respondents this toward good morning may it please the court bryan ward on behalf of the government your honour's we ask this court to reverse the decision of the district court the question in this case is whether the provisions of eight u individual who has a reinstated order of removal regardless of whether they have ongoing withholding all the proceedings section one thousand two hundred and thirty one is the section that's titled and detention and removal of aliens who are ordered removed that's what section and thirty one governs and petitioner can't reasonably dispute that he's an alien that's been ordered removed he was previously placed in removal proceedings receive their removal order that no one disputes is final was removed from the united states based on that removal it the text of that provision says the removal order is reinstated from its original date and is not subject to being reopened or reviewed the island is not eligible and may not apply for any relief under this chapter and then the alien shall be removed under the prior order at any time after reentry and so there is no way under this provision which no one disputes was applied to mr razumov that he is an alien with a final removal order that falls under section  aliens when they're in the initial set of removal proceedings and it says that provision governs while a decision about whether the alien is to be removed from the united states is pending after a removal order is reinstated there's no pending decision about whether the alien is removal from the united states that decision that they are they have no entitlement to remain in the united states that they are removable is contained in the final reinstated removal order that is dated hi this is robert block you did something there that i think other courts have done and that i think is part of the issue here and that is you replace the words to be removed with removable you might not even know that you did it but you didn't do it  and i think that's part of the issue here which is if congress had used the word removable which is something that everyone understands and has used and any other places in the statute then your position would be very clear but some of the courts including the is not significant here that would be helpful to me yes your honor happy to address that so there are there are separate provisions in the i know that govern an alien when they're going through removal proceedings the initial time versus when they come back the provisions that govern how removal proceedings before an immigration judge are handled the provisions that apply there and at one thousand two hundred and twenty nine a sub three it says and less otherwise specified in this chapter a proceeding under this return to the united states the regulatory provisions provide that because that alien is not entitled to challenge their underlying removal order anyway and entitled to revisit that they are not entitled to these removal proceedings under  removed removed your honor there's no there's not a precise definition and in the statute that governs that so i guess i get it let's assume it's removed unless you tell me that there's something different is why i'm asking the question if if if the determination of whether to be removed is it something that's subject to by and in a withhold only situation someone is determining whether that person is going to be removed the word put on the plane and go a country or not because there's a problem in that particular country or another country to which the ha says doesn't need that person to be removed then isn't the withhold only proceeding proceeding and determined whether that person is to be removed you know your honor because the withholding on the proceedings st are just a country specific form of protection from remove also think about it like a separate order related to whether this individual is going to have the removal order executed to this particular country nothing that happens in those withholding only proceedings affect the underlying determination that the shall be removed from the united states the removal order there's no doubt about that i don't think anyone  s that as i understand but i guess my question is if the physical act of putting someone on a plane or a boat and having them go back to the countries in which they came in the removal or d the person being removed physically someone is going to be put on that airplane or that boat not within the scope of that language because it doesn't limit st of all it doesn't limit it has authority to immediately execute that removal order to a different country and so the shall be removed under the prior order at any time after the reentry and so it's the determination in that underlying order and in the wrist reinstatement of that order explicitly states that the determination has been made that the now we're talking about whether there might be some practical difficulty with removing them to a particular country well that doesn't take an individual out of the provisions of section one thousand two hundred and thirty one in fact that was precisely the situation that the supreme court was case and in the johm a case and in both of those cases what they had was aliens who had final removal orders but there was difficulty with either getting the country to which they were ordered removed to accept them and other difficulties in determining where they actually would where and when that x removal or it would be executed and the supreme court did not question at all that those aliens had final removal orders and under john explicitly said that once an alien it's been determined that foreign affairs interactions with foreign governments but there is this removal period under section one thousand two hundred and thirty one dollars specifically to deal with this and so it would read that removal period out of the statute to require the agency to have made placed the authority for the chest to execute that any final removal order to any country to a wide range of countries if for some reason a particular country is they can't execute congress indicated that these decisions about withholding of removal and where an individual be removed are intended to be part of the decision making process that the agency makes on anyone how do we address the reinstated removal order does not become final until a reasonable fear proceeding is completed what am i to do with that when when the trigger for all of that is the administrative finality of the order which would final order then how then can we turn around here and say it's administrative leave yes there are so i think we're talking about two different orders here so the order at issue in him and as morale is the order reinstating previous removal order so there's nothing in that case that says the underlying removal order which remains insulated from review is not final it's talking about the order on the disks on the order on the reinstatement that leads the individual reinstating the earlier order and so what that line of cases is based on is preserving even though there is no dispute in those cases and the district court acknowledges this those cases don't open any avenue under any circumstances to review the underlying remov garcia which are based on a constitutional avoidance principle and if the supreme court has said in clarke and said more recently in the jennings case that when a court is applying a constitutional avoidance reading of a statute it has to apply that constitutional avoidance reading as narrowly as necessary in order to preserve whatever the constitutional question is there's no constitutional question raised by determining that the underlying removal order the removal order that matters for purposes or at least a discussion of in the context of reaching a conclusion the court stated that the reinstated removal order does not become viable until a reasonable beer proceeding is completed i just i'm having trouble understanding how we can reconcile that with the determination yes so i so i think i think there is some language in him and his morale is that is imprecise but that that case did not raise the question here it didn't deal with detention it didn't deal with what provision governs were raised in that case and the administrative finality at issue in that case was solely related to the separate determination in the withholding only proceeding the preserving review over that there was nothing a draft or where were d h s s asked for the venue to be returned to miami which was granted over opposition and then the judge in miami at the chrome detention center we moved to return the case to new york again which was granted so really there's been no progress at all we're waiting for a hearing is next hearings in july actually so be the person entering to see what we actually do with the case or not because the b i suggest there should be a new trial on additional issues but wanted to ask you about his bond status as i understood it the district court granted the writ and ordered him released last september do i have that right yes occur in this case so he's out on bond and in new york is his present status awaiting a hearing in july on the withhold issue correct yes thank you more i don't think anyone could disagree with that anyone could reasonably disagree with that but if that more means there has to be some potential review of that order in the administrative process which i think is a fair reading of that it seems to predicate finding the regulation show that the paperwork actually shows that and then there's an execution of those findings were the reinstatement is entered and in fact if you don't even make up your claim you been departed voluntarily and your client were already at that stage with regard to your client under under an order and you will quote the prior order removal is reinstated from the original date and is not subject to being reopened or reviewed how is that not administrative finality within the department not because it will not lead or judicial review but that that that order the reinstated order is is no longer is administratively final for purposes in the chavis circuit says that if the general but we're not dealing with the general situation here we're dealing with the exception and the data from the from then meeka shows that i think it's only three thousand out of one hundred and twenty thousand cases  withholding only order that shows that particular country is not susceptible to having someone  manner but there is a new process started it is the looked at a decision on whether the petitioner is to be removed is precisely what is before the court the immigration court in withholding only proceedings now the agency argues that it's theoretically possible and in some rare cases it doesn't fact happen to persons granted withholding are removed to rd countries but that doesn't obviate the fact that the whole purpose of the withholding only proceedings is for the agency to make a decision whether the person is to be removed and that in itself demonstrates that they're still right but i'm sorry to count on and mean to interrupt you so abruptly but you say the whole purpose is to decide whether for guidance you decide where the agency's already decided that you should be removed the question is whether you can be removed are should be removed to that already turns on the ultimate identification of an appropriate country for move on it is not clear while withholding only proceedings are pending the petitioners are in fact to be removed from the united should be removed if there's an available place we've already now we're looking for somewhere to remove them to that that is correct but that is a big if there and in fact as we demonstrated that the government's own records show these individuals are for most intents and purposes ninety percent of the time permitted to remain and live in the united states because the government is not able to remove them and in fact the regulations afford them the right to employment authorization precisely because a grant of withholding is for the vast majority of the grant to remain in the united states a determination that they will not be removed and i would like to turn to one of the questions that was posed earlier with whether these are in fact two very different types of order and ministr period is that the removal period does not commence until the leader of two things and that is and ministry to be final order of removal or until after the petition for review has been filed and decided if the individual obtains a stay of removal during that petition for a view that makes clear that the removal period cannot section little two and with all three had no application here that all that we're talking about here is the application of the start of the removal period under little little one being whether the order of removal with administrative wi fi isn't that right out two further reinforces that the removal period is not commence and that's because mr radford bob is currently before the immigration judge and if he were to lose his application for withholding and then again s a he has the right as this court has already held in him then is to then file a petition for a view and so only at that point then would the subsection to come into  that demonstrates that subsection one has not even half and yet because it's either one or two so how could that be the case where where if the language means anything if some to argue that the removal period has commenced before the petition for of you can even be filed so in this case not only is there not ministry of the final but council isn't that isn't the difference because the statute also applies to those unlike your clients who aren't illegal reentry but instead are those who are applying for withhold the st time around and don't have reinstated orders isn't that exactly why some sections two and three are there no i disagree because as the supreme court made clear in fernandez vargas a reinstatement order cells can be challenged on a petition for review i understand but counsel it isn't doesn't statute apply to initial withhold petitions not not those like your client who are legal reentry it applies to all so i would agree that it does not apply to me as this court me clearing him in his morale  i certainly agree that the crux comes down to when it is a final determination but what i don't agree is that you have a final agency order at the moment the reinstatement order is signed off of when the individual is thereafter referred to the immigration court for him or her mobile proceedings because as the regulations themselves define it to forty one point eight this is an fact another exception to forty one eight d where an individual who would otherwise be subject to a reinstatement order can then apply for legal status under the car or under another statute arista so again making clear that yes in general reinstatement order leads to a summary expulsion with a final order there are exceptions and the regulations define withholding as one of these exceptions where an individual is then transferred to be immigration court which i get and comports with the definition of what a final action is in the spring court is this the culmination pending and that is correct but the one you probably know this since it's your department the one rd circuit is on another question this related to the question before us but is not the same question before notwithstanding there is a  understand that rather than the it'll be completely briefed and ready for all in order contents if they put it on conference before the court adjourned for the summer and then there's no way that they're going to hear and decide it before that if they decide if they grant certainly would be very late term early in the next term but i'm asking you given that scenario should we hold this case and i mean as suppose we rule in your favor pinta doubt if this clear that we would then say ok you can revoke his bond even though he will i'm certain file for honor because i've i believe will take some time and certainly the if the supreme court grants or the case won't be argued and decided by the supreme court any time in the near future and because of the risk of this issue in this particular case moving out over that time period if his withholding only proceedings conclude and it's no longer an issue of an individual with ongoing withholding on the proceedings i think that holding this case in advance to wait for the supreme court would risk losing the opportunity to make a decision at all that will lose an opportunity to decide it do it in terms of the russia and decide it even those french court may ultimately will lose an opportunity to not to decide because i mean  ninety let me see if i can look that i don't have that i thought the about i thought it was five hundred and eighty nine days little less than eighteen i about right in that regard that sounds about right your honor and also requires the government to have an opportunity to robot that evidence and so that record because of this is decided on statutory grounds for the district court wasn't developed and obviously the petitioner is not currently detained and so if the co order to the extent it found that the district that the immigration judge had authority to hold a bond hearing for and so it would i believe by operation of turning over that authority wipe out the immigration judges  holding that that seems appropriate your honor or not that there is a bond reversed on the legal issue but not the actual  well i don't know that the court would need to weigh in on the bond one way or the other because the bond that i raised the question was i thought the position of the united states was that not only should we again my understanding is that the district court ordered that the immigration judge would have authority to consider bond and that the immigration judge did and granted him upon and and so we're asking to vacate the order from the district court that  dollars but not vacate the order that leads to the bond hearing and it's released so that he remains released then that would simply move out that aspect of the case