all united states court of appeals for the st circuit is now in session all persons having any this has before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court or please the court since the inception of this case the government has advanced the proposition that the defendants have advanced the proposition that this case is about immigration jurisdiction and deportation and in fact for a period it was will ever not today today this is a case about a contract dispute pure and simple it is about whether or not renate levy is entitled to an opportunity to prove that he has a valid agreement enforceable a law which exists between him and the united states government from the time he entered the united states at the texas border in two thousand and two he had only a few minutes before he was apprehended and a few more minutes before he was solicited recruited him and listed as a confidential informant for federal law enforcement authorities he was promised if he performs this work which carries no small wish he would be allowed to stay in the united states he would be given a work authorization a driver's license  social security number and the ability to build a future except of the government's offer and he performed with distinction for nine years providing information and intelligence on criminal activity for the drug enforcement administration for ice for customs and border patrol the defense intelligence agency and the f b i he began primarily in the human trafficking arena but because he was skilled at this sort of work he was able to gain the trust of criminal elements and eventually the subjects that his confidential informant activities covered ranged from bogus marriages and only documents to narco trafficking and even threats against the united states in the form of terrorism mr phillippi kept his promise and he acted and conducted himself with distinction it's interesting to me that all he's before the court today for is to ask this court for an opportunity to go in and litigate this contract dispute we're not here to argue about section one thousand two hundred and fifty two or the real i d act he had an agreement you kept his side of the government united states but what it actually did was it up ended immigration enforcement policy under which for not have phillippi had lived through fifteen years had built his life on and had relied upon with the consent and they asked and of the united states government then suddenly he was ordered out of the country it sixty one dollars in the meantime he had relied on the government's conduct his wife and daughter were allowed to enter the country he worked and helped build a business his contributions to the business actually created jobs for americans he prospered educated his daughter who is now a u s citizen and was employed as an evidence analyst for the united states secret service part of the h s the very department now trying to deport her dad even bought a home and he lived as he dreamed he could live as an american student citizen suddenly he was ordered to leave and the promises that were made to him were absolutely gone the case hinges on two words really arising from the case the district court when the original complaint was filed it contained five accounts for of which related to immigration matters one of which is this remaining contract claim but this court has constraints that the aguilar decision that was rendered by this court in two thousand and seven it cut back on the breath in fact the court went so far as to say it was not going to endorse a sprawling construction of and fifty three and the court should after good reason it said if you arising from criteria cannot be read to swallow all claims that might somehow touch upon or be traced to government efforts to remove and when this court also excludes from the arising from criteria quote claims that are independent or wholly collateral to the removal process but counsel in this case isn't the claimed breach precisely that that the government wanted to remove him in attempted to do so that is exactly a bull's eye point when the government of the united states made the deal with renato philippe and said if you do these things for us which are dangerous and which we want then you can stay at that point the government's ability to proceed with a removal order evaporated they have banned it they traded the removal of this immigrant for his services and then suddenly and sixty eight came out it said that anybody who had an outstanding removal order would be removed immediately and that's why we're not all got the word buy a ticket and get out within the next thirty days however the government did not have the authority or the right to assert the removal order because it gave up the removal order in two thousand and two when we're not across the river in or of the united states and that is precisely our point the fact of the r understanding why but you just gave as your answer isn't a problem rather than a solution to the question that was that because what you're suggesting is that the only way in which the reason is that the the one thousand two hundred and fifty two quote restriction on jurisdiction says that people who are challenging here a move order cannot go into court and do it on a direct assault  that's not what we're saying we're saying fine this court did uphold the dismissal of pounds one through four count five is a contract claim which is independent of any removal order imagine if mr filippi instead of bringing based on immigration law had brought one single count and one alone that the government made a deal and then they breached the deal the government could then not come in in his shirt one thousand two hundred and fifty two jurisdictional bars in a contract like a case of whole cloth so the fact that this is an independent cause of action unrelated to immigration is same as any citizen who makes a deal with the government and the government breaches it the immigration laws of the united states don't come into force in fact and further the government's position of mischief we could have races during the administrative process in the immigration system just does not stand up because the immigration courts do not have the authority to regulate or of those claims and show it's a plain and simple contract claim i think it could be alleged bad faith action on the part of the governor could be brought perhaps under the federal tort claims act but that is responsibility if the court grants us the relief we're seeking which is a revenge of the district court so that the contract claim can be properly going to get it he's going to have to overcome the twelve emotions he's going to have to establish change and that's his burden but he does have the right to go in and do it and that goes a long way back in our jurisprudence or goes all the way back to marbury vs mountain which says every right when withheld must have a remedy and every injury is proper redress do but we're not here today to ask for equitable relief i think the court could very easily instruct the government to grant parole to this particular person which means allowing term in the united states they could recommend people who serve as confidential informants for the government it only requires a united states attorney or a federal official to sign off and bang boom mr filippi remains here with his grandchild and his family  if you request that that relief yes or we have repeatedly only a small number are granted they're not popular in the law enforcement community but that is the easy solution to this to this problem i note that mr process we do have on our litigation team immigration lawyers for one million with it who have pressed this request forward on to the government but not with any success now here this is clear have the power to order such a thing believe show your honor but i don't want to stick my neck that far out on to the chopping block without having researched every procession but i believe this court could say that that was at least an appropriate solution language such as that in a decision from his court or judgment i think would be compelling to the defendants in the case and with that your honor i think the court very much for the opportunity to stand before this court i actually have a magnitude at one further question for you you mentioned that the claim that you're bringing now is a contract claim and could not have been brought in the ordinary removal proceedings in your view that structure is the so that means you're not also bri of due process violation based on the contractual on this is that right i believe that our due process claims have been dismissed by this court and we have not shot review of that but you're not contending that there was a due process violation in consequence of the violation of the contract you know sure we have not made that allegation in this particular petition for rehearing but one thing i don't understand is since due process violations  standard defense in removal proceedings i don't understand why that argument was not made well because that could have been made in the removal proceeding and i don't understand why counsel did not make it in all of the concentrated on immigration law and i'm not sure that anyone identified the contract issues it was raised at one of mr philip these hearings and the the judge the immigration judge simply noted  just as it did initially and the district court was right to dismiss this complaint and you know people were hearing a lot from plaintiffs counsel during argument is a lot of things that did not appear in the complaint we're hearing about the tucker act we're hearing about as these as again this is a point we made in our briefing none of these provisions appear in the complaint as a basis for jurisdiction and this is not withstanding the fact that plaintiff was actually offered numerous times to spell out the jurisdiction actually is the jurisdictional basis for untracked claim plaintiff has of course the the burden to show that the district court has subject matter jurisdiction and what i guess i'm hearing from you now is that well let's just deal with the  fifty two problem and you know if i'm given the opportunity i'll come up with something when i get back to the district court but of course that's not how it works against the obligation to identify a basis for such a matter jurisdiction throughout the whole can i just set can i just set ask one question because it might help you frame how how you describe what happened and what you would like to see happen in the future i want to tell you what my problem with the cases my problem with the case is is that there's been an ongoing allegation that the government did not cut square corners and i have yet to see the government deny that allegation and so i don't know what the government's view of that is whether it feels it is obligated to live up to its promises whether it's thinks the promises were never made whether it's just trying to avoid litigating that can you but i just want to tell you what's bothering me about the case is that's obviously something that you would get into if there weren't jurisdictional issues so it's you know it's not something that we delved into and you know i would also say that that's something that even if it could have been raised  immigration judge it certainly could have been raised at the p r i level my understanding just answer your question your honor my understanding is what whitely happened i haven't spoken to anyone who knows anything about what  that was extremely useful for the government in various areas of law enforcement is that adult what i don't know that we out any human that's not in the record what's in the record is a place of quotes from an immigration judge decision and that's that's all i see in terms of establishing the facts that he alleged are true he quotes from an immigration judge decision because he raised the same claims before the immigration court and the immigration court found that they were not sufficient to merit persecution so the immigration judge the immigration judge credit it is his allegations before the immigration court and said even if all of these things are true he doesn't respect your desire to stand your answer the judge no actually you asked followup questions that a that i should have asked on when you say the district court dismissed the case before you really had a chance to get into any of that but that doesn't prevent the government when it's when it's has information that might suggest that there's an injustice here that it hasn't cut square corners in the past and i'm not making the accusation i certainly don't know what the facts are is there no obligation to look into that you're not from what i did look into that and from what i was told that it's likely was was an officer i mean i don't i don't i didn't find anything so you really confirm or deny the numerous allegations he makes about working for the government for nine years what what i was told your honor was that what he was likely told by officers in two thousand two is that you would be permitted to out of work authorization and he would be permitted to be free from custody during the pendency of is withholding only outpatient so recall that  plaintiff came in and was subject to a reinstated order removal and so for for nine years basically he was waiting for his case to go before the immigration the immigration court on withholding on united states if you were an informant for all of that never with immigration judges account of what happened was true you have a representation to us about whether there would be any after the united states are granted when you said you don't even know if one's pending or if it turned out one were pending and that was quite likely to be granted there would be no need for us to decide the jurisdictional question that would take care of the case so why wouldn't we just wait and you are again even if he was an informant the question before this court is whether he went about proceeding these with these claims in the correct way and i don't think there's any question that he did not i mean i just can't it's a sympathetic a counsel i would like to make a suggestion and i don't want you to feel that you're under any sort of pressure to go along with the suggestion i would just like to know your  given that the concerns that have been raised here and the possibility that that an s p some might be available on the possibility that there might be a s reopening option available or or something like that who would like us to hold this appeal in abeyance for a period of time to give you a chance to explore that perhaps explore it with counsel on the other side it's entirely up to you we can come out with our decision in the regular course but i think based on the questions that have been asked we'd certainly be willing to hold the case in abeyance to give you a chance to talk with be happy to get in the pants so that we can see what the status is of the s b c and maybe update our bruce just to know how that may change the case or change the position of the government i don't know if i mean counsel at his word but if it turns out he's mistaken in some sense that it has not been filed then you know i don't know that it makes sense to drag this out and you further you know he's well that i'll take that as we'll hold on to the case for a period of time you tell me how much time you would like in also i think again i'm not pressing you there may be other opportunities to make sure that the government has cut square corners here where if it hasn't that it is it is willing to rest on the facts not coming to light i mean we don't we don't need to  details i just need to know how much time you would like that sixty days work all right i will check with the other side when he comes back for rebuttal are there additional questions from the court bush your honor is correct that we can certainly breathe new life into it and we certainly will beginning this afternoon but i would like to add that your honor was correct  is moot i will also suggest in response to chief judge howard suggestion that you're not a fool if he was indeed an informant he kept very detailed records in a notebook he has identified for me the names of the federal agents who are involved in his recruitment and solicitation who manage him in various areas of law enforcement and i will be perfectly delighted with some kind of a protective order to protect mr filippi safety to share these with counsel for the government in their entirety visa would not only moot the case it will restore this man to his family and to his well deserved and well earned place as a productive member of our society i think the court very much for its time this morning questions from the judges thank you thank you counsel this session of the honorable united states court of appeals the stout recess until the next session of the court god the united states of america and this our court counsel you may now disconnect from the meeting