the country the bottom line on argument is that because the rule is exceptional requires a showing of collusion between the government and the civil agency and purpose and intent to have aided the speedy trial act will almost always need a hearing and so say those cases it was an error not to have a hearing on that issue to give us a chance to cross examine the government witness on what had taken so long to see if there was any delay or we could prove any collusion or intent to evade the  good question what sort of proof will be available in these cases that are alleging a collusion or an intent to evade i think in this case there was enough circumstantial evidence with the ice acting in connection at the place of the raid ice doing the notice of intent to reinstate the removal order ice and doing the filing the criminal complaint in the federal court so in this case i think there was enough at least circumstantial evidence if there was nothing other than the fact that a person was put in ice custody and then charged later with a federal offense i don't think there would be enough evidence in those cases and the  people not be detained unduly and without reason and we think the government should be forced to explain in detail when and where people are being detained locked up in jails and why that's taking so long if it reinstate a removal as of may th so he could have been removed any time after may th was there any legal requirement that even immediately well that is a good question really people are fighting to being right was there any reason that i mean i guess that is our all our ultimate answer is why did it take so long you know in general i suppose ice can hold someone for a quite a link satisfied i just wonder why i want to understand your thoughts on that but can you go back to the fundamental question of why there should be a so called russo exception at all because arrested on charges i suppose most naturally if not exclusively means criminal charges so if there haven't been any criminal charges what would be the be where what is the basis for reading th into the statute again i think just to kind of re iterated i think it really is if there is a purpose to evade the speedy trial act and we could prove that then the speedy trial act becomes meaningless in some cases if if there's always ways to use civil detention to gain more time to get an indictment i mean so really it's a fact based question in the particular case was the government parking somebody in immigration to get in terms of a statutory construction issue i am asking whether any alien has tried to raise this under the th amendment speedy trial guarantee as opposed to the statute i'm not aware of that thank you or st of all mr mysterious wasn't told about the motion to reopen the possibilities of that seeing an immigration judge even though he signed a stipulated removal order his notice to appear didn't have a date or location for the hearing and the government showed that there was a certificate of service on the stipulated request for removal and if he didn't know even which court the notice to appear was going to be filed in which he didn't because it was filed  minnesota even though it should have been an iowa case which would have been filed in omaha he would have had no way to even contact the court or opposing counsel if he had a change of heart on his stipulated remov that didn't exist from two thousand and eight so we did the best we could with the objective factors that we had at the time in two thousand and eight mr micio didn't have any criminal history and he would've been a good candidate for police court counsel mr tito is asking the court to disregard credibility determination made by the judge who actually heard from the witnesses about a conversation between those witnesses t place more than ten years ago and on that basis find the judge's factual findings clearly erroneous he's also asking the court to assume this existence of a blown conspiracy between ice and the department of just told him civilly for criminal charges despite the fact he was only held civilly for a few weeks and the lack of any actual evidence or even but to specifically articulated claims that would constitute such a conspiracy the court decline to do so and affirm the decision below i'd like to talk about the collateral challenge issue st it's important to remember here that the defendant bears the burden of meeting all three of the requirements of  st two prongs under oath by a if an alien knowingly and voluntarily waived his right to to a hearing then his failure to exhaust the district court heard testimony on that from the agents and from mr siegel and found the agent more credible and there's nothing in the record from which this court could determine that that credibility finding was clearly erroneous in fact looking at the actual documentation it's a poor the district court judges finding on this point the actual documentation shows clearly in writing that he was giving up his rights to a hearing including his rights to a search for instance voluntary departure at the hearing so it differs fundamentally from mendoza lopez and a lot of the cases cited by the defendant and that this is not a case where there was an immigration hearing and then the judge failed to advise someone of their right here the the rights advisory was and writing and the in the form in which the defendant voluntarily and knowingly i gave even if it gets to prong three fundamental unfairness that requires showing not only a due process violation but actual prejudice here there is no actual prejudice because there's for voluntary departure but statutory only eligible doesn't mean it's reasonably likely he would have got and that's the standard in the circuit is it reasonably likely that if he'd had the hearing he would have gotten leave voluntary departure need actual prejudice this court has never adopted a sufficiently flagrant exception but even if you even if you dead looking at circuits that have we're talking about extreme situations where the government is basically acted in bad faith then lied to lied to somebody to prevent them from exercising their rights again here we have the credibility determination that that didn't happen he took thoroughly  we've argued in our briefs the those aren't really due process violations but even if they were they aren't particularly flagrant you know this isn't the government acting in bad faith to deprive people of rights so even if you were inclined to that they won't require actual i'd like to move on to the speedy trial issue now of course it's understood here that it's circuit has held that a civil deportation proceeding does not trigger the speedy trial act and being held for a civil offense doesn't meet the statutory definition and because of that we would urge you not to import this judicially created doctrine from other circu between a civil and a criminal charge and until there's a criminal charge there is no criminal detention but even if you are inclined to adopt the ruse exception we would urge you to also adopt easily triggered and it requires that the defendant demonstrate the primary and exclusive purpose of the test was to hold the defendant for future criminal prosecution and as the th circuit stated  by pretending to hold someone's civil way when they're actually intending to prosecute them criminal way and if you look at the cases in other circuits where they found that there was it is pretty extreme circumstances like where someone is held for five months and and then an agent admit that they were had being held because the prosecutors needed to gather more evidence there's no evidence in the record here to suggest that there was a conspiracy there's really no reason why the prosecutor would have needed more time in this case the defendant himself is asserting that very early on the agent was aware that there had been a previous deportation and therefore that the defendant potentially could be prosecuted for illegal reentry so it's not clear why they would need to go to  the trouble of colluding on something where an indictment could have been drawn up pretty quickly there's argument apparently reflects a belief that in order to raise the issue one has to have something more than the mere mass of passage of time which is consistent with with what other courts have adopted the reason exception of don and he says argues that it is a reasonable is evidence of collusion and my question is really because i know what happens in our district i don't know what happens in your district the question is does ice officer oftentimes file are signed an affidavit supporting a criminal complaint in is it usually the same officer in our district my understanding is that that's reasonably common because the ice officer who additional originally work on the case would also have the knowledge that's pertinent to the criminal charges and so it would make sense to have that person do an affidavit on the charges so i don't believe that fact would suggest and i think it's important  originally detained just because he appeared to lack lawful status so originally it wasn't even he wasn't even being detained for illegal reentry they didn't know he had obliquely ranter it was just lack of status and it wasn't until sometime later that day they looked at the computer files and the computer files suggested he might have illegally reentered and then they sent for the a file which is a physical folder which then has to be shipped in and at some point later we don't know exactly when they would have reviewed when they know that he could be charged for illegal reentry so that process would have taken some time and it would have been until they had fully reviewed the physical file that they would venture that criminal charges were appropriate and so i think that's additional evidence that there wasn't collusion there that this was just working the process and and delay because of x reason because the prosecutor needed something something that required more time if there were those sorts of specific articulated claims then i think i hear in my might initial order there was a motion for to clarify order where the defendant asked for a hearing on the collateral attack issue and received one so although the defendant in fairness did originally ask for a hearing i think it's interesting to say that the trial court abused its discretion by not granting a hearing on an issue that even the defendant felt apparently was so clear he didn't bother to include it in this motion to clarify and in any event the judge knew all of the facts the mere fact there was a slight delay between holding him civilly and charging him criminally and even if it's true at that immigration officials very quickly learned his status that isn't enough to prove collusion so there was no reason to hold a hearing we respectfully urge the courts to affirm the district court decision thank you for your argument i think your honor the only additional point that i would like to clarify in rebuttal was our motion to clarify so initially the district court's decision denied this the trial action ground of the motion to dismiss outright and the decision really invited us to submit proof evidence on the collateral attack because it related to the voluntariness of the waiver so it was clear from the district court's decision that  the court was denying the request for the hearing and there was really nothing that we could prove on that issue the other issue with the collateral relieve the judge essentially said we would have to prove his waiver was not knowing and voluntarily entered so we requested a hearing so we could develop that issue so we do think we preserved our arguments on appeal for both of those thank you very well thank you for your argument case submitted