the country often as was the case here to facilities thousands of miles away from home not only do the detainees and their us citizen minor children have no opportunity to be heard on the impact of these transfers but they deliver letters even a warning that as my family lives in virginia i think it is in the in the i but that where there was one single detention center thousands of miles away from the place of arrest that may well implicate issues of family unity as to the individuals that are remote to that to that to that location is there some kind of statutory requirement for calm rational arm that person chained to the eye and be detained in a location a particular location no can detain him under normal detention they can detain him anywhere they want can't say with respect no your honor the the well that's what i'm asking where are the restrictions on on where they can detain i think the elements of the due process analysis do you can do constrain and several respects so you think a person who's been detained has a constitutional right to be detained in a particular location i think under certain circumstances yes for example one of those is doing these are civil detainees every single detention affects family unity yeah and just like every sentencing does in a criminal case yes and somebody's taken away from his family and put him in jail and of course the government has an interest in detaining individuals it suspects are subject to removal but here you have the additional issue of the transfers and that is the court the supreme court held in b tec versus jones those are separate issues that just because in  was somebody who was convicted was then transferred to a mental health facility the government tried to make a similar argument to the one here that it's a de minimis transfer the person's already been convicted the court rejected that argument and said no this is a change to the way to the the facility and the type of detention that's going on here and so we are going to review that under due process principles here i think it's amply stated both in the complaint that the subject to tension where that person can be trained specific case where that person can be detained i know that's the does a detainee have a right any kind of right to the  detention facilities there too but my point is you're suggesting that the detainee has some constitutional right to not be separated from his family when easy to trash and the first obvious is he's already been deprived of contact with his family by the attention but then the second question is even once it is in a detention center that's close to home what gives him the right to say he can't be moved to another location for whatever reason the homeland security has for making that decision and it could be crowding issues that could be facilities questions that could be interaction for solo questions with detainees and so forth but take for the courts to get involved in telling homeland security where they can detain somebody based on cheney's allegation that he's been removed tears with that right you just said you said the right that your are arguing is for family members to cohabitate together the question is whether these transfers create such an additional impact on that right that they  does that rise to a constitutional right other words the right oh family integrity title family members to visit detainees yes it does when when be the lack of and person contact as was discussed the the the facts of which were discussed in the complaint alleging the complaint and addressed by the amicus brief in this case when they when they create lasting issues that get to the heart of family taishan your principle a sort of i think we get probably a liberty interest problem here too but i'm also sort of odd to me the suggestion is that if there's any burden on a family to visit in person with their family member of that that's a violation of the right and you say well all of that the state lines seems to be the line you're trying to draw all right but why why does state lines matter right so if you're in texas and you happen to be in north texas it could be closer to be in oklahoma on that it is an el paso right and so why not want a state lines matter and then secondarily and sort of answering that doesn't your theory also lead to this conclusion that any time a family can say well you know yes this is in the same town but i don't have a car and you know public transportation you know is not available from where i live  and so i can't get there like to any time they can just claim it's hard for me to get there maybe financially maybe otherwise that your theory would suggest well they have a liberty interest now in being transferred down to the local jail across multiple state lines but i'll only knowledge that there are certainly instances where an interstate transfer would not give rise to to implicate liberty interests of family unity for example or you making this financial burden are we talking about what it what other words you almost have to articulated fit your own case and then try to assert right that's not real principle what it boils down to is does the transfer suggesting by the way but if they have a right to be heard are these decisions at the detainee participates in i don't want to go to that facility because that facility is out of the way or they don't have good showers there or the reputation for the food is terrible there only goes up so well on those issues that they're civil detainees so if they can make a case that it's a punitive measure then they would they should have a notice an opportunity heard on those issues i think that's clear from the supreme court case law  punitive detention on this particular issue of family unity rights i think there are instances where you know somebody living in northern virginia their transfer from farm built to maryland may welcome that and certainly are unlikely to be able to make any kind of showing that it implicates or family unity on the other hand you can envision scenarios that are intrastate in alaska or another large state that that may well implicate family unity issues i know a lot of that over cousins to third cousins iran's close friends they have that right i think they were i part of the family i think there were need to be a showing of true family integrity implication with or glued spouses parents like maybe brothers and than in the business of trying to determine whether greenville is close enough but charleston is too far for anybody who has a family member i don't think is certainly not in the first instance the the the where you get the authority for that to say that in other words the question is this is a we're looking for the principles and the cases and as you answer these questions you're making judgment calls and say well spartanburg and greenville are close enough together that wouldn't be a problem but maybe charles might be a problem because that really far your honor i'm not i'm not personally making any judgment calls and then it's really principle it's it's within the government's discretion to craft some a some form of notice we've selected do you have any objections is that what you're asking no your honor with respect to what we're asking for is is is and i think this is set forth in the verses cardle that i just like you know the principle you tell me what is the principle you're advocating does a person any person who has a wrong to be in pain have a right to have a hearing no not necessarily if if there would have to be some kind of showing  and right now there frankly is none as i understand it the government does not even take in the information that's necessary to make this determination but there are need to be some showing of that the the transfer issue implicates the family unity rights there maybe in a case where there's there's no family in the area there may be a case where if there is family but there's no relationship implicated there there are numerous instances where there would be no implication to the family unity rights evolved and indeed the verses kartel the this core explain that the minimally the complaining party received notice of the reasons for the deprivation of the right an explanation of the evidence against them and an opportunity to present his side of the story minimally that that's it we're not talking about full blown tyrion sources and in this case there were one hundred fifty people who were transferred at the same time right right and so you're dearie would say that for that transfer whether they were moving across the state between states or across the country they will be required to have individual hearings for every person before they move every single time no your honor there's there's well as every person who has a family member which i'm going to assume is the vast majority of the hundred fifty people but maybe not all maybe some of them all their family members of d but otherwise all of the people that have a family member they get a individualized hearing that you describe i don't think an individual has hearing is necessary again that notice an opportunity heard does not necessarily rise to the well of a full blown hearing it could be a situation where what is it may notice an opportunity to be heard i think in this context it could mean the government takes in information on the family ties to a given area makes a determination and perhaps in writing gives the individual an opportunity to to object to that to that decision and and but right now there is no opportunity whatsoever you have a case anywhere any kind that supports the notion that a person has a right to determine the locations tension i think there are any ground i think there are certainly cases that discuss punitive measures that are taken in the context of transfers i think there are there are also cases that deal with interesting talking about single detention in the united states backs family relations right i mean not on criminals or any kind of contention and that's that's the reason why there's not a single case a reason why it hasn't bubbled up in these other contexts that you good morning or others may please the court like to start with the jurisdictional issue and then address the merits no court has jurisdiction over this case because a federal statute specifies that the secretary of homeland security holds discretion to determine the facilities in which allianz are detained during their removal proceedings square all right rather than drag this out the argument comes down to if we agree to not discretion that don't answer the question the question is whether whether the statute specifies that we don't know that it's discretionary and it seems there may or may not be a distinction in some cases have suggested there is i don't know why you want to come out when when we're talking about a constitutional right of a but also that didn't even contain the word appropriate or the word may or any other word that has been thought to connote discretionary power and for the other questions i don't want i get there's the one question about is this discretionary and use of the word appropriate is  sufficient word understand that argument the real argument that your colleague seems to make against you though is that this isn't about where individuals are halle's this is about the bricks and mortar so when we read this statute right the statute that we're referring to the attorney general shall arrange for appropriate places of detention right for aliens rights i was describing bricks and mortar build them you can buy them you can do all those things and that's what needs to be appropriate for the bricks and mortars not individual decisions your honor both things are true the statute confers authority on the secretary to determine or to find appropriate places of detention the bricks and mortar but also to determine which of those facilities are there appropriate one for a particular alien to be detained to help me understand that that first sentence right says shall arrange for appropriate place i mean the what were the top layers appropriate places of detention for aliens right that seems to suggest buildings and not where the alien is place you think it should not be read that way it should be read in compass both of those decisions yes or are appropriate places specifies authority to determine the appropriate place it's a discretionary decision but i'd like to move on to the to the merits  that the deprivation is intentional and in this case the complaint of most supports an inference that the government is ignoring family unity interests not that that ice is intentionally separating parents from their children in the bruce a palestra analogy the process claim any deprivation of plaintiff family unity interest here was incidental to the government's legitimate interests in detaining the adult plaintiffs during their removal proceedings the supreme court is recognizing the do more case that detention during deportation proceedings is a constitutionally valid aspect of the deportation process and the key point here is that to the extent that plan is out deprivation to the extent that that one exists is incidental to the government's interest in detention and it's really diminished beyond the the deprivation of a family unity assuming the planets out the right to that that  a fundamental right the supreme court has cautioned that fundamental rights must be defined narrowly and although the court has long recognized that parents have a fundamental right to make decisions concerning the care custody and control of their children it has never recognized the broader right to family unity or a specific right of alien parents to be detained in the same state as their children and as your your honour's noted in a pounce are during a palace argument the this state lines line that a palin straw is is doesn't make much sense in this very case if the planet had been transferred from to facilities in in maryland or c in the d c area they would have been closer to their families than if possibly than if they'd been transferred to a facility in in western virginia which would have been within say lines  i also know that in the golen osa case from one thousand nine hundred six this court recognized the deportation of an alien parent does not violate any constitutional rights of the citizen children and it would be sure to think that deportation doesn't pose any constitutional problem  that makes parent child visitation essentially impossible but that transfer to another state which at least leaves open that possibility does violate a constitutional right moving to the procedural due process claim to state such a claim a plaintiff must show that he has a protected liberty interest such an interest in arise from the constitution itself or from a statute regulation or policy and here planets rely only on the constitution itself they say that the d standard which comes from the supreme court's wilkinson case there the supreme court held that a detention condition gives rise to a liberty interest if it imposes a fifth atypical and significant hardship in relation to the ordinary incidence of prison life and even under that standard plaintiffs can show they that they have a protected liberty interest transfer to another facility is not a typical or a significant hardship in relation to the ordinary incidents of immigration detention as the complaint itself recognises interstate transfers are frequent and routine occurrences hooter's the ledge has its right family  hardship a standard sets a very high bar in cases like like better roddie this court held that a transfer to an administrative segregation unit did not implicate a protected liberty interest or that detainees did not have a liberty interest in avoiding transfer to a segregated unit even though the segregated cells were infested with vermin smeared with human your urine and feces and flooded with water so if those conditions were not sufficiently a typical to implicate a protected liberty interest it's hard to imagine even in the context of immigration detention that a transfer to another state would be such an atypical and significant hardship so implicated protect liberty interest government's interest in detention but as you say that as a prophylactic but truth of the matter is that when there is tension the government makes the choice contacts in the federal system you have these no notice transfers that that lead to potentially thousands of miles of distance between the facility where the individuals being held where they've been picked up and where they've been here or made a home for themselves everything you're alleging this and hearing on the right of the state of the government to detain when somebody detained somebody they're removing them from society they're removing their freedom of movement but their and their confining them such that you know perhaps their family relations and the fact that one aspect of that tension is the location tension they make that determination but you're sort of isolating the host the tension transfer away from the family and saying the family and punishment problems school nation problems but we have never seen that i have a situation where taney says i'm transferred and it hurts my family relationship and therefore is unconstitutional remember your honor these are civil detainees they can out and be punished in the system and yes in this relatively unique situation where you have a transfer thousands of miles away from home and family back transfer t sort of the twelve thirty one far not understand your argument in essence to be that this statue is about bricks and mortar not where individuals are placed is that a fair description of what you therefore this doesn't specify discretion about transfers yes your honor in fact of the very next sentence after the one that you were going to you know i got that so here's here's the question one frame the question i got a question is why isn't that issue already been resolved by that the ins has the authority to determine the location of detention of an alien so on the fourth circuit already found that that language it is the authority to determine the location of detention and so the only question we've got  is whether the word appropriate is sufficiently discretionary or not i think the the controlling case law here is actually the supreme court's decision in qana versus holder that really made the distinction between the explicit discretionary authority in a statute versus an individual at the a an agency has discretion i get that it's got to be explicit yeah but what i'm saying is the fourth circuit seems have already said it is explicit right so it said that this continuance but nonetheless the statute itself doesn't explicitly say that the immigration judge can can grant a continuance and that that's the distinction here so but there's a sentence here that says that at least could be read to say that the facilities and when reading context with the very next sentence that talks about what happens when a facility that is quote unquote suitably located is unavailable it doesn't it would be so easy for the congress to have put in there well then you can transfer instead of you can allocate funds to to build another facility essentially that is suitably located so in essence that like the previous force or you case got it wrong it's about bricks and mortar is not about the transfer  i think if if if you're reading the fourth circuit case to say that this provision explicitly defined the attorney general's discretion to transfer then i would say yes again the that he's got it wrong