our sitting with the circuit in pittsburgh something that is not a long long standing tradition of the third circuit but has become a tradition  statutory construction is shit after all is said out here and in my asking if any other good of appeals in the country has embraced the position that you have reach the merits that well you know i didn't really come to grips with the statutory construction yard it's a fair point that it's not a lengthy discussion but we made the argument very specifically and smith that don't waste your precious time ok would you agree that the ninth circuit panel in smith assumed really with that deciding that the only thing i would say to that is that they did drop a footnote footnote six in smith's saying we reserve the suspension clause issues because we find jurisdiction to review whether this person was properly put into x but i don't move about i take your point your honor that it was not a lengthy discussion and so i was not what i think is that there hasn't been a lot of grappling with the stat construction issue in the courts of appeals there's not been discussion of the relationship between the two sentences in trial fifty two he fired a lot of the cases were not briefed only four of the cases were hatless cases and our statutory position is this that the ultimate question of inadmissibility or entitlement to relief certainly not cannot be reviewed congress precluded that jurisdiction but what can be reviewed is whether someone is properly put into iraq and that is who was the ultimate decision maker over the question of entitlement to relief or war in this ability and isn't that kind of challenge that on the statute contemplates would have gone to the district of that there are issues that would go to d c if we were bringing in across the board face or challenge what we are seeking to do is simply infer orse the current regulations and statutes in our individual cases we don't believe that the government expedited removal does you know the credible fear determination was made appropriately mete out was the way you framed your opening remarks and not the who decides questions strikes me as a contention that the way the statute is currently written without article three quarters view is a systemic problem well let me let me is that's an important point you're raising and let me sort of break it apart if i could that to the extent we are saying there has to be federal court review one hey vs that is a systemic challenge you're absolutely right but valid it's not a systemic challenge that would go to d c and i think the governor would agree with that and that's because in transfers to eat three that's the provision that deals with systemic challenges it says question whether systemic or in particular we don't think actually that's a systemic question on the on the merits we believe all our claims are individual and henri mandeville thirteen judges in the eastern district that have received these cases they will look at our particular claims but the only thing i would say because the merits are not before you is that there is one common theme among all of the twenty eight hours that still remain and that is they were all found factually  said was you did not connect the legal dots you did not show a nexus that's that's not what you expect a removal process is supposed to do is require these young women in after a long journey traumatized to be able to explain the legal requirements it was clear that they all should have passed for a variety of reasons but again that's that's the merits question and so on the stretched reconstruction you know question of it's a fair point that that we smith did not grapple with the issue but i don't think any of the cases the government has cite rapper with the issue i think the implications of the government's position of saying the agency has complete control over the boundaries of the experimental system are fairly staggering the statute is very clear that someone from cuba that's the subsection ath which talks about we don't have diplomatic relations with a country in the western hemisphere that's it reference to cuba so they could put a cuban person in new york the government is saying well it's not a mistaken identity claiming that person would have no recourse they could take someone who's been in the country five years and put them in expedited removal that person would have no recourse so we do not believe that congress intended that the agency to have control over the boundaries of the expedited removal system under sincere them person would seem to have recourse wouldn't they that person you just described would seem to be similarly situated to the legal permanent residency well i think that what sin believe is a suspension clause matter absolutely but they need to be able to go to court i think the same statutory construction argument involved in sincere is not here because we're dealing with a different provision but if i could judge part of the trench of the suspension history of this country in which someone did not have access to the federal courts the challenge the legal for would it be of the removal order if they were on u s soil that is absolutely clear from the cases and we believe the government is simply that's it important point if i could just step back one second because i think you're asking a question about the merits in some respects then so so but let me let me just see if i can then the response of the first point is the suspension clause does not hinge on whether one has due process rights the government has no way answer to that that is one hundred percent clear for many reasons the first is this a special clause was one the only true individual rights in the original constitution the other being the expos factor plus the due process clause can come along to four years later in the bill of rights what the framers understood the suspension clause to be about is in forcing your statutory and regulatory rights  process clause later came about and therefore someone could also enforce it you process rights if there was any doubt about that beyond that there was a four year gap but many in resolves the question  we reserve whether they have due process rights because that was a very contentious issue about whether they have to process right now as to our people our people clearly have due process rights because they entered the country  even if they were i ride the millions who have not entered the country they have the right to statutory fair procedures related to their were silent but even if this court were to say we're not going to resolve whether they have to process claims on the merits they clearly are raising our primary arguments are statutory and regulatory and there is no question that they have statutory and regulatory rights that would be true even if they were riding the alley it's certainly true because they entered the it turns on the amount of time or how you went through that has been the law for more than one hundred years and the government has conceded that point wells went over for one hundred years congress can do what it wants and doesn't let me for clarification try to understand this a little better is it the fact that they entered is it the fact that they are physically present were the boat is it does matter i think it's both i think it's more that they physically entered but i do want to sincere interchangeably cited so if somebody flies from the united kingdom and lands at o'hare with with papers that they think are valid and they can't even clear customs and they get put in a holding room you're saying the executive has no right to put them back on the plane dock the next plane back to the u k that person has a he's right if you're running it put them on the next point yes john and i would say two pings and as a practical matter very few people executive has has virtually no power no article one article two power to police the borders independent of judicial review that's your organ your honor that that's absolutely right and that that is not that is our argument based on one hundred years of precedent the one thing the supreme court has been steadfast about over the past since they've been regulating immigration since eight hundred seventy five is you have the right to go to court it may be very short and the government has suggested these are going to take a long time that's not true this case is taking a long time because they're fighting jurisdiction as were many and said the district courts can handle these things the government has made this point that your position really would best in the person who crossed the border differential the supreme court is but one hundred percent clear whether you landed an airport at the border you have paid this whites or if you're in the country if you look at the g i joe site that we have or any of the other cases so the hideous rights would be the same potentially could be different are your merits claims someone at the border someone in the country but this court has made clear at least with respect to asylum if you look at the quiz on site if you look at it easy to want to ab any of those cases cited in whose mind you were at least entitled to fair procedures even if you don't have a constitutional rights was silent even if you land at the border but this court certainly doesn't need to write a broad reaching opinion these are people who entered the country there is no authority whatsoever for saying the ves people do not have hate us rights to challenge the legal validity of their order and you know all these cases very well i know but the cases that you just scots in those circumstances least one or two of them the petitioner was complaining about the application of this particular type of removal to that they're not subject to it because i'm a lawful permanent resident i don't fall into the category your clients fall into a different category there isn't a dispute as far as i know that they would fall within the expedited removal process because of the length of their presence and their distance from the border correct procedure but there are cases in the country i just want to because you're raising an important point i just want to be as clear as possible your honor about this we are not saying that they weren't subject to the exparel process and micheline what we're saying is if they turn out to be bona fide asylum claims the statute or reg makes clear that the ultimate decision about asylum must be made in a regular section two forty immigration proceeding so what we're simply saying is congress did not want government agrees with that presumably i mean they get put into the category of the eighty six percent not but that's not the predicament your clients find themselves well your honor i think the fact that there's a high rate of passage now i think is not all that history of this country in which someone on u s soil entered the country did not have the right to go into federal court to test the legal validity of the proceeding i see that i and so my rebuttal time is yes we'll also is in response to something that you argue in your brief what are the policy and practical implications to the government and to the expedited removal fourteen days of crossing illegally or one hundred miles of the interior noted that at that time a million individuals at that time were potentially crossing the border and being apprehended after having done so illegal and there's just no way to put all these individuals they have to be released and then we don't ever see them again are a large number of them and the statistics while they don't necessarily drive behavior in corrie that's a constitutional issue of course fifty thousand people make these claims as of the most recent data last year was forty eight thousand and that's why this year in just the first two quarters it's over twenty thousand and so it's looks like it's going to surpass the fifty and forty thousand and if claims his position prevails that actually they have a right it haiti is proceedings to review the evidence they sufficiency of loud judicial review in a court of these fifty thousand cases of individuals asserted credible fair sure they are that's their constitutional argument though they say that that the whole point of the v is is to get an article three judge and however competent the government might believe the asylum officer and the other two levels of review are you would agree would you not that there is no article three judge provided what system there is and i think at least in detention context to the review a few legal questions and constitutional questions and here i think it's helpful to us if you agree then with mr to learn that of a fellow comes from the u k presents himself the pittsburgh international airport they don't let him into the country that that government take these folks and some of them right across as they made a claim of credible fear and so under the statute in the regulations we're required to explore whether they have a valid asylum or withholding claim and that's what's happened here each of these individuals went through this process outlined it you see twelve twenty point three so then you're arguing that the government has given the more than they were entitled to when they were captured correct the government didn't have to give them that prosperity they do in the country now so why don't they have due process rights isn't the law clear the person's found within the united states of due process rights i'd say two things that first no it's not clear i think it's instructive to look at the outside decision which specifically states we are not deciding the question of the due process rights of individuals who quote enter the country they would have all the statutory rights attended to those types of procedures but how can i mean this is this presents challenging separation of powers questions how can the court police the executives ability just to say what rights these folks from title two i mean one one year it's fourteen days and a hundred miles and the next it might be you know six months and three hundred miles i mean is it your position that the the courts have no role in in policing those sorts of executive decisions no i don't i think your example really leads into the issue of twelve fifty three so wore the government to change the rules of the game as it were to three hundred miles five hundred miles whatever it may be anyone subject to that court caught basically right out the board i don't know that it is the case that the governor would take the position that if there were different matter of days it wouldn't matter as well out of that and that i would prefer the court of the pain a decision out of the ninth circuit where the court there found an individual proceeding through the petition for review process and reserve the question said the issue of an individual to not initial admission would present an entirely different question i think that's really what distinguishes every single one of the cases that plaintiffs are referring to  to individuals who are physically in the united states have due process rights and more the point even if it's not directly on point if an individual who has crossed the border illegally and is here for a matter of minutes most of these folks and our best some of them maybe three i believe they are at what the seven circuit effect to an accident or removal case con at the lowest ebb of whatever due process rights they may have so they may have some to process rights under that analysis but what congress has given to satisfy whatever those due process rights are they got a full review back to administrative levels they then have behaviors magnussen to say wait a minute no no i'm not someone who should be in the system i'm a citizen i'm a lawful permanent resident are i'm a refugee or not sally who's been admitted previously and i still have that status and that's all the safety valve that actually cases like that hearing out of tire require that seems to be your best argument against the suspension clause argument made by the other side that congress has provided some species considering the person and asking whether the person gets it he just remedy or are we to look at the statute generically for purposes of the suspension clause and ask whether the statute provides some form of well i think you look at it this way so this is why we take a position in the brief that you first start with wet what if any due process rights these individuals have and then i think ok forget your due process for a minute just focus on the suspension i mean that's what habeas is for that's what the supreme court has told us what requirements are met and here the minimum to process requirements as this court has said in cases like mary pass and yeah i the statute what the statute provides and that is even if we agree with you that the levels of review provided by review of that determination and i'm not in miscible the court said the suggestion that this is a special clause violation doesn't deserve any discussion at all at that point it was settled that these issues are not reviewable and it's been settled ever since so i would refer on the legal point so two things places primarily say we should have one under the correct legal standard and in the process of making that argument they create a legal standard they say we should have won because we showed a ten percent probability congress didn't give it to them other than what that limited hate is provision provides if and they came in and apprehended started that came in clandestinely and then were apprehended very quickly we compare that to someone who got into the united states kindest only but didn't get out we had it for four or five years they get regular removal and article three review how come how do we distinguish those two categories of people why does one get article three review and the other doesn't when their entry was the same they didn't present themselves to an officer but one was not as good passing through law enforcement's detection than the other well starters the statute tells you why the statue at twelve twenty five says the dividing line for what can and cannot be permissible for extra was two years and then the regulation tells you it's fourteen days and unless and until that regulation is changed that's the operative individual again not this case like vastly different in terms of liberty interest a state because they've actually been here and under supreme court precedent have developed ties presence community family all things that the courts routinely find suggests increases  process rights even if they've entered clandestinely even if they've crossed illegally and to that to that effect i think judge smith you were discussing with plaintiff's counsel briefly the issue of incentives i'd like to point the court to its decision it very day v r d which i believe just met you on the panel on which basically describes the logical conclusion we are here as a mockery of those that actually follow the law and that's a relevant determination in terms of what due process rights are individual hats how did they expose themselves to the laws of the united states have a lawful he presented themselves for admission each of these individuals in theory could have presented themselves at a port of entry and we'd be having an entirely different conversation but they didn't  they they crossed the border they were sick huge failure to police the border has caused this problem i mean it's not the courts making i mean well now you want you want the courts it sounds like to say that these folks have no rights because the executive has been unable to preclude people who have no legal right to be in the country well no i wouldn't say that's our argument i would say that congress one of the executive to be able to police the border precisely because they cannot possibly pick up every single individual and force israel in the border become a hundred miles from the border i mean isn't there an alice in wonderland quality well i'm not really you can look at the fourth amendment context where the border is not just an f r provision and it sets forth a number of procedures individuals who are in this process are entitled to what mechanism do they have to enforce that you have you know all these areas privileges or rights i they couldn't come to this court i think they could go i think the safety valve was three put aside the sixty day time for a minute they could go there and say hey did the the statute allows them to remove these types of people in this situation they're not doing that question that's not a question of law just calling it a question of law would make everything remotely discretionary reviewable in federal court we think they know supply the law as a talismanic label is not enough to get you around the bar that the supreme court has affirmed time and again as a reason for why s rights to some people can anybody any branch of government suspend the clause or is it something that you understand it would typically be done by the executive i don't know if the executive oh  actually take what it does with you know we there's just not a lot of law out there are bright defining what is a suspension of the writ i mean really what is the government's understand the pure language of the constitutional tax the executive i in congress also be guilty of suspending the writ in violation of the suspension clause i must admit i don't have a good answer for that i don't know what's beyond the scope of the briefs here but i'm happy to follow up with that if you'd like but i think he individual claims as i should be allowed to enter the united states because i'm a citizen or you can apply to me because i'm a lawful permanent resident or about fifty years thank you very much honour's there's no question that there has not been a suspension here whether the executive branch could do it we don't believe the exact branch could go up but there's no question there's not a suspension that's a formal requirement to take a declaration like in the civil war so i just want to put that  whether they be due process the statute or regulations there are twenty force your two separate rights what are they really and they're two different rights but are they really totally separated here because you know both are flexible both are a factor of and there seems to be some synergy between the two and frankly for my purposes speaking only for myself i'm finding it very difficult to appreciate precisely what those synergies are so my question is you agree that there's some sort of symbiotic relationship between the two clauses in this case and if so what's your understanding respectfully your honor i i do not believe there there is that synergy and let me be clear about this i questions were many and involved enemy combatants kuantan among the supreme court could not have been clearer over the government's objection struck down the statute and said these detainees at guantanamo have no ties to the united states never stepped foot in the united states house especially those rights but the supreme court then said making it clear these are distinct we don't know whether they have to process rights we're not going to decide it that's on every man for the district court to decide or maybe they have statutory rights to enforce maybe they have regulatory rights i think vats riders not synergy and you also go back to the arriving alien cases back then arriving al had no due process rights yet the supreme court repeatedly in cases like g joe said well they at least get to say they didn't fall within the subset of statute or the regulations or there was some procedural error so that's why they are distinct the other point i want opinion page seven seventy nine i think this is critical because the government is suggesting well the scope of hey vs review can pretty much be whatever congress wants maybe and could not have been clear on that point with many and starts by saying the scope of s is tricky but there are two things we know that are uncontroversial that come from history the first is questions of law and mix questions hoth to be reviewable it and it also says if someone needs to be released then the biggest court has to have that power to release it then goes on to say that maybe a factual facts specific circumstance specific question about whether they get review of facts whether there are other things they get i don't we don't we have to take cognizance of the fact that that's a detention case in the supreme court emphasized that these folks were facing i think the word was generations of of the tension right and i assume that if the government there was no review of questions of law and mix questions of law the same was true sincere there was no suggestion that removal water challenges and challenges to tension were different the government's position is that you only have mistaken identity claims that could not be more consistent with the committee and was sincere and i want to address the systemic point about going to be three that's a red herring the government knows full well the d c circuit is set sixty days the government has brought into the d c circuit and invoke the sixty days are over that can only be sixty days from when there's a written policy what happens in cases like ours where they just vote they're not raising a systemic challenge simply trying to enforce the rights they have those are not systemic challenges i promise you the government would say if we went to d c these claims cannot be reviewed the other point is the government is saying we're only raising factual claims that could even more wrong for example the reforms the regulations the statute say very clearly there hostile be an explanation for a right to claim was denied the government says we're just raising factual claims well how w government know they're just simply checking the box no nexus and as this court knows asylum is not just purely factual there are multiple legal questions and asylum case did you have a particular social group did you were you would protect opinion multiple multiple legal questions all those would be for the district court to figure out at this point as somebody and the question is simply do they have a right to raise legal questions and mix questions the substantive rights will be figured out by the district court and again i can't say this strongly enough even if they don't have to process rights twenty first in the district court but he's certainly have statutory rights and regulatory  the government would have to concede they have a right to a proper translator to that asylum not sure how to listen all information take them to account country conditions your position that the only way they can get that is by way of a real he's corpus and there's no other legal avenue that your clients any of those claims the government is now coming up it's all i would think could be done in ether reading a systemic challenge they know very well they would oppose these types of claims being brought in d c this is not what congress intended to be brought in the three and in the room i think so we have five thirty seven petitions the government's talking about an enormous number of people thirty seven petitions are we file and that's because there's a jurisdictional issue we found maybe ten more around the country then i just close on this point the supreme court has never let voting stop hideous corpus the whole point of the suspension clause was because the framers understood it would be inevitable that the political planters which feel pressing need to restrict article three review that was the whole purpose the suspension of the arguments could not have been stronger in blue medhi and saying you cannot possibly give these enemy combatants hate because that will screw up everything if