detention of different for different categories of aliens during the two different stages of the process first during the limited period during which the government works to secure a final order of removal and second during the period of time the government conduct sensitive negotiations to execute that final order of removal the disagreement you junction both slow down a little bit and speak louder i will do my best ok the district court's injunction ignores congress clear intention that individuals covered by these provisions would be treated differently and instead the injunction imposes a uniform requirement of bond hearings after one hundred eighty days of detention regardless of any other factor circumstances dealing with individuals detention  days regardless of where the individual is in the process so for example somebody who has not even been through the entirety of the administrative process hasn't gotten to a final order from the immigration judge or an order from the board would be treated the same as somebody who for example is under twelve thirty one eighty two that's during the ninety day mandatory period during which an individual has to be detained and the injunction makes no difference between all of those individuals and there's a uniform requirement after that hundred ninety days to conduct a bond hearing so are you arguing that there should be a different time period depending on where an individual is in the process we think that it's inappropriate for the court to have opposed and imposed a one hundred eighty day requirement across all of these statutes what that ultimately does is take for very different statutes with very different standards and procedures and imposes the same standard on them say so you think that's wrong what should he have done to accommodate that kind of difference among the statutes think class treatment would that one hundred eighty days is not necessarily going to be the baseline for insurer when somebody becomes entitle to a bond hearing that means they can't court has to then revisit whether class treatment was appropriate at all we think that the best way to go forward is to allow these individuals to bring individual as applied challenges they can come and show that their individual facts and circumstances that can include the length of detention demonstrates that they have an interest in receiving bond otherwise we think that it creates a system that's not doesn't look anything like the one congress  congress designed the injunction established also establishes a procedure and heightened standards for those hearings that's completely different than the standard in procedures that set up in the eye and that's regulations so instead of following the standard that set forth in the regulations under two thirty six point one the district court in the injunction requires that the government bear the burden of showing that this person is not a flight risk in danger and as you set forth in the papers that causes a lot of problems especially with regard to the class of of arriving aliens where we know very little about these individuals we don't have sometimes aren't even able to verify their identities and then we're having to go in after one hundred eighty days of detention and and basically make the case to another court that we should be entitled to detain them that's it that's not the standard that congress set up congress set up a system where we were required to maintain control over our borders for the entirety of that period and not just have that expire after one hundred ninety days as a result we think that the injunction sets up a system that doesn't isn't a plausible reading of the i and a it's also fundamentally at odds with congress legitimate findings that these statutes in the way that they're drafted go towards the three governments three legitimate interest which is ensuring an individual aliens show up for their proceedings and  sure they don't commit additional crimes while there were made in the united states and that at the person at the conclusion of those proceedings they can be expeditiously removed now the court has not addressed the legal issues associated with two of the sub classes i want to start briefly with twelve thirty think with respect to the first two categories we are bound by the law of the case we have suggested just in our papers that that's not necessarily the case because we have now have a complete factual record in this case that this court can look to and decide whether it precisely because the question was one of constitutional avoidance there we're trying to the court was trying to avoid applying the statute in a way that would cause an individual circumstance to cause a due process concern as you know due process is a highly it's really hard to be trying to have a conversation with you when you're talking so fast and don't really answer the question so we're trying to explore your position all right so just take a breath and start having a conversation about this because i hundred eighty days that's the period during which the court found that there was a serious constitutional concern that those individuals are requesting two maybe three continuances on average that's accounting for a large portion of the amount of time that the government has under the statute as interpreted by this court to conduct its proceedings we think that that strongly undermines the idea that there is necessarily after one hundred eighty days a constitutional problem also we know that under twelve twenty five b the injunction is creating would  das in the court described as an unprotected soft spot unprotected spot in the nation's armor prior to the injunction twelve twenty five the subclass members those people who had never crossed been admitted into the united states never never crossed through the borders  could only be admitted through the interior through the parole process now under the injunction the government's required to release those individuals unless the government shows by clear and convincing evidence that those individuals will not be a flight risk in danger as i've already explained that that's going to present untold difficulties for the government they come in these individuals sometimes come across with fraudulent documents false passports and they were people that were having trouble identifying their identities their records now demonstrates that some of those individuals the courts concern over the potential for an arriving lawful permanent resident being treated under the statute now we've been through the discovery for process and found that the occurrence of a writing l p r is being treated under the statute as can be extraordinarily rare  think that that under the idea of applying constitutional avoidance here because the serious constitutional concern is is perhaps not so serious but also it's applying quite a fix to a very small problem with the idea under constitutional avoi effective my question specifically is on the burden of proof i had was the burden of proof issue that you're raising before us on the preliminary injunction there are opinion address that but the court did not dive into the question of whether the remedy for the twelve twenty six and the twelve twenty five the subclass has to be a clear and convincing evidence standard so we think it would be appropriate even if the court doesn't believe by our arguments that there is a you're able to read it to address the questions from the jury goes to again we think that that question was not firmly decided by the court and we think that if you have heard it in this bill the nature of the burden or the burden shifting question show there is no danger or fear or she is not a flight risk as opposed to the burden being on the government to show those things exist and the others the standard what's the is a clear convincing and so i don't think that the roger goes to court he answers that question burdens that clear and convincing so whether it's a clear and convincing standard and whether it the burden is on the government or on the alien  we've submitted extensive argument through the district court about why we think the twelve twenty six a process should govern if there is indeed going to be a shift from the mandatory detention statutes to another statute at some period of time it makes sense  if it's truly a constitutional void area truly a matter of statutory interpretation that then the statute twelve twenty six a would govern those proceedings there there would be no need to have a casa style hearing and we think that that places the burden appropriately just recently just on wednesday we had an article run in the l a times where an individual class member who was a twelve twenty six a class member i originally was denied bond under that standard have we taken judicial notice that i know your honor this was an article i just ran on wednesday  that individual you read that article i have your honor and it was interesting i read that article too and it was interesting that the person was charged under state law right but in the first paragraph  it said according to federal authorities so can you tell me the federal authorities who are who gave this information to the l a times i don't believe our office comment so i i can't tell you that your hon we really have no idea i really don't well since you brought that up i lived i was curious about that i would like i think after conference perhaps will issue an order to the government i would like to see the transcript of the hearing where the immigration judge determine that this particular sexual offender who's obligated under state law to register was deemed not dangerous to the community and not a flight risk by your department of justice immigration judge and i would also like to see what the nature of the evidence was that the government presented at that hearing and we certainly can and can respond to whatever order the court gives us but i do want to make do you know it's and she bringing this subject up do you know we know that initially the hearing was conducted under the twelve twenty six a standard the first hearing when he was taken into custody was conducted under that standard that standard places the burden on on the individual alien to prove that he is not a flight risk or a danger the guy j denied bond said that this person is not entitled to at least it was only after one hundred eighty days passed and we think and talk to the the hearing again a new under the standard under the plenary injunction which requires the government disprove by clear and convincing evidence that that individual was was released it was concluded by the immigration judge that the government had not carried the burden of establishing that that person so it was the of immigration judge's decision to release this person that's right in the article so it was your department's decision to release this person that's right your honor by congress i'm not sure that that person would have necessarily been released by anybody else that's exactly the problem that congress was faced with when they passed twelve twenty six c in the first place they were faced with evidence that individuals that congress thought should never have been released under any standard much less a standard that is actually lower than the one imposed by the system of the plenary injunction and congress made the decision that we should take that decision out of the hands of the immigration judges and make it so that there's no there's no assessment for credit for flight risk i'm wondering about the timing of that article the fact that it was released by federal authorities the information in the timing it was wednesday of this week do you think there was any object in giving that information to the l a times to influence the outcome of this proceeding i certainly have no reason to believe that your honor this was not as far as i know this was not something that anybody in our office approached that well as far as you know you may be getting another order telling us who exactly was the source for that story you're not the press and you don't have the right to protect that information i understand that your honor it certainly wasn't didn't come from and i do realize it would not be very ethical or proper and perhaps could be even criminal to have given information to the l a times to possibly influence the outcome of this hearing and understood timing was very  point in bringing this up it's really improper and i would recommend we don't even talk about it anymore well that will determine later what to do about it ok your honor we do think that if that is please do not discuss this if you can where it's not record evidence it's post the district court's decision and it's information from a newspaper or from a source who we don't know so we're going to have to talk about now because you raised it what we do about it i was hoping you wouldn't raise it brain and what was before the district court this is serious this is a very serious issue and it's an important issue and we think and you should not to base it by playing out in stuff that's in a newspaper we simply briefly on twelve thirty one post or detention statute that's one issue that this court has not addressed and roger goes to and we think that it's a pretty clear anything thirty one the one that already provides the bond hearing oh twelve thirty one is the post  one eighty two well i've got it wrong see one actually extends that the ninety day period where an individual aliens not complying with removal efforts so for example if somebody is refusing to board the plane curfews ing to make good faith efforts  to to get good travel documents that individual by statute is barred from getting getting released is that somebody that the government has a legitimate interest in continuing to detain so we think that th so i think on the question whether the burden of proof was before this court the answer is yes as a general matter you know under ninth circuit law all four side classes are clearly entitled to cause us hearings because they have all been subject to poll long and incarceration and congress did not speak to prolonged incarceration under these particular statutes that was the holding as the each of those statutes even before rodriguez to is decided so on the question whether each of these detention saturates can be read to authorize prolonged mandatory detention or prolonged detention without hearings at the answer is no under this court's law and was actually already know at the time that we argued rodriguez to in addition your honor even the government just now and in their briefing and various other places they concede that there are some prolonging detentions that give rise to serious constitutional problems in this rodriguez unself he was detained for over three years without a hearing he was eligible for cancellation of removal which he then won and instead they say oh the should be done through individual hippias petitions but as your honor explained that is not what the of constitutional avoidance requires if the statute can be read to avoid the serious constitutional problem and the problem is arising then the court's obligation is to construe it and so i think despite the fact that you see a wealth of factual information that we from a few places your honor it's first set forth actually and not are aaja a ninth circuit case from two thousand and six event that's a twelve twenty five b detainees who is by the way arriving at the border but the court construed the statute in light of the problems of returning lawful permanent residents all the way back that and so to reverse that is my opponent ask you to do you really have to go back and reverse another ajah centrally and then of course rodriguez to what i understand it agree with that there's two other sources for the one hundred ninety day rule which we think are very important in juve too which is about a twelve thirty one a class member the court holds that detention becomes prolonged because the liberty interests are profound at  hundred eighty days and actually doesn't cite not a raja just independently that makes that determination and then we also think it's highly pertinent that congress did specifically authorize prolonged detention without hearing s for six month intervals but subject to periodic review by the attorney general actually and that the deputy attorney general in the patriot act as two national security immigration detainees and they specifically referenced six months as the time period  that statute for certifications of the person remains a threat have to happen every six months so i think that's relevant to a lot of issues i think is relevant to the statutory question here it was cited in not arrived at that statute i mean it's also relevant in this topic i also have no desire to discuss it you know but when we're talking about when do we accept zero risk of recidivism you know when are we willing to say we never want judges to ever make predictive errors you know well congress authorized prolong mandatory detention for national security threats and basically said the attorney general is going to be the one deciding when that person is no longer a threat and but they didn't authorize prolonged detention without any release hearing process for other sets of people and i cool if i may interject please i'm sorry for interrupting but never got one of the questions on my mind is the burden on the burden of proof is where shifting of the burden of proof come from either in our president or i thought that said this itself that said something that supported the six month period being significant maybe i'm wrong on that but to me that wasn't the issue it seemed to me that people are going to be intent to a due process hearing after a lengthy period but at that hearing does the government have to show that they are not a danger or they are a danger or do they have to show they are not a danger let me answer the burden of proof question first and then the vitus question your honor the burden of proof issue is first put on the government in a case called to johnnie which is also a ninth circuit case it's from two thousand and five and in that case the court cited cooper v oklahoma which is a case about civil detention authority more generally and says the burden of proof is always on the government when we're talking about civil deprivations of liberty then again investing which is the case that just describing the general practice that in civil detention contacts where liberty interests are significant the government bears the burden of proof in fact if you look your honor at the there's a brief from the battle on center and in that all the national criminal defense lawyers and they describe this across a number of civil commitment and pretrial detention statutes they say it's a century the universal rule that the government bears the burden to show that the detention is necessary and this court has applied that when the government really doesn't know much about them i mean you know see in the gratian case yes yes your honor i think there's something in that argument as to the initial release process because you know the person could come here and not be very you know our case is not about that our case is only about people who have been detained for six months so at that point we're talking about people who are well into the process and member the government has to  so they do investigation they have to and you know if they're unable to do that investigation i guess this is the other point there i would say if there's a person and there are no identity documents and despite six months of investigation and a pending asylum case they still cannot figure out you know who this person is what country they're from or anything like that that's that to me is a valid basis to find a flight risk it's also a valid basis to deny asylum by the way you cannot win asylum under the ice rights law so i mean i don't see that as a serious problem i think also we have lived under this injunction for two and a half years we had data on the injunction from a year and a half a year and a half worth of data if this were a significant problem one would expect that  were a significant problem one would expect that there the government would have had you know data to show that twelve twenty five b detainees are winning release at some much higher rate than other people and there is no evidence to show that there's no evidence that they in fact that group of people are treated them any differently the other brief thing i'll say about that your honor as they say there is no discovery about the returning lawful permanent resident they didn't raise it in the district court either time  after the argument here i met a returning lawful permanent resident and put his that document into the record which is in the supplemental excerpts right they never argued if they had we would have put more you know if it is a fact that returning lawful permanent residents who get detained they're not a huge part of the class but they are there and the judge ruled i don't know if you remember my colleague mr kaufman who will be speaking in fifteen seconds if we actually argue the case about a returning lawful permanent resident was called moline in front of you your honor and that's another person he was detained for two years in the central district of california and it definitely happened the last thing i'd like to say your honor is there are three sets of undisputed facts that end you know that hearing outcomes the fact that seventy percent of the people are found eligible for release on bond by immigration judges the outcomes of the cases which on which there is no material dispute almost one in three are about one in three will win their good morning your honor is michael kaufman on behalf of petitioners with the court's permission as a counter of pallies here we would like to reserve two minutes of time for a bottle your honour's the petitioners have sought five procedural protections appro long detention bond hearings beyond that which is already required under this court's precedent two of those procedures consideration of alternatives an adequate notice the district court ordered below and because the government hasn't challenge the notice requirements here only the alternatives requirement is at issue in this appeal we the district court declined order the three additional procedures we sought consideration of length of detention periodic review and consideration of ultimate remove ability i'd like to begin by discussing w perhaps the most critical procedural protection that is consideration of alternatives to detention the district court below ordered that immigration judges should be considering alternatives and making danger in place for its determinations and  not that and that those alternatives include but are not limited to release on monetary bonds so for example all forms of supervision or electronic monitoring now this requirement flows from the well established due process honor we do have data that the government has provided on bond hearings conducted under the permanent junction that reveals in less than one percent of cases that immigration judges are ordering a class members released on alternatives a loan that is without a monetary bond and approximately ten percent of cases there or a class members release on monetary lawn and some form of alternative detention supervision or monitoring one reason why we've raised that's a surprisingly know low number in light of two well established facts in the record one is that of the eighty's proven effectiveness the government's thirty six witness eric saldana there are thirty six six witness on the topic of alternatives testified that in the san bernardino area the area in which he works the area eighty programs have been your one hundred percent success rate and it's over ninety percent in the los angeles area of responsibility overall and for that reason for due to their remarkable success rate ice has increasingly relied on the t v programs in the l a area i think another important factor here is that the characteristics of the c members at issue here make them exceptionally strong candidates for release on a t v s and just move beyond your argument changed you should yes that the immigration judges aren't giving consideration to alternative is that your position don't i think it's clear that if they are giving consideration and the numbers just happened to be low in terms of people relief are we to draw the conclusion that the judge you're not doing their job and that we have to mandate something different well to honor it is clear in some cases that judges have considered it it's in those small minority of cases where they have ordered release now this is an issue that the government appealed it was in judge how does order below i mean it's nothing before this court and we just think it's important for the court to clarify again as judge how did that this is the type of consideration that immigration judges should be taking to account in making ordinary danger and fibrous determinations i don't think the court has to do anything more than that in this case there is more than  that requirement and and further establish that it is well supported by this court's case law and it's well supported by the record evidence below that the characteristics of this of this class here we know that they have very deep family and community limited to your position are you arguing that this court should mandate that every immigration judge who conducts one of these hearings should go through the steps somehow on the record to establish that alternative the judge already had we would agree with you your honor on that point and i think judge how did at all what as well when he observed that immigration judges should already be considering alternatives so again your honor i don't think we're asking you to do much more than judge had are already done care i only mean to suggest that i think the judge had his order and his observation that alternative should be employed out immigration bond hearings are well supported by the record here and not nothing really more than that yeah i just don't understand why the immigration judges would be doing it anyway would they want their thinking they want someone should be released because they're really not a flight risk or a danger to the community why wouldn't they want to keep track of them absolutely and i think it's just another tool that immigration judges have available to themselves through ensuring cases where there may be some concern about flight risk for example that there are methods i think if there's concern about flight risk they shouldn't be released sure i think in certain cases the concern about flight risk maybe so extreme that they want to but there may be others where on let's say certain forms of monitoring or electronic bracelet that concerns about flight risk can be be addressed through those alternatives and if i may or on his just briefly i want to turn to two of the other requirements that  or at least to the statutes involved when there's the detained alien has the right to request a bond hearing and i am just wondering if once in requests a bond hearing he has that bond hearing should the six months run from the day of that bond hearing as opposed to the initial detention and similarly with the mandatory detention periods in the six months run from the end of the ninety days instead where congress is mandated detention rather from the beginning of the ninety days no your hon and i think that's because that's not how this court has counted detention links in this court's prior program attention case law for example and the cost of cases we've never precise especially in the mandatory detention area we've never precisely rolled on and so if you've had a process i mean you've had some process you have been detained without any process if you've had a bond hearing discretionary or not right i mean this is all about process it's not cases we simply asking that they get the same relief that's available to other detainees at six months in the government here has made much of the fact that if anything that's what classes into the most deserving of the best procedural protections because they have limited or no criminal history and i think it would be anomalous to deprive them of due process protections that exist for twelve twenty six detainees twelve twenty five detainees and twelve thirty one detainee is but deprived those individuals who even on the government's view are in some ways the most deserving of due process protections i would also say your honor that i think this question has been some some degree addressed by this court's case law when it has shifted detention authority to twelve twenty six a it is required voluntary and under that under twelve point six eight six month we think as a matter of statutory interpretation that that implies that all of the individual subject to detention and i thought are entitled to a bond hearing it at six months i realize i only have about twenty seconds left but i'd like to leave the last few review to ensure that that lengthy deprivation of liberty is justified by whatever grounds the government has to offer on thank you we were trying to follow your argument and make it harder all right so a number of the facts that were raised by petitioners counsel i think it bears mentioning that all of these facts are things that were disputed in the record the district court declined to make any factual findings or to resolve any of the evidentiary objections and that we made these these claims that the sick success rates on appeals are quite high that was a dispute the kind regarding the success rate of the alternatives to detention program that's question we think that this case could be decided based on the statutes being facially constitutional but to the extent that insurers counsel want to argue that the particular characteristics of their class members make it such that they're entitled to more under the constitution we think it all those facts so we just are for it for the courts the record where we've disputed those facts below with the district court and encourage the court not to rely on those in resolving a motion for summary judgment that was granted in their favor not in the government's favor also want to point out the governor at the record demonstrates the government's inability to me the clear and convincing evidence standard we've submitted the compliance documents that shows that of the of all the bond hearings that are conducted seventy percent of these we would suggest that twelve twenty six it would be the would be the best way to stablish the the procedures going forward with any remedial bond hearings this isn't this this is it set up in a manner that deals with the alternatives to detention question  naturally it's built into the system where we have the proper authority that's the immigration and customs enforcement the people that are in charge of managing that program increasing the supervision or decreasing the supervision as particular situations warrant those people have the first opportunity to make the individual lives assessment under twelve twenty six say we think that that's the correct way to do it only after that assessments made what an individual don't appeal that to an immigration judge and then i have the opportunity to kill that against the board we think that that's that's the best procedure for for going forward it also has solved the problem of the cross appeal where you're wondering when does somebody get an additional bond hearing twelve twenty six a as drafted by the by congress and i in a answers that question they answer that question is whenever an individual can show that there are changed circumstances that would bear on their ability to get released their bear on a flight fight rest in dangerousness that individual has an opportunity to have as many bond hearings as is necessary to resolve that question there's no need for the court to impose mandatory periodic reviews just basics lucidly on the length of detention all of these factors that they're trying to interpose into the bond hearings are ones that have not to do with flight risk or danger but have to do with the preliminary due process question is there a due process violation this court is answer would be answering that question already if they're ordering voluntaries that this court will be saying we've evaluated the due process factors and found that there isn't title meant to relief and the relief being a bond hearing so i think  petitioners haven't shown that there is a right under the circuits preston or under supreme court law to supreme court precedent to a right to release the right is not to release the real life right is to have a periodic and individualized review of your flight risk and dangerous twelve twenty six a provides that opportunity so we think it was improper both for the court to provide relief to the twelve twenty six a subclass as a matter of right but also for the court to impose any standards that are different from what it is that for the twelve twenty six  very briefly your honor four points the injunction only applies to people with pending cases people whom the government does not have authority to deport and that's the reason why their argument about the twelve thirty one subclass not a class member correct because you have to because you don't have a state removal that is the government and i once runs from the end of the ninety days no it runs from the day your detained day one day you are detained so long as your case is pending that is the government does not have authority to deport you until one hundred eighty days and that is a simple counting method it doesn't require any shift to analyze anything else it's just if the government can't deport you and you've been detained and can't deport you because no applies to people whom the government is trying to accident so as far as you're concerned a person who has entered this ninety day period is out of this small should we don't have to be concerned about whether they get a detention hearing or not that is correct and the reason it is correct different the things we're talking about you've got a final removal order and the government has ninety days within which to remove you putting is side non cooperation or something like that during those ninety able to remove you for whatever reason they have a final order of deportation they can't move you the ninetieth day comes that's the period where they're not they can't they're not removing you congress hasn't spoken to that period and then from there that going on you would count that prolonged detention because they have an absolute right no your no your honor that the the injunction applies to people while their cases remain pending while they're still litigating right so it starts from day one of your detention if you get a final order and there is no stay of removal ok so now the government's trying to deport you and one hundred eighty days hasn't run yet for whenever you know once that happens then you don't have a right to a hearing under the injunction anymore because now the government can deport you know the twelve thirty one class your honor are people who they filed a motion to reopen after they had a prior removal order and then they've got a stay of removal either it was granted by the immigration judge or the board or was granted by the circuit court that's the facts of g q and that set of people they no longer are in the removal period because now they have a stay of removal and they are entitled to a bond hearing after one hundred eighty days of detention we to they get a hearing in that case now i wish they did maybe that will be our next case i think they're probably entitled to it under due to already actually but that is not part of this injunction because this injunction is only about people who the government does not have present authority to remove so it's only about people who have pending cases you know there's ambiguity because final order applies to people even after you get a stay of remove all units but under the statute it's very clear if you have a stay of removal then carol for another christmas or whatever they say may just really quickly your honor it's not true that seventy percent are released seventy percent have bond set but only seventy percent of those pay it so actually less than half are released under the statistics that  the court does out opposed to requests for judicial notice so i want to make that point noted and finally they're arguing for twelve twenty six a sort of the you know don't set an automatic hearing rule just allow people to request the hearings you know and the problem with that there's two problems with that the first is detention the length the fact that you've been detained a long time that is not count as a change circumstance sufficient to justify even getting a new hearing there that judge fong this is in the excerpt at page eight thirty four it's very important if your honour's interest in this in my view he said that the fact that you've been detained a long time that's not it that's not a reason to get a new bond hearing and so this is not work it is not work just to let people request their hearings there has to be an automatic time period at least a trigger for it because you know otherwise it won't happen and and the other thing is we have a lot of evidence decorations in the records people aren't able to request and they don't speak english they don't have access to the courts for a variety of reasons that automatic rule which sets a simple rule that sets the hearing it one hundred eighty days it really makes a huge difference in terms of people's ability to access the court and at least ask at least to ask a judge for a hearing