extremely broad discretion to establish the process for determining if individuals in removal proceedings may be released forcing the government to carry the burden of proof and i'm going to higher standard encumbers this exercise discretion in an area over which the political branches have almost complete power because a district court session cannot be reconciled with this fundamental premise it must be reversed i'd like to begin by discussing  extraordinarily clear that this was the attorney general's discretion so far and the supreme court recognized that encourages an ending for us the supreme court recognized that congress eliminated any presumption of release and expressed we committed that the constitutional question the supreme court struck down the procedural protections that went beyond what was provided in the regulations in other words it went out of its way to find that the burden shifting was not required and even the to the government and heightening the standard to clearly missing evidence also that only two circuit courts to examine this issue since jennings has not found any constitutional problems with e a only and carrying the burden  the procedures and i mentioned the three layers of individual eyes review plus the fact that he illions a very wide latitude in the type of evidence that they face the best city i j and the fact that they can request another process even in the face a statutory command to the contrary not only there has to be a hearing but that due process under those delayed circumstances requires the government to share the burden i understand may be your argument goes to the st point but it doesn't go to the nd point congress has a very broad discretion to set these procedures and and again the supreme court has never held this the supreme court has allowed it for instance into more for for detention it i don't think you need to get to matthews because i think based on the supreme court that that's enough but assuming that the northeast does does apply for for the moment an important consideration i issue before you make the assumption what's the basis for the assumption that matthews does not apply because the supreme court has again and again the constitutional you talk about supreme court precedent that answers the issue regressing here i don't understand how carlson and the who or which deal with it very different category  just told us that the house referenced to me and specter general's report had to do with a high flight risk among those whose a request the legislative history i mean and it may be that the house simply mischaracterized the information and pronto that well your honor i believe that it was a failure all aliens were not detained so yes i'm sorry what was the basis for that the only basis that i think was cited was an inspector general what's the basis you're the one who just told us you were going to educate us on the legislative history you should be able mansard this question circumstances and it would be within the isis discretion or and i do use discretion to determine based on any individual in circumstances whether such a measure would be would be where we're told that that costs a lot less than incarcerating and alien secor act i mean i can't d speak to that a lot of personal knowledge but i have seen i have seen reports that do suggest that adam from from  us i believe it's their budget reports that they do suggest that and is there any data on what percentage of people who are subject to those conditions actually do flee i i'm not sure whether order the i j a might consider alternatives to continued incarceration detention alternatives that by the sure an individual without a problem are you suggesting that it would that it is a problem to think that the two agencies could coordinate in dealing with these kind of all troops to detention you know your i function in the department of justice were to order conditions that might promote the people will appear that those conditions have to be applied monitored by the h s we were told that's a problem you seem to be singing about really not a problem to understand you correctly it certainly imposes an additional burden on the governments who have to continuously monitor someone as opposed to if they're detaining obviously they can't flee i'll whereas if the government is placing lots and lots of illegal monitors or or is responsible for  s monitoring many many people of course that would increase the number of resources so even if the wrong numbers may suggest that less expensive to use on an equal monitor it wanted since you know ulti is this something that the judge hearing the bond routinely considers whether there are viable alternatives to detention and is the judge required to consider that as part of the decision the judge is not required to consider although this i j said extraordinarily wide latitude in what factors th a detention such as the ankle bracelets apart from the question of the costs imposed on personnel i would imagine the takes that into account and the position it takes before the immigration judge about the necessity for detention as opposed to the danger nor a flight risk yet when being held pursuant to trial twenty six day was required to overcome a presumption that she was a danger or a flight risk and because ms hernandez laura bore the impossible burden of proving this negative she was erroneous lee detained for ten months because miss hernandez laura's removal proceedings are still ongoing today had the district court not found that her due process rights had been violated in order to nd bond hearing at which the government was required to bear the burden of proof by clear and convincing evidence ms hernandez laura would still be locked up today in a department of corrections alongside convicted criminals this would have been her th month in detention we are here today to strongly urge this court to affirm the holding of the district court of new hampshire your honor as you have to decide one question today and that is whether due process required the government in this case to prove by clear and convincing evidence that ms hernandez laura was either a danger or a flight risk and the answer here as the district court found is yes and in this case we actually have two different avenues this court can use to get to that answer the st is how the district court decide this case and that is because mr hernandez laura has a significant liberty interest at stake which is not diminished the government must bear the burden b evidence under our st argument it is crucial to start at the correct starting point and that is that liberty is the norm and detention is the exception and we know  there are bedrock principles of due process that we can use as a guide in posts the st is that due process places a heightened burden when there is a significant liberty interest at stake that is more significant than a mere exchange of money the nd bedrock principle is that civil commitment for any purpose constitutes a significant deprivation of liberty and requires due process procedural protections and we know that these bedrock print principles apply here in this case from the greatest which held that all persons within the united states are entitled to these bedrock principles including aliens regardless of whether they are here lawfully unlawfully temporarily or permanently and i think this is the point that we don't even have to get to a matthews type analysis which was to some extent you were alluding to because the supreme court has already made it clear that the government can apply rules to with grants that would not apply to citizens that has a different type of due process analysis is appropriate when we're talking about citizens too so to do yes your honor and the language and do more of that there can be rules applied to aliens that would be unacceptable if applied to citizens that does not leave limitations on the liberty interests of an alien unre even if a role might be unacceptable it still has to have constitutional limitations and pass constitutional muster and it doesn't also mean that a rule of being and with deference i rules do not apply in this situation it would have to be a different type of due process analysis and yet every case you have sided are to the normal rules so why do it is that under an a special due process and now it says would say that the existing structure of rules is itself that's procedural protections than would be the normal course you know not excuse me that may be true but the general principles are out there so i ask you not to make an argument like that because i don't think it works i think thing you have to make a different type of argument perhaps along matthew's line i don't know for sure your honor and erroneous deprivation of that interest and the government's interest if we look here at the private interest at stake here mr nando's laura mr banta flores has a significant liberty interest in being free from physical confinement and her her private interests at stake only grew as her detention grew so her her private interest at stake is incredibly high and the government has an overwhelming interest and protecting the community from dangerous and it has perhaps a lesser interest and a preventing flight risk so what is it about these procedures free from danger and there's no question about that but the government has not articulated in interest in detaining an individual who is not a danger or not a flight risk we have an individual here case one way or another i think the question is whether the procedures used given present circumstances are going to lead to came to the bond hearing had she did not speak english she has never attended school she had very limited access to resources yet even with those obstacles she came in she presented evidence to the immigration judge that she had no criminal history no arrests history had good moral character ties to the community and even then the government produced a red notice saying that she would had affiliations with two rival gangs mr nando's laura explained to the immigration judge why she thought this red notice could have any a quick ability to her and not that she had any involvement with any gains but that her brother did and this explanation was not sufficient importantly here the immigration judge found that it was flight risk they just that he just found that because this presumption exists that she is a danger a flight risk she cannot meet that burden and we see the prejudice that resulted in him the burden being on her in the st hearing and  proving so carrying the burden of proving the factor that would require them to do so and then if we also assume that immigrants have many but not all the costs to tional rights that a citizen has so you can't automatically infer a rule for a citizen applies to a wolf or an immigrant and that seems to pose the question should this be the rule that you want us to impose the burden shifting and the clear convincing evidence is that one of those rules that applies to citizens and immigrants alike or is it one of those rules that doesn't apply to citizens and how should we go about thinking about that question and the supreme court has never distinguished between the immigration and liberty interest at stake in being deprived of of immigration status and this is where the citizens liberty interest at stake when they are confined in addition we have the bedrock principle from savannah says that due process applies to all persons in the united states including aliens whether they are he red notice wasn't an option to make the immigration judge worried that she was a gang member and a danger to the community ok but there is an  correction procedure already in place you know and if the federal district court denies bail they go to the court of appeals and there are error correction mechanisms so as to burden and it's quantity of evidence who has the burden and what they have to prove god violates the d in the immigration judge even questioned the validity or or the sufficiency of the red notice in the hearing she found that you know i don't find that this is sufficient enough to show what she's being accused of and because of that we i can't overcome this burden did burden shifting in her nd bond hearing shows exactly what prejudice resulted from the burden being on her in the st hearing that red notice once the burden was shifted on to the government it was not sufficient to show that he injured and specifically here mr hernandez laura was detained for two months and then at the nd bond hearing the government had ten months and in in the meantime her  government excuse me on be alien and then not shifting that burden is not going to address the problem of an individual who is not a danger or a flight risk suffering prejudiced by by going into a  the proceedings will be over completely we don't know at this point your honor to have the end and have the case and will likely be going to the immigration court and there will be another hearing but there's no indication of a timeline on this as it has it has already been exceedingly long process recognize that immigration is different and immigration and the government's plan really print plenary already of that and there are three reasons why the civil commitment cases do not apply in the immigration context st is the right to be in the united states so a person who simply committed generally if he were a citizen who has a right to be here and be at liberty here that's not true for a person who is being commitment is involuntary the state would prohibit someone from leaving a mental hospital and that person would have absolutely no option but to remain in the hospital here in that a detention hearing a little proceedings the alien can voluntarily return home or choose not to see continuances to see the case along those are those are of course difficult choices to make but the supreme court and a more recognized that sometimes aliens do have to make those difficult choices and in into more  prejudice spoke for it went off and did this while not necessarily because well i guess i suppose it could be just initially amber bond hearing the immigration judge decided that government introduced the red notice and the and the petitioner introduced her some criminal background searches from texas and maine as well as some letter from her landlord and absent character i have to say that answer makes me a bit worried