individuals fly in dangerousness is categorically presumed or there's no individualize hearing at all in doing so the supreme court has never placed the burden of proof on the government to justify continued detention at a bond hearing tension rather it's about temporary detention and initial let's let's let's assume that most people would consider being in a prison for many months on end to be sufficiently long enough that they would think they're going to process rights might be implicated and so i ask you again in these decades of supreme court precedent has the supreme court ever said that the government can grab someone off the street detain them for months on end substantial legislative findings congress has an active statute which might categorically creech certain individuals who have been on the basis of these legislative findings skipped over two different claims that were made one was that this was contrary to the congressional intent and the statute but chose not to change the law at all as to subcategory egg and yet the agency goes and promulgated a regulation that has to do with you know i'm left wondering whether that reversal of patel actually is and a core it with what congress intended and so you look at  history and at the re isn't for the regs seems to be that there was a house report that referred to some study about non criminal aliens and then all of a sudden in legislation that has to do with a different category of aliens the agency decides it's going to do an about face and put the burden on the emigrant yes washington yeah i have another question in the prior case the government was willing to concede that even in the face of mandatory detention if there were prolong periods of detect and that there had to be a bail hearing or reasonable ness determination is the government taking the same position as to detention would depend on the facts and circumstances specific to each individual case and be very frank used to just the reasons for that detention and that's just a different that's a different procedural posture and arises in a different to be calculated differently or thought of different and due process terms well not necessarily drawn as as as and as the district mandated detention and this is all a matter of the attorney general's stis crash and what i'm asking is let's assume there is have viable case that the detention is too long the agency is doing at process but it hasn't finished yet it's no fault of the alien that it's taking so long  exercising their statutory rights are you saying that under those circumstances they have a they should be going to a hay vs court to get an order that they have to be up in removal proceedings will be here to complete the removal proceedings and could be removed if that's the outcome if that's the purpose i don't understand why it was the very outset of the so that they're from the very outset there is no reason to the taking them i mean i don't understand why it doesn't follow the due process  of proof i don't understand why it doesn't make perfect sense to impose upon the government the burden of stablish in the conditions that would justify continuing to tension and moreover can you think of represented people is going up and under those circumstances and says the allocation of the burden to the l and it is more problematic now as a result of other discretionary actions taken by the agency then it was say at the time maybe it could be true and then individual i's situation but it's simply not true in this case that any of these concerns arise it's not  freedom there is no reason to depart from this well established general rule that when the government seeks to detain someone the government must justify the act a task that requires us to do exactly what the supreme court has said we cannot do and that is look at these hands as they were criminal defendants and a bail proceeding or something similar but the supreme court seems to have flatly precluded that analysis it may be that under matthew there is a different argument a veil but before you get to the matthews issues you wrote a law review article some time ago saying this is not at all w but i'm a bit troubled by all of that if in fact there are decent arguments that this is really not walk congress intended comment on that and then get to why you think the matthews assuming matthews applies why there are concerns or ns under matthews that need to be set c they are allowed the attorney general to continue to have discretion when you look at the legislative history congress was concerned about more than just the aggravated felons it was also concerned about their allianz who didn't show up for detention  their hearings or if the hearings weren't going well they didn't show up for removal that's really the government's our position here ok yes yes and the and the government was for people with final orders of removal could r d been there their claims were done over with they had a significantly higher flight risk and that was of course the st time these statistics about detention and about  what happened in that context were brought to the public's attention and so what happened was that i n s focused on and most of the legislative history is about flight risk and future crimes committed by the quote unquote criminal ilian and so that was what caused congress to write one thousand two hundred and twenty six see any understanding was for that very brief period of time permanent residents refugees asylum seekers people who might be citizens anyone who the government thinks is deportable and that in often the bond hearing happens before that determination of report deport ability has even general rule about civil detention which is that when the government seeks to take away liberty the government should do some justification council the just too much to the sequence here i mean i thought the regime that was in place with respect to non criminal ariens the initial hearing them to take place congressman change anything with respect to  and you had in place at that time you have the you have the the regime in place to place the burden on the government to establish all the factors that would require detention so i mean i carlson we've raised in our brief those were separate detention statutes separate detention policy and carlson that had to do with the deport ability of people who were communists and congress and the attorney general was allowed to reference the legislative scheme and and the other thing is that carlson actually the supreme court said purpose to injure could not be imputed to paul ilian subject to deportation so for that reason in the  carlson the court held that with the one thousand nine hundred and fifty act the congress intended to place discretion with the attorney general and his delegates to decide bell because prior to that many quarter several courts of appeals had thought that the attorney general and his delegates had no discretion to deny bail now we know and so one of the arguments that the government makes is about were interfering with the judge's discretion this does not interfere with the judge discretion discretion should be bound by procedural rules and constitutionally adequate procedural rules and certainly if after a constitutionally adequate bond hearing where the government bears the burden of pro review the immigration judges just question so this is different it is congress making a separate set of rules that as a political tool immigration bond hearings that that set of rules had to do with no discretionary review no court appointed counsel and and and the like and no speedy trial act that would apply in salerno but the but all of that civil detention about the foundation which is that the government has to justify detention should apply here that's what i said is that that does apply in the immigration context and zaki das was looking at a regulation that looked exactly cited to the civil detention case law saying that protections of property would get more process then this important question about liberty now under the matthews the eldridge test the current procedures where the detainees has to bear the burden of proof are in adequate to protect the important liberty interest at stake this is the most significant liberty interest there is being free from detention and there is a risk of  detainees are forced to justify their detention his case looks a lot like mr of alaska lopez case in the nd circuit where ice repeatedly did not bring him to court so that the evidence against him from the criminal court remained uncertain and so that allocation of the burden of proof meant he could not prove that negative and also this is the one and only bond hearing somebody has before they're about to suffer prolonged detention we know that detention statistics look different now than they didn't do more we know the detention links the really more similar to a year and this one bond hearing is it after that the only opportunity is that if there is  material change in circumstances that had to teenie must prove so so the even though mr du was only in detention for two months which is a long time and five months by the time he got the correct bond hearing he it and so we will respect the request that the that this court affirmed the district court under either the the eldridge procedural due process test or the generally applicable rule about the government's burden in detention ok i want to ask you of these aliens have been in error a while sometimes five years or so on before they're picked up and they're usually picked out because of some sort of infraction not sufficient to make them aggravated or criminals subject to mandatory detention so in some ways they're on notice that they may well be picked up and if they want to avoid detention they're going to have to show before they are detained they know that they're going to have to show once they are detained that  they're not a danger to the community so i understand if you've never had the idea and you've been locked up for a year or so it becomes very hard for you if you don't have counsel but a number of them do have counsel and the government is saying you know they're in the best position they have the evidence we don't all we know is they got picked up and then we run the criminal databases and  should the burden shift to the government if it is true that the aliens actually have better knowledge of their own circumstances well the st things that an immigration judge looks that in a bond hearing are the criminal records and any immigration records and those are at the government's fingertips and often very difficult for a detainee to get and they don't usually just have them in a file cabinet somewhere at home and so they don't know that they've been picked up for criminal offenses they don't know they have criminal charges against them sally or say no what they dangerous and they're not a flight risk well it's just the government the judge has to consider dangerousness st so the st thing that every immigration judge wants to know about is the criminal history ok so that happens but why does that mean that the burden then shifts to the government as you say it's virtually automatic that those documents are going to be before the emigration judge yes but the government does that now without having the bird correct correct and the other thing too is that the government has has unique access to the alien file which the detainees can only get through a freedom of information act request and you usually can't get the response back frightened they don't know how long they've been in the country illegally no no no what i'm saying is that they have other documents relevant to the fact that they might have petitioned that's pending before the immigration service that would give them an application for relief in immigration court and therefore they would be able to show that they're not of it that they are not a flight risk because there's some valid immigration immigration case pending so for so putting out but you've just said that that is almost automatically produced so when we're talking about who has the burden it isn't about those documents which are routinely provided it is about other information and what matters to here is also the burden the standard of proof because it's what burden of production is one thing and burden of the actual burden of persuasion is another question and here the burden of persuasion the district court put a lower burden of persuasion on the government which was to the satisfaction of the immigration judge in this case the district court didn't apply the clear and convincing evidence standard but i think it the harder question then is what standard of proof does the government have to meet beyond its initial initial burden of producing document ok and that's where we would that's where it is our position that the government has to do more and you know in this case the government only had to meet what is essentially a preponderance of the evidence standard which looks just like but but it was the government that had to meet it as opposed to the detainees having to meet it and with that with that burden shift at the new bond hearing that mr doe had the the judge held that the government could not meet that and so the burden of persuasion does matter even if the government comes forward with all the pieces of paper in the burden of production ok thank you that's been helpful just one other thing you say that it's now a fairly common that it's a year before that there is a final adjudication of applications for relief but how long is it before there's a bond hearing the bond hearing can happen whenever the detainee is ready to ask for a bond hearing so  about the argument has turned on how very long it takes but i actually don't know if it is very long to a bond hearing or whether that is longer now than it was for example when more was decided i don't know there's no statistics in this record as to how long eight case everyone's more or less on the same page that you do get a timely bond hearing the question is what is the cost of the neuron as decision at that bond hearing  that will be how long the average length of detention is i get a bond hearing i could have eleven month in norway but if i should be released and because of the burdens on not i'm not going to be in prison effectively for another eleven months current your honor and the b i a of course is part of a system of ministre to appeals how often does that would probably take more than one day to complete that hearing because of the time scheduling that the immigration judges used for a three hour hearing so mr doe for example had his removal case in his asylum case continued over two days i've had other clients where it was continued but with the separation of a month so the stronger the case the more evidence that one has to present in the defense that means detention will be longer and then of course there are more issues on immigration judge needs to take some time to think about it and so then takes it under advisement and you know sometimes that can take a month to get an answer back sometimes i've had it take up until four months to get an answer back from an immigration judge about whether this case which is a close call you know meets all of the requirements for cancellation of removal or asylum or withholding or whatever the form of relief is how often does the b i am as to the  first the grant of relief and the government appeals how often does the i a e a uphold the government's appeal and then the other side of it where  alien loses but the b i a review and either vacates or reverses do you happen to know are there statistics on this you know i don't have statistics at my fingertips i don't know if this is something that the syracuse track they they have lots of if there is something on that particular question but no i don't know off the top of my head what the rate of reversal by the b i a is or how removal proceedings themselves factored into the bond decisions for example if someone gets a favorable decision on withholding of removal from an i j are they still kept detained i think some of them are right yes they are still detained if the government takes an appeal so the bot whatever bond decision was made earlier on is then continues unless the unless there's an argument that there's a material chang circumstances but typically the strength of the relief from removal the judges determined it really only goes to flight risk and not too dangerous to us and so if the judge has already decided that there is a dangerousness finding then that light then a new evidence about flight risk wouldn't be a material change in circumstance so yes the answer to your question is immigration judges do often and always look at the strength of relief from removal the underlying proceedings because it gives somebody an incentive to come back if there's actually relief from removal the stronger that relief from removal is the stronger the really the person has as an incentive to come back to what happens if they're out on bond and they  lose their proceeding on credibility issues before the i j a they brought back into detention i mean it's possible that's what full twenty six b sense is that the government can detain and they there was a board case many years ago that seemed to suggest that there had to be at least some material change in circumstance for the government to take somebody into custody but that authority under one thousand two hundred and twenty six b is pretty sweeping that does allow the government to then take someone back into custody who they now think is a danger or a flight risk and they don't have to justify that to the immigration court st they can just take custody and then the person has an opportunity for a new bond hearing in fact that's what happened to mr penton and though he in the district court's decision decision he had been released on bond and then the court then the government really detained him and then at his bond hearing that was where he argued that he should not have had to bear the burden of proof ok thank you it's been very helpful to get all of this information take advantage of your expertise thank you your honor