morning your honour's in may please the court sergio starkly for the respondent at issue in this case is the proper interpretation of the secretary of homeland security's discretionary authority under eight u s c twelve twenty six say so the tane an alien pending a decision on whether that allen is to be removed from the united states in ordering but this release before the final removal decision had been made the district court misapplied and seemingly ignored supreme court precedent to import a reasonable this requirement into twelve twenty six say that does not exist nor is it reflected in the statutory text the district court adoption of the reasoning contain to twelve thirty one a six again that's post order we're talking preorder but it did so because it found ambiguity in that statutory phrase in congress's authorization to allow the government to quote may continue to can make continue to feign certain aliens after the initial ninety day removal period or council twelve twenty six has made two or three times without me looking very hard yes it does or why doesn't it apply well supreme court case apply right your honor well being the first and most obvious distinction is that the supreme court relied not only on the ambiguity of the phrase may continue to detain but in the complete absence of any other limit on the government's attention authority under twelve thirty one a six days or any limit here i don't see any limit just looking at twelve twenty six there's no periodic review right there's to help me for twenty six yards or for sex yes or on well as reflected in the supreme court's ascending the station in jennings viewed rodriguez twelve twenty six detention does have a definite end point and that is the issuance of a final order of removal right and there's no time limit on that no your honor ther is not it time limit but the distinction to be made by this court is in zavvi das we had the threat of indefinite detention and again he was rooted in the ambiguity of the phrase may continue to detain without any explicit end point and a fact specific application to that particular alien in that the government had attempted to remove mr dudley to free different countries germany his home country multiple interpretations and congress can or of the courts can avoid that interpretation that raises a serious constitutional concern and adopt an alternative plausible interpretation but again that the terminating point in twelve twenty six a which is at the end of the but decision the period pending a decision that's sufficient to satisfy due process concerns yes honor and in addition to the review that's allowed under the bond proceedings but again this record applies and adopts the reasoning of which we argue  especially when read in light of the supreme court's recent decision in jenning v drug which struck down the ninth circuit for exactly this type of statutory reinvention and this case reading a reasonable this when the court can give a plausible interpretation of the statutory language and again the reading here is not plausible there's nothing in twelve twenty six say that even remotely suggests that some arbitrary reasonable time limit is the real and point to the government's authority again the statute expressly has an endpoint and it is not with a district court seemingly important the district court likewise err to the extent of concluding that the mere length of petitioners detention violated just due process rights the court here failed to account for the government's legitimate continuing interest in the tainting petition under twelve twenty six the  purpose of pre ordered tension is to insure against flight ahead of the removal decision and protection of the community against danger petition or the petitioners attention continues to bury reasonable relation to language in twelve twenty six no prince and that mandates that the government on suspicion or evidence of terrorist activity detain the alien under that subsection and there is certainly nothing honor ok but there's there's nothing that mandates or that prevents the government based on the facts and circumstances of any particular detention from detaining an alien under the secretary's discretionary authority under twelve twenty six brand say there's simply no mandate from congress that you mean if they're worse they get a hearing and if they're less of a danger they don't get a theory right that's what you're saying well the discretionary authority they parents and they get in the national mom determination and then as of right they may petition the judge the immigration judge for a redetermination and they are entitled to an other bond hearing any time they can demonstrate  interest that you mention prevention of flight in protection of community and national security what impact or relevance would those factors have in determining what is an unreasonable time one of the words if we did if we had a reasonable to standard what impact with those factors have on that determination well as to that the length of time your honor that's a little difficult to say because that involves an analysis of the proceedings the underlying proceedings which i'm happy to go into but or protection against the community those are the the recognized purposes for preordered detention of the twelve point six say and we have evidence here as a result of the bond hearings that mr riley has failed to prove that he is not a danger to the community therefore expression sas find the terms of the fourth twenty six a as for the time your honor you have to take a look at what happened in the underlying proceedings and we believe that the district court  significantly in ordering mr ali's release without considering his litigation strategy and without considering the government's conduct in pursuing the litigation we have here for example a expressed finding by the immigration judge that mr ali had knowingly pursued a frivolous claim which on review of the decision occupy the majority of the litigation after the immigration judge indicated that he was willing to far was inclined to find mr ali removable and in addition your honor the government has recently prosecuted this case we would suggest that in the absence of dilatory conduct or obstructive tactics by the government the time that it takes to get to a certain point in proceedings is simply the time it takes to get close to that point in any given proceedings because this even if it on its face seems to be a prolonged attention we can also say with confidence that when congress authorized detention under twelve twenty six and it's surely contemplated the standards the standard procedures that come with litigation and aliens have a substantial influence in that particular area they are intitled and this is not at issue but they are entitle to call witnesses present evidence cross examine seek counsel at their own discretion and seek the discretionary relief ended more or do more i don't know which it is but that supreme court case the supreme court says an appeal typically adds five months to determine you know the supreme court says that in that case yes in the majority opinion they do so he appealed the removal order on january becomes quote on reasonable courts apply effects most if it balancing test and the remedy should they find that the detention has exceeded reasonable expectations is to order a  and twelve twenty six a has those hearings built into the stance you know what one quick point to be sure i'm following you even though he twelve twenty six he says no judicial review the government knowledge is hey b s is a sorry did you say he was a citizen no unlike many citizens oh i'm sorry unlike many non citizens i'm not sure if i saw that correctly i apologize around mr all these immigration cases complex and has been delayed by many constitutional ground under the statutory ground judge doty relied upon the reasonable standard that must be read into twelve twenty six a i understand that but what analysis did he do that th proves to us that eighteen months is itself on reasonable so in his opinion the judge noted that the length of his detention is far longer than the length the anticipated in in typical cases he cited to both out of the  michigan court and the guerrero sanchez decision out of the third circuit that also held that there are limits based on the detention the length of the tension while also considering all the relevant factors that we br and cited in our in our silence of the court jester would that be an objective standard or would it be based on the amount of time it actually takes in the real world to complete one of these precise i think it would be a fact specific standard to each individual case that detention in some cases may be longer than in other cases there is not a bright line rule that says the tension you know at six months or eight months is inappropriate if there is a bright line standard judge doty found that however whatever that standard is eighteen months is well beyond that standard he also noted that the government had not submitted their interests there was no allegations of flight risk by mr ali until filed to this court and the government failed to present any evidence of dangerousness to the court so judge doty didn't have much to weigh against he had the argument presented by mr ali and then the government chose to submit only  purposes but just to inform the district court of the immigration courts proceedings below so they had an opportunity but chose not to present evidence of dangerousness or flight risk to the lower court judge  also noted that r r i would also note that the jennings court has reinforced the reasonable snus standard that was relied upon and ins and vitus detention under twelve thirty one eighty six uses the same language but detention under twelve twenty six uses the district court in michigan specifically dealing with iraqi a b s petitioners made a similar finding as to judge doty and the third circuit in guerrero sanchez held that there is no substantial distinction between the liberty interest of aliens detained under tall twenty six a and twelve thirty one a six because regardless of the stage of the proceedings the same import interest is at stake freedom from prolonged detention what about the textual difference between twelve twenty six a and the other statute that your opposing counsel brought up because there is a decisions while there is a limit there is a there will be an end date under twelve twenty six a that is not the only analysis there there can still be  us language that dent tension may continue for a constitutionally prohibited period of time that requires the lower courts as this third circuit has said to review statutes similarily and only permit detention when it is reasonable under reasonable in this period standard based on the quick case law and the more judge doty it was correct to find that reasonable stand standard additionally fayed found that the constitution's due process requirements protected mr ali as well in his decision the supreme court has required that civil detention be narrowly tailored and that there should be  individualized procedures to protect against prolonged detention the due process clause protects mr all these freedoms he has a strong in liberty interest in denying his right to an individual who's detained under discussion grounds would be a significant departure from supreme court and other circuit court opinions protecting the liberty interest rights in the immigration detention let me ask you this context yes do you think that the jennings decision might indicate that the supreme court would be satisfied here with the initial on procedure know how utterly sufficient no and the genuine  process but with that said the constitutional rights of mr ali are not dependent on the procedural protections that the executive branch has given him rather whether his imprisonment is lawful under the due process and that must be reviewed at all stages of his confinement at a certain point due process is going to require his release judge doty found that happened before at the eighteen month mark additionally i would point out that a bond hearing through the executive has significant procedural failures that harm mr ali requiring first at the burden of proof be placed on mr ali to prove that he is not a danger instead all civil detention case law has required that the burden of proof on dangerousness be placed on the government in prolonged detention cases the bond hearing places that squarely on mr ali who is in a in a a tough position to fight it as he's jailed he's lacks english skills makes it harder for him to present evidence to support his position  process jurisprudence has always required the reviewing court to consider the constitutionality of the length of the tension as well immigration judges are prohibited from making constitutional decisions so the immigration judge would if this case was kick back to him on a bond hearing would still be not permitted to consider the length of detention as a potential factor in mr all these case  i would point out that the appointment limits the limits that bond hearing to not considering you said at all the link of time i'm sorry yes what does that what prevents it so the if i understand your question on the immigration court the judges the immigration court our executive officer is going to go they are not allowed to make constitutional arguments or considerations but by the be i as ordered that we cited that case in our brief but i'm asking a question  you acted like they couldn't take the period of time they had been in they kinda counted all i heard you say and that yes i'm saying they can't consider the length of time as to be violet's of of a due process or oh i get that yes but i you act like they couldn't even hardly knowledge or state it or think about it well as a practical matter that's a common problem yes i mean they so what are their limits all are there are limits rules on the bond hearing yes that's a better question now ok not that i know of has there been a bond hearing in this case yes there was ok when was the last bond hearing september two thousand and seventeen thank you ok it was at the initial bond hearing yes it was ok there hasn't been another one that's what i was correct your note in another opinion of judge dodi's that we cited to in our initial complaint we cited that judge dodi had also ordered the release of another alien that judge would have on a danger to society because of a drunk driving conviction  there is concern by his legal immigration legal team that judge would would find him dangerousness without much consideration of his imposes limitations on detention under twelve twenty six c for criminal aliens the district court noted the parties could hardly argue otherwise the supreme court has long recognized due process protects aliens present in the united states including th subject to removal and quoting the supreme court it says due process applies to all persons within the united states including aliens whether their presence here is lawful lawful temporary or permanent and in that case mr moose a was detained for fourteen months and had his hate his court case granted the other case jamal a would occur similar issue but it was a different statute it was a twelve twenty five b it was an arriving alien statu and the court there again noted that they have due process protections but the court also noted that arriving alien has less due process protections than a criminal alien under twelve twenty six c now after nineteen months of detention they still ordered and granted opinion to support his opinion judge doty reviewed all evidence properly before him and granted the hey vs why should even for judge jodi we have to remain so he looks at is it consider that the court itself this court itself cannot consider that so we would not object to a rebound on those grounds that said you know that there is an issue of fairness in court proceedings  pellets shows their little great litigation strategy they chose not to provide this evidence that they could have provided at any time they chose not to so that would be the general concern about that but in fairness counsel there was no procedure in place requiring it reasonable to review so is that we're actors well i would your point is well taken your honor but i would argue against that i think you know at a minimum when we filed our hay b s and we set out the law in our complaint in our brief appellate was noted was put on notice of what the law required we have quoted several decisions from the district courts of minnesota including judge doty about you know the burden of proof to find dangerousness and risk of flight to be on the the on the government in this case so they were placed on notice they chose not to now again we don't actually have any strong objections to that other than the general fairness of the hearings we are very confident that if this evidentiary hearing was conducted in front of judge doty we would  would be victorious the the evidence that he's a terrorist is now there's not been an evidentiary hearing to this point right to try to on the paper so to speak yes yes that's that's correct no it's my time is up on last there's further questions thank you your honor sir this court may not review the merits of the immigration judges upon this issue that's precluded under twelve twenty six there is no jurisdiction what's important except a b s review well you're out of that but he doesn't challenge a there's no statutory challenge to the bond hearing there is no challenge that he was deprived of any procedural protections at the bond hearing what's important for this court to understand or to know is that the decision the fact that the i j a decision in this case had found that he had failed to present evidence that he was not a danger to the community and in regards to evidence presented if your honour's cared to inquire of course we have the greg declaration which is submitted as part of our brief the schrieber declaration we did not submit to this court as part of our merits brief we submitted it in support of our motion the motion to stay pending appeal because under a motion to stay the court is allowed to consider the dangerousness of the particular individual were he to be released from detention pending a decision by this court so we did not submit it on the merits now now are you are you trying to draw a big distinction there doesn't think at the end that's against you i think they in the end that's bad for you don't you what schrieber your axe to be before this court that's one reason we did it there is clearly a distinction between a motion to stay where we need to argue that this particular alien can needs to be continued to be detained pending in the situation by this court versus the merits of this particular appeal because i go back to my earlier point the immigration the merits of the immigration judges bond termination is not properly before this court that's a discretionary decision which is beyond the reach and i invite the court to compare the treatment declaration with special agent greg declaration you'll find that the information is largely if not almost exclusively the same there was an ample amount of evidence presented to the immigration judge by the f b i and by ice that this individual poses a danger to national security d mr ali makes repeated references to a violation of the process if there is prologue the tension but that's not the standard the standard is indefinite detention is recognized by the court and for the reasons i articulated based on the text of twelve twenty six a and the procedural posture of this particular case there is no threat of indefinite detention allowing either judge doty or any other court to read in an implication twelve twenty six and a or to order release when there's been no removal we so it's not indefinite threat of indefinite or permanent the tension that the alien in zavvi does faced here we have a process proceeding we have an immigration judge's decision which is thorough and detailed in the extreme we have an immediate appeal by the alien we have consideration by the board it it's simply the reasonable progression of any aliens case and this is where we are so in some your orders we believe i see my time is up but i will say that we request that the order be vacated reversed and remanded to the district court with instructions to deny mr ali ceviche petition and enter judgment for the responde