was at least for me we probably don't need to argue the points we made in the st case but we can focus on the unique aspects of this case certainly that was going to be my st question your honor yes i think it makes sense to just start off by talking about the differences between these two cases the st one being the procedural posture martina's panos we are talking about an appeal for a final decision of the district court whereas in all of mine we were talking about a preliminary injunction so whereas in all  injunction factors but that's not the case here the classes were also slightly different between the two martinez bongos would be part of the all them on class where it not for the fact that it was certified  encompasses not just individuals with reinstated removal orders so individuals typically who have been put in withholding only proceedings it also includes a slightly larger group of individuals who have a collateral challenge to that remov individuals who have a pending motion to reopen their removal order before the immigration judge or the board of immigration appeals or who are seeking judicial review of it denied a motion to reopen so the primary difference is one final difference i guess i would note is that that's correct and i would note your honor just to go back to something that was discussed briefly in the last case the government does not agree that that is obvious and do both require some sort of determination at six months because that's not what's obvious requires that's that's not what the prime court all the supreme court and i would just went on to kind of explain in a little framework for that and to say that you know generally speaking there's a six month period where there's a presumption that that's reasonable because the government needs some time to  removal but that's merely a presumption an alien can rebut that presumption well before six months and even after six months it is quite possible and indeed frequently happens that there is still no there is yet there is still a significant likelihood of removal in the reasonably foreseeable future so there's nothing magic or special about six months under those of a dozen analysis and that gets into actually and one thing that i would like to touch on we didn't really get get time in the in the last case is the petitions so that's what what an individual would do to assert there's obvious claim and i think separate and apart from those two being in conflict in the abstract if we think of how they'd actually be applied in the real world i think that conflict becomes even clearer because we could envision would be situations where the two cases and their analysis would come to contradictory conclusions about the same individual with respect to the government's authority to detain so if we imagine an individual who there is a significant likel in the reasonably foreseeable future that's just clear we remove people to that country all the time and there's nothing there's nothing particular stopping this individual we just haven't been able to do it yet that would us would say ok great to do when you have two statutes or two interpretations of the statute that are not consistent and i would also suggest we could reverse that hypothetical so we have an individual for home there is just no slack if it's a country that the government hasn't removed  to in many years so so i think it would be clear that a district court judge could conclude there's just no there's no likelihood there but who nonetheless in a bond hearing before an immigration judge under deals could see that this person is a lengthy criminal history perhaps as a lengthy history of failing to appear for proceedings criminal court proceedings immigration court proceedings and who therefore would clearly be a flight risk and or a danger to the community and would have the same conflict and reversed where exactly just would say well because there's no likelihood of removal you can't detain i'm beginning to question my judgment i put it this way that is how the district court in this particular case interpreted do if an extended due to this particular situation and my point is that separate and apart from whether they were occurring  the question of well designed it does leave the door open to perhaps there being multiple different restraints to restraints if we just argue and if we believe of time just logistically that the government will need to get removal in order and actually remove the person and the jennings court and that's why this i just court said six months is presumptively reasonable but i would add again that's just a presumption an alien can rebut that much sooner but i  thought the premise of the question was if you lose the st americans all of those then you wouldn't have that argument available in this case anymore so in this case would you be challenging the periodic of the one hundred and eighty dollars days thereafter or part of of this injunction as an impermissible extension of do we would your honor but but again from the government's perspective our position is that the bigger key thing here is that part the key thing here is that the situation is has changed and we've had the supreme court weigh n in a way that they were not able to after do if and they have clarified how they can and works and they've clarified that merely spotting an ambiguity in the statute and then spotting a potential constitutional problem doesn't give the district court or an appeals court for that matter permission to just start rewriting the statute and layering in procedural requirements without any statutory foundation  made the point brilliantly in your st argument but but the reality is if we don't find the supreme court has abrogated anything to the degree necessary to overrule it by virtue of miller  versus what would you want us to do we can't just you know rule as a panel of three what would what would you have was do i don't like the premise of the question your honor yes i certainly under that hypothetical where where the court has rejected all of my warnings about their reconcile ability with knowledge that yes that would that would probably require going on banker or perhaps seeking seeking certain not that i'm authorized to make any decision about that it's well above my pay grade but yes we do concede that but again though i think one way of looking at it is not just the question of  how does it do for surviving light of jennings but how can this court not violate jennings if it continues to follow do and that's what we're talking about here from the government's perspective of you know jennings has already addressed exactly the question that doof addressed which is when you have may detain discretionary language it's not like the other two statutes that were shall that were mandatory detention that jennings said those you just don't get to do the canon at all because they're not ambiguous but when you have jennings which directly addressed discretionary may detain language and directly address the question of can it be plausibly can that be plausibly interpreted to require bond hearings and that answer was no quite clearly  you know jennings says that in doing so in the th circuit layered on procedural protections beyond hearings burden of proof etc without any arguable statutory foundation and that's a quote and i think it's very difficult for th asted that really held up and clark as this paragon of the proper application of the canon of constitutional avoidance in contrast to how the th circuit had done it in rodriguez so i think again the that wasn't the legal question before them but secondly it isn't then why is it before us in the sense of being a compelling argument that it's overruled because as i said and this goes back to the miller gammy and the  and thirty one i six the supreme court in jennings did talk about how do you apply the canon of constitutional avoidance and unfortunately for us even more specifically how do you apply it in the context of immigration detention statutes and even more specifically for us in the context of defeat your argument that forced the judge's decision should views which should survive this record strike that down no and i would agree with what i think was the court's implication to the questions two opposing counsel that you have does not necessarily require those periodic hearings but i do not agree that the supreme court's holding in tins vs roe greta's struck down that those periodic supreme court did not just focus on the statute and one thousand two hundred and twenty six say but instead pointed to the implementing regulations as well it said the court of appeals ordered the government to provide procedural protections that go well beyond the initial bond hearings established by existing regulations because it's important to note that twenty six a likewise does not make reference to a bond hearing it's only the implementing regulations that provide that right subsections two dollars and three dollars so the difference there with those regulations is that they allow that custody determination to be made by the ice the fischel instead of an individual sorry instead of an independent decision maker or a neutral arbiter as this court required and do so the the disagreement is over who should conduct those periodic huskey to from nations as the regulations make clear that you get that six order that six month determination and then at a minimum every year thereafter but no sooner than every three months so what which of our cases would you point to to support the proposition there should periodic hearing after the initial one so i would point to this chords analysis of the original because you determination and you at the six month where it talks about where you have such a here that the constitution may well preclude granting in an administrative body under review or more authority to make determinations implicating fundamental rights and quote again supporting the idea that there must be an primarily i know you may want to make that argument but that's that's a constitutional argument that that is also a constitutional argument but the district court granted our claims for a leaf on his interpretation of the statute applying the canon of constitutional avoidance and did not address the constitutional arguments and applying that cannon he was authorized to make a determination just as this court made in june that that was the determination in order to avoid those serious constitutional concerns should be made by a neutral decision maker and i think that's a nationally relevant for this class for individuals who are in withholding on proceedings and that's because not not are they only subject to prolong detention but they have been placed in proceedings because for every one of them an asylum officer or an immigration judge has determined they have a reasonable fear that evening setting aside the appeal of the right to administrative appeal those proceedings take months and sometimes years as with our name plaintiff mr florist after his case was referred to the immigration judge he waited for over a year of locked up in detention before he finally had his individual hearing and thereafter he waited for over two years before he finally despaired of being locked up in voluntarily dismissed his appeal now in this context there's so much that can occur over these prolonged period so you have an individual who had the st six month period like mr forrester like mr martinez bonnie's has not even had his individual hearing and so maybe the court determined that they were a flight risk but thereafter six months later you have an individual who's prevailed before the immigration judge but the government files an appeal dramatically altering the circumstances dol how in the courts analysis to come back and determine whether there does tension continues to be justified and that is the point of the constitutional analysis understood by this time that detention to its legitimate purpose does the pro on detention continue to be reasonably rotated to its purpose statute should be constructed thereafter and that is to say do those when periodic custody terminations require an individual decision maker so he given that seeing is no are good  disavowed that they would the district court would address the constitutional concerns so we have a separate argument that i would agree if the you know proceedings remain and it would raise that constitutional argument we still believe in district court had ample authority to make a these periodic bond hearings that you feel is the bigger problem as do you expanded upon not just the constitutional concerns but how they're threatened when you have the jailer when you don't have an independent decision maker making that determination and again we're talking about an individual if you if you get to that periodic review you've then been locked up for over a year and as this court held and you've not only are the concerns profound at argument about why that's necessary why they need to bond hearings and you know i thought you said you're not asking us to review any constitutional decision that the district my mistaken yes in part correct with respect to the report recommendation and then subsequent to this spring court's decision jennings versus rodriguez the district court and opted the report recommendation without further analysis of the periodic maybe not been considered in full by the district court but an option to consider post yelling how that works if at all right that is correct that they have not been we presented that before the district court it was their post jennings but the district court's pinioned does not address that we do think that the underlying principles regarding if constitutional avoidance is a portable and jennings reaffirmed the constitutional avoidance they can a constitutional can a constitutional point is a quibble to the statute then the approach taken by this court that was struck down in another statute or that can was in a political was appropriate guidance for the district court say the supreme court was not just going in a statue but was looking at the implementing record regulations and that what do you see in the post jennings or engine that authorizes the th circuit to approve a periodic bond reason why congress may have desired these periodic reviews that the government interpret the statute to provide so it is not as if the periodic reviews have been pulled out of thin air these are already in place it's just a question of who conducts those periodicals so one of the already we're relying upon wheat there is no law and our jurisdiction as far as i know that survives jennings that authorizes periodic reviews i correct that's gammy is much in a much different position whereas here the supreme court explicitly mentioned this contrary interpretation of what the government alleges is a contrary interpretation and distinguished it so when you have  now one thing that was i think defend it's also ignore is that in the vitus itself the supreme court again focused not just on those whose roof removal was not reasonably foreseeable but instead also mentioned that for those even where that removal is reasonably foreseeable the core must still determine whether the detention is justified and noted that it look at whether that individual had committed any criminal offenses that may justify that detention even for that brief period of time so i underscore in the fact that even where removal is reasonably forseeable it still must remain reasonable to its legitimate purpose clearly acknowledges that even if you hit that one hundred and eighty day threshold if that person's ruvell is imminent then they're not entitle to a bond hearing so it addresses what defendant said was a contradiction in terms i'm sorry thank you for the correction and certainly the supreme court's and now assistance divide us by recognizing the distinction between those who are reason we perceivable and those cases where it's not reasonably forseeable made clear that the still had to be a determination that the law on detention remained tied to its legitimate purposes and so in conclusion as this court has found holding apply but that rationale also implies to support the district court's additional requirement that they receive those determinations at the periodic hearings that are already called for by the regulations repeat myself too much just touching going on on regulations because i know we again got into a discussion about regulations the question of what the regulations may may require a mail out for is separate and apart from what the statute requires there is no question that the government can go above and beyond the bare minimum that the statutory that the statute might require in promulgating regulations and i think the courts point is a good one with respect to the only arguments before this court both in this case and  prior case are the statutory arguments the district court didn't reach those constitutional arguments and with respect to the question of recurring bond hearings i think the court for correcting me earlier when i misspoke that did not come from do it would appear  in attempting to comply with the supreme court's decision and sadhvi das the government's post order custody review regulations poker we call them regulations do provide for some form of recurring custody review determinations done by da chops so i think that's where the district court is getting this idea of recurring but to the courts point that's not something from the statute that's not something that do for acquired an interpreter one thousand two hundred and thirty one i six that's not something position that with respect to periodic bond hearing there's simply nothing before us because the district court decided that except the portion that was struck down by jennings with respect to the constitutional claims and the constitutional argument that plaintiffs may have for record that is correct that's not before this court i will know that this decision martin espanol's is before this court and does require the recurring bond hearing and certainly at the very least that is clearly irreconcilable with