reasonableness inquiry is not inquiry about whether the statute is constitutional or rather it is an inquiry conducted pursuant to a constitutional rule set by an article three court so that i g s under this scheme would not be somewhat confused about your concession apologies if you are you are correct our primary position is that a bond hearing should be required at six months if your honour's agree with us on that issue this entire issue of whether the i d f has jurisdiction  primary position is that just aren't hearing itself is required and we don't need to reach the issue of jurisdiction for a reason why this hearing could you consecrate you help me out on a threshold issue there are a there are three named plaintiffs in this case it's you it's i understand one of them actually one already right didn't in our prior decision he won and that was affirmed and not withdrawn correct your honor and another one is i think left the  country one of them has left the country and another one that has left the country my understanding is that he recently won his petition for review and is now it would come back to the country your honor and then another one is then reclassified is not within mr mr reed is in theory subject to a detention so i think he would he would still have to speak in this case and but when you when you say what do you mean in theory he subject he's already had a but putting up to once putting up one side i guess it seems that then your case would be contingent on your ability to maintain a class action and if you can't maintain a class action and the three named plaintiffs no longer have individual circumstances then it would seem that the basis for the class action is for our men and the and tire case goes away the the statutory bars on some type of actions query whether it's class actions but even put that to one side if we're just looking at the traditional twenty three dollars standards i can i can start to understand how on the claim of whether does a person a six month rule would be a common claim under and i'm to be too but the question what having is if we agreed with the district court that the class loses that claim can there be a class claim on your alternative theory which would seem to call for an assessment of the individual circumstances of peach class members yes your honor  differently situated for finally the declaratory judgment but not enough he says is liability left hanging after the resolution of the common issue and here i mean it's a common issue as to whether the constitution provides due process we could answer that yes that doesn't and that advances the case but it doesn't establish liability all of it before we get to relief which still short of even viability requirements for class certification the fact that that amps are might play out differently with respect to members of the class on the district some members of the class may be able to establish through a reasonable xp receding i just before the district court that they're now entitled to a bond hearing that doesn't matter in terms question i was starting to ask you just said what was common was the fact that under c every one is subject to mandatory detention that is not your case claim your claim is that there has to be a per se rule that they get st a bond hearing or alternatively a reasonable  no you have not none of your plaintive sir are prolonged detention the six months does not meet anybody's definition of prolonged detention it  did not meet prior decision and read so then that becomes a matter of individual circumstance that goes to liability you just turned it upside down because we've got an injunction that proves that we had a valid class all along i don't understand the law to be that way your honor knowledge go ahead judge chaotic you know you've been we've been asking you questions about the class because that that would hinge on one way of hanging on to the case of all the three p that's just saying any when you're saying even before someone's detained there are proper number to represent the club and they have a claim well your honor given given their previous criminal history it is possible that they show gain jury to the community right because your plaintiff has already been released on a finding that he is not a danger to the he can bring this suit even before he's detained because he might commit a crime yes your honor those are circumstances of course that would put made mark read district or under as well as potentially considering other class structures under rule twenty three or otherwise to touch base briefly on the injunctive relief as well  as argue that due process requires the government to prove i'm wrapped up your sad events and then end sure due process requires the government to prove both dangerous and risk by clear and convincing evidence to justify their continued unreviewed prolonged confined thank you very much thank you counsel think it says that if we think you need more time we will give you more time but you're not in a position to reserve time i think you better start with  the procedural issues that judge chaos has raised and your honor well this court should affirm the district or district court's holding that all twenty six c's mandatory detention is basically little let me see if i can help it sounds like what you just said is that there is a proper class there's no problem with the three playtest no longer having a stake in the case so we should just get on to the full blown merits not even stopping at the six month issue but beyond that as well that's what it sounds like you would just say your honor no i was trying to explain that because the district court mean those findings that really ended the case this case should have been decertified at that point o not for everyone but there was no requirement for automatic voluntary at six months and as soon as the just report found that there was nothing left for the court to do the court should have decertified a class because that was the only sort right question the only common issue was whether that was their detention for six months and the common relief under to be certified under twelve i'm sorry under rule twenty three dollars b two it was contingent on the ability to resolve that claim to all or none through one bright line rule when you're sick when you say that was the only common issue that's a good of an overstatement there were lots of issues that are particularly common i think the question is not whether there are some common issues but rather whether the resolution of the common issues  meaningfully advance the progress of the litigation at least for example establish liability yes there are no the common characteristic they all share is that they've reached six months of detention beyond that whether an individual due process has been violated does require an individual determination and that's why the government has maintained throughout this litigation that each individual must file their own aliased and titian and their district court can assess the specific and unique characteristics for each class favorably inclined toward some due process protections on prolonging detention i think what you are saying is this isn't case in which to do it ok but let's take it as two steps why isn't this the case to do it it's taken a long time c mandatory detention there could be a point at which continued tension without a bond hearing is unreasonable and violates due process i thought that's what i got out of your brief is that you accept that that is the theory should be considered in determining whether the continued detention without a bond hearing is unreasonable constitutionally so thank you act that these doesn't have to start with whether the detention itself served the government's legitimate interests might consider the length of detention is not the most prominent point it has to be tied with the whether the detention still serves government's legitimate interest and congress specifically picked certain criminal illegal and ok so explain to me why the due process ruling the there should be a bond hearing at six months which detainees must be detained for the duration of the proceeding there is no right to a automatic bond hearing any particular point in time and so to get to a bond hearing and elian has to go st through he has process and only if in considering the unique circumstances of that individual and just to that individual the mandatory detention has become such that it violates their due process then the next step would be  you know ideally the immigration system would be able to afford bond hearing within six months but as a practical matter that is so maybe it isn't so because one side or the other has prolonged things maybe it isn't so because there and i border area where they're just overwhelmed  maybe it isn't so for a number of reasons and i thought that that the rd circuit was looking at the reasons for  delay and saying that that was one significant part of the analysis as to whether there were unreasonable delays or not do you agree with the rd circuit approach as to how we tell whether there was an unreasonable delay yes your honor i think there are parts from that decision yes court could consider and it certainly would involve the reasons for any delay whether it was the l a and seeking several continuances versus the government you know for two thousand and sixty detainees the government does have an  laura half minutes left thank you and but it is sad what do you mean the government has an expedited docket yes you're on it for detained aliens the immigration courts and the government trying not to see extensions and try to move those he says and schedules hearings as quickly as possible in a group significantly faster at this point they and individuals who are not detained so there are sort of state guards in that regard to limit the time at which they rule proceedings but all of these questions preached six months and the answer was no it may be that some deserve their due process has been violated but for most the answer is no and because that is inherently turns on individual factors this court should have d certified the class upon answering that question and saying that the due process clause does not require automatic what do you say i mean this is a real practical problem here is if you you can't go and we're not to have this claim until you are detention has become a reasonable the heaviest case itself is going to take more than a few  months and then you go back and have the bond hearing it's sounds like you have no possible belief until your constitutional rights have been violated and then even then they're going to get violated some more so doesn't that create some attraction to have some bright line tests that avoids all of that i would think your client would want to have just for administrative purposes a bright line test rather than having to respond ad hoc to hundreds of no your honor the d congress specifically made the statute saying that detention is mandatory for the duration of the proceedings and there is a definitive end point after in those proceedings i'm going to have to get immigration judge constitutional limits might have to be imposed upon statute to simply say that the statute doesn't provide for it is hardly is hardly an answer to the issue that we're trying to address here i mean that just to process it might lead to their deportation i mean if we know the normal that sort of the median removal proceedings taking here doesn't show that inform our judgment as to whether of this is not a prolonged detention case this is just about whether due process requires that opportunity for a bond hearing and that's only if the due process has been violated because then the government purpose for detaining the island to protect the community and and reasonable and also in joining the statute in terms of the regular bomb proceedings under twenty six dollars and a thank you your honor the rest of what you left me in the end so what do you want to do with the court's ruling that the constitution doesn't the government's attorney raised we just like to reemphasize as i think has pointed out in his questioning that those safeguards aren't working for all people there are many people actually as churchmen has mentioned were being detained for in some cases much longer than six months and so we think that as you point out in our papers whatever practical safeguards that the government is putting into place don't those don't trump the constitution's requirements if the if the mandatory detention statute is being applied and constitutionally and we think it is because these people are being held for longer than six months without any individualized process then relief is required regardless of the safeguards that the government has put in place hearing that the place that those hearings should happen is in district sorry it is in the immigration court and it's hearing should happen on a fixed time line at six months to make the process more efficient for everybody involved and we don't think there's anything inconsistent about having a or we don't think there's anything inconsistent with the notion that even the reasonableness hearing has to be individualized individualized peaceable this inquiry is happening at six months but again if you if you decide a bond hearing is what's wally you should just collect from the hearing at this time