your argument this morning in case fifteen twelve zero four jennings versus rodriguez mr chief justice and may it please the court congress provided extensive substitute and procedural protections for aliens whom the government wishes to remove but at the same time address the real concerns about recidivism and flight risk by providing for mandatory detention during removal proceedings for certain categories of criminal aliens an alien's arriving at our shores the ninth circuit undid that legislative balance invok principles of constitutional avoidance to require the government to release those aliens unless the government can prove by a preponderance of the evidence every six months that detention remains necessary the ninth circuit's decision is a serious misuse of the constitutional avoidance cannon with respect to arriving aliens there is no constitutional problem to avoid as even the ninth circuit recognized the statute as constitutional in the vast majority of applications in any concerns about outlier cases involving lawful permanent residents can be dressed in as applied challenges and with respect to criminal aliens the text of the statute for closes the ninth circuit's approach and in any event that statute is constitutional as written under this court's decision in do more the net result of the ninth circuit rigid one size fits all rule is is a regime that's at odds with the text of that congress enacted it undermines d h s s enforcement priorities and it creates incentives for individual aliens to delay their removal proceedings went about  and so we're talking about individuals who either had bond hearing and had them denied or have been unable to post bond with respect oh isn't he the constitution entitle to keeping those people if they're not or risk to the safety of the country so are the others however you want to define that danger element so what's the constitutional entitle and just arbitrarily to keep someone who's neither of those two things so with respect to the twelve twenty five a one individuals that justice ginsburg was talking about those are individuals who have had bond hearings and had them denied or have been unable to post bond in the requirement that we are concerned about there isn't the government current there's the burden of proof to show by clear and convincing evidence every six months that they're not a flight risk or not a or not likely to to  have the people in that category that would make them subject to removal and two does the government discretionary so your honor the i think the government's practice with respect to the latter question is to provide bond hearings consistent with consistent with the statute is my understanding and that and so those are people who have had bond hearings and we do provide them there and i'm sorry your first question when we owe so they may be individuals who have who have entered illegally but have not committed the kinds of crimes that would make them  eighty two eighty two or are they or deportable under that would subject them the types of crimes that would subject you to twelve twenty six c for the mandatory detention there and so again for that class we are objecting principal the clear and convincing evidence standard which we think the ninth circuit really had no basis in the statute for adopting and or even provide i write that in a bill hearings it's clear and convincing to show that there is a public danger but only by a prompt preponderance of the evidence to show flight risk in regular bail hearings so your honor it does vary by the type of crime in some cases it's the alien who has to i'm sorry in some cases it's the criminal who has to show by a preponderance that he's not likely to who is found in the united states illegally has not been committed are they held under twelve twenty five b or are they held under twelve twenty six a so they are held under if they are not if they are not detained within one hundred miles of the border or within fourteen days so they've been there longer than those two things then they're under twelve twenty twelve twenty six border now fourteen how many miles with one hundred miles of the border and two hundred miles from the border that's possible who's been there for twenty years they would still be held under twelve twenty five so i'm sorry rather they would be held under twelve twenty six a so this is on  they if they hadn't committed other crimes and so therefore we're not subject to the mandatory detention under twelve twenty six i'm assuming no criminal you know ok talking about an alien who has come into the united states illegally without being admitted who takes up residence fifty miles from the border what the answer is they're held under twelve twenty six and that they get a bond hearing u at page one fifty six and let me finish up tonight your question earlier you said you were objecting to the burden of proof yes or are you objecting to the concept that a prolonged detention without reason is not appropriate for these aliens so your honor we believe that they do so and they don't think it's being flight risk or danger we believe that the whatever due process  rights that they have are met by the statutory scheme which gives them an initial bond hearing and then allows them if there are changed circumstances to seek a redetermination except they're not about to satirize that additional regulations says that the length of detention is not one of the factors that justifies reconsideration that's correct your honor under our so if these are people who have been here for decades let's say don't you think due process would require some periodic review to ensure that these people are properly being held so your honor we don't think that but two things first of all the ninth circuit went beyond that and up and imposed a clear and convincing evidence standard which we think really does materially change the calculus and change the government's burden there and second we do think that the initial bond hearing in conjunction with the with the opportunity to bring forth change circumstances and that ma regulations are saying that you don't consider the length of the tension so you're that's what a judge does in bail hearings that's what a judge does in almost every other tension which is at a certain point you or your calculus changes the balance changes when the detention becomes a result of your honor so if i claim that essentially if i could step back we do think that the way to think about the case for for the people who are not in the arriving aliens category is that the as long what the court said in the more and i think this is the focus of justice kennedy's concurrence in the more that if the purpose of detention is being served that the government is moving  reasonable reasonably quickly to stew to accomplish removal and so that we're not in a situation where the end of the government detention can't be observed then the then absent absent very unusual circumstances brief indicates that you think that there are some constitutional bounds and so i'd like you to talk to me about what those constitutional bounds are and and when a judge would find them so your honor we think the constitutional bound is  standard that justice kennedy's concurrence set forth in do more and we think it is that we're going to be as as he said there were there to be an unreasonable delay by the government he said the ins but by the government in pursuing and completing deportation proceedings it could become necessary then to recall inquire whether the purpose of detention is not to facilitate deportation but for some other reason so it seems to us that the analysis that a court would undertake is has there been some sort of unusual situation or  part of the government or delay on the part of the government that suggests the purpose of detention was not to effectuate removal what would happen if what happens if you can't point to any particular evidence of government misconduct but that you're in a situation where the government just has very very big backlogs and everything's taking a long time so let's say the average would be that the government wouldn't make a decision for three years  could the court simply say well three years is too long doesn't really matter what kind of evidence you have three years is too long so you're isis i think our position in that position in that situation would be that that as long as the government was diligently i mean if it were twenty years we could go on then of course that might be a concern that in fact we were no longer trying to effectuate removal i think we would make the argument in the three years your honor was hypothesizing but that's not the situation we have here and it's been a opinion are those words only yes only correct in see only of the program now you say well it's not really only there are exceptional circumstances where he's been there for twenty years and we haven't started removal proceeding or let's say he has an emergency operation has to be in the hospital we all can exercise our wonderful legal imaginations and think of weird instances where it's going to prove that only if it isn't real literally only if witness so your honor i want to be clear about what i'm saying there i don't think the attorney general has discretion to release in the situation i was just discussing which i know i know that i think that's a constitutional requirement in other words due process would be implicated at  that point so i'm not saying that at some point the attorney general has discretion to release the statute is mandatory and we really read big that says only only if you go to the witness program correct but my point was and you did it accidentally but on purpose you said well twenty years would be different i did it and to be clear i did it as a matter of constitutional law why do it isn't that why not just say because we like all the many things in the law words like any o if are always interpreted in light of unusual circumstances not being absolute you get something unusual right ok now why not do that rather than appeal to the on experience over a long number of years where congress had tried to deal with the concerns about recidivism in flight for criminal aliens to a number of different mechanisms and what congress found was that it was very hard to predict and it had very serious consequences in congress opted for a categorical judgment i suppose it's an area where your safety valve or the bill ability of habeas corpus might come into play absolutely your honor and i think that goes into the interpretation of constitutional avoidance both with respect to criminal aliens and arriving millions what congress understood was it was legislating against the backdrop of habeas which provides the kind of fell so if the justice kennedy had identified into more and therefore congress the legislated on an absolute absolute text and that doesn't admit for the kind of exceptions that i think your honor is pressing i think if i could go back to the constitutional point because if you put it to more aside i think we would all look at our precedent and we would say you can't just lock people up without any finding of dangerousness without any find them a flight risk for an indefinite period of time and not run into due process now you have to more but the more was based on the assumption that it was going to be a brief time it was based on statistics that have now proved to be inaccurate and the question is why the constitution itself and you do it through proceedings or whatever the procedure is but why the constitution itself does not set an outer band in the way that we've consistently required for example civil commitment cases right so you are you've packed a lot in there and i'd like to i'd like to take on a number of things there but the answer to your last question is that i don't think it's the focus on the amount of time that's really the way the court should look at it here and this i think was the insight in justice kennedy's concurrence in war the amount of time increases here in part precisely because as i indicated at the start congress has provided a substantial number of substantive in procedural protections for individuals they have the right to lawyer at their own expense they have the right to an interpreter they have the right to present evidence and to gather evidence and to use subpoenas to get evidence they can appeal to a they can appeal to the court of appeals but with that process comes time and i think a focus on just the length of time without the reasons for the delay without looking at the fact that aliens routinely and understandably file for continuances and to impose a rigid six month rule like the court recruited is really a mistake with respect to do more than i really would like to to address your honor's concern there on a number of situations your honor is right that the statistics we provided to the court were inaccurate and we apologize well i wasn't i wasn't blaming you but as i think it was partly the statistics that were provided and partly what the court did with them it doesn't really matter who was to blame or who wasn't to blame i was just suggesting that in fact the more the more says that the average is five months it turns out that the average is more like a little bit over a year so your honor is so i the reason why i think the more still is good is is this reason i think the more rested on two pillars first was the judgment that that flight risk and recidivism are real problems and was still being served the purpose of the detention was to effectuate removal and the and the detention was not going to be permanent and it was not going to be indefinite those are true it is true that this court assumed incorrectly  that the length of detention was five and a half months but in kim into more itself the alien had already been had been detained for more than six months for one hundred ninety seven days and the court was sending that individual back for an i j hearing  and a appeal and so even under the court's mis erroneous assumption that there was going to be five and a half months tacked on we're talking about a detention for a year now with respect to the time limits there are not trivial these are serious these are serious matters and when it's not the aliens fault and you seem to suggest that if budgetary matters or personnel matters are wonders inflicting that delay that that's ok is there months to give them another day at what point does the government's behavior come into this analysis so your honor i think the government's behave intentionally or not i mean i would assume that if the government was just delaying n the so a couple of points on that there are first of all the it is not our view that most of the delays that we're talking about here in the lengthy cases are situations that resulting from resource problems or things of that nature a lot the the record indicates that aliens routinely see continuances and they see multiple continuances and they do that for a good reason which is to build a record what most of the aliens here are seeking is discretionary relief and if they're seeking discretionary relief then they're going to want to build the record so i don't think the record is is that most of the delay is i just a lack of immigration judges would be a resource and indeed you are expedites the proceedings that are involved detained aliens and so that is a a a a government policy also deal with assuming assuming that there is a constitutional limit of the type that's been discussed is that do you think fact can be addressed in a class action or is it something that can be addressed only in individual p b s case so you are i think it's clearly the latter and we really think that that is one of the major flaws of the ni circuit's decision is that it adopted a class wide rigid rule that applies to aliens no matter who or what is the cause of the delay no matter whether the alien is a criminal alien or arriving elian no matter whether the in a seeking discretionary relief or not discretionary relief that one size fits all approach is not the right way to do it the way to do it is in individual as applied challenges through his b s proceedings which is what the but i guess i don't quite understand that why couldn't a court whether it's the ninth circuit or whether it's this court in revealing the ninth circuit say here are the constitutional guidelines here is the way to win and might it might not be a one size fits on might be a presumptive limit at the ability to go beyond that  have some guideposts that everybody in the country would know to follow rather than having one suit pop up here and once here in another in another place and everybody would be treated differently that does not seem like a good immigration system so the first thing i would say your honor is that the one thing that we know shouldn't be the case is what the ninth circuit has done which is the opposite of that which is apply a single standard to everybody regardless of regardless of the cause of the  gets at the very concerned that the court that the dissent inside the dust just is going to dissent and then the majority in the in in more highlighted which is that kind of rigid rule creates an incentive for ilian to delay and that we wouldn't is meant and presumptively that is pick a number nine months a year so you're right it's months whatever something pretty reasonable but only presumptively if there is some exceptional ok sorry but we don't think that's the way the court should do it that what the court is what the court has generally done in a due process situation is have as applied challenges and we think that's the sensible well given the yeah mendis variation in a class action the court has to grant or deny relief and i don't know what would be the relief if the real court says well we're not going to say you know what the situation is going to be for any of the members of this class but here are our thoughts about how individual determination should be made i agree with that your honor and that is why we don't think that's what the court should do i think and so i mean to be clear i think the court has the power to give guidance but we don't think that that is the the approach that's most consistent with the due process clause or the way ninety percent of the i j a hearings are done within fourteen months and ninety percent of the b i a proceedings are done within one thousand months and those what i think those we would those we would offer those to the court not as  indication that the due process clause has been violated but those are situations in which one might reasonably in a do in a as applied challenge take advantage of just take justice kennedy's opinion up on its standard and  is that that is part and parcel of an overall scheme that offers tremendous process to the individual alien and that part of the reason for that but too late this is not a process at least with respect to twelve twenty six b is to ensure that the person is not a flight research danger your honor is it is to effectuate congress's categorical judgment that those either that they that they there is a risk a flight risk and a risk of recidivism and that it's very hard to predict those because no i have a couple of questions he would like to ask actually it's a complicated statute and you can correct me if i think you have some extra you know i'll give you extra time to answer the questions  third talking about three categories the first category people who show up in the border that's mostly called twenty five look at that i don't see any words there that would prevent interpret in the statute from saying of course you have a bail hearing after six months and under whatever standards i'm not going with the ninth circuit standards etc i don't see the words i put that in your mind as you're going to tell me the words in a minute but the more important part i think is this criminals part and there i've divided my mind into three states it's three stages stage one the person is released from jail let's say in the statute says attorney general pick him up and then there's a period of time where he says i have a right to stay in the united states and the a g says you don't and during that period of time we have the only if language and then we go to the period of there is a final removal order and that's a ninety day you are and there i see no way around the statute i agree with you that ninety days you cannot get out of the statute i mean it's death then the removal period ends and we're inches out of vegas and unlike you i don't back and did it i wrote this out because thing i think it said six months or high pressure on the guy might be wrong i'm often wrong in what i think i said all right so so we're in the first part now on that first part it's a pretty odd statute that can say you don't have you we can keep you for two years you know or three or four you've just been out of jail hey your terms over your punishments over but you've got four more years here of punishment while we try to get to stage two which is called the removal orders that what bothering me it is bothering me that as a lawyer it produces an odd statute as a person who tries to interpret the constitution i say what happened to the notion that you do let people out on bail when in fact they are not a flight risk and how can they be punished for four more years maybe soko institution maybe there's a way around that only if language but the concern is the same so now you have all my questions out there and i know there are there are there are do what you can ok and i'll try to be i'll try to be brief because i'm cognizant of the chief justice is generosity here i do think that the statute squarely for clues is it at both stages your honor that we're at page one fifty six a of the appendix to the petition the statute starts out twelve twenty six say that the alien may be arrested detained pending a decision on whether the alien is to be removed from a statement a but then it does say may there but then it says except as provided in subsection c of this section and pending such decision the attorney general ma chief justice in may please the court i actually think the dispute between the parties is narrower than it seems based on what my friend the acting solicitor general has just said because we agreed that length by itself doesn't make detention unconstitutional we agree that there doesn't need to be a hard cap on detention we're just talking about the need for an inquiry that is the need for a hearing that is individualized rather than a categorical presumption that someone is a danger and flight risk what are you making a statutory narrower because really the primary focus your honor is about whether the mechanism for implementing that whether it's constitutional or statutory constraint has to be hey b s or instead is just as kagan suggested it could be some or as i understood i understand that but to me at least it makes a difference whether we're inter breeding the statute or whether we're interpreting the constitution i'll tell you on the language of the statute i think you have a pretty tough you have a pretty tough argument your honor we can see that as avoidance isn't just sort of well we really don't think we can interpret the statute this way but we don't have the guts to say that it's unconstitutional so we're going to put the two things together and say well by constitutional voidness i don't know what i mean this is what it means underst only if well only if applies to the initial detention it authorizes people to be released even immediately after they're being picked up if they are in the witness protection program but it still doesn't speak clearly to what happens when detention becomes may you see given permission and is as you just pointed out there is may may may may may but then in the criminal side on the criminals i'm not talking about people the border i'm pretty strong argument people border but there it says the attorney general may release an alien described in paragraph one those are the criminals coming out only the minute protection program he says how do you get around that i understood your honor i only want to say one more thing about the statute because i don't want to belabor the point but you know five months four months after there's a virus decision congress passed the patriot act the patriot act didn't only it clearly authorized long term detention and six month intervals it said six months it did it not only in post order cases which was speaking directly to divide us but also in pending cases that is cases like this one so subsection a seven of that statute authorizes long term detention six month intervals while the case is pending and it authorizes substantive review over whether the detention should continue whether the certification remains valid but only in national security cases and that's the rest of our statutory argument and that provision that specifically authorizes long term detention but limited to national security cases in pending cases really makes makes the government's interpretation hard to make sense that because why you know under their view they actually have more authority to detain people with simple possession offenses or with petty theft than they have people who are accused of terrorism grounds and they actually have even more authority in terrorism cases under twelve twenty six c under c one d than they have under the patriot act the congress gave them four months afterwards are you saying that twelve twenty six and  the patriot act provision makes the government's interpretation of twelve twenty six c superfluous yesus to terrorism cases to all the terrorism cases that is cases where a person is in deportable on a terrorism ground they already had on their view more authority in one thousand nine hundred six than congress although there are different there are quite noticeable differences between the two provisions so i don't know how far this argument can go for one thing the list of twelve twenty six a a a three a there are listed one two three four five six categories and reasonable grounds to believe so it's a different standard yes all of the government interprets the language you read about in it is it in most of all just to mean that they believe it whether or not is can charged but i don't want to belabor the point your honor we have to establish that there is a serious constitutional problem there's no question about that can i ask about your such a joint operation on twelve twenty five yes the so that's the one where it says the alien shall be detained for and then one provision says for further consideration of the application for asylum and the other says for removal proceed and then you say that that that applies only until the relevant proceedings starts what applies after that in your view and where would we find it in the statute it's twelve twenty  six a which says the attorney general made attain for may release pending a decision on whether they really have very odd interpreted for a proceeding if i tell my children to go visit them for christmas that doesn't mean i have to leave on christmas eve it is not your i would hope that's your interpretation no because sometimes four is read that way other times for me for the purpose of and the way you know that in this provision you're on this too as you know it first if you are denied a credible fear interview when interview are found to have a significant possibility of prevailing in their asylum and i understood i understood the authority ends once the proceeding begins then you go to quote twenty six that's right then you go to trial twenty six and you still had to tension authority and here's the i mean to me that's a very odd interpretation of the statute while you're on the other argument for that interpretation is that the government already provides bond hearings to people detained under color of that same statute that you're talking about the one which says you shall be detained for further consideration of the asylum application so if you cross the border in the desert and then are arrested and then pass or credible fear interview the government you're still under that same status shall be detained for consideration of this on the application the government gives bond hearings to those people and it doesn't wait for six months it gives it to them as soon as they are in the immigration court and therefore pursuing the removal proceedings so here we have a very straightforward application of harvey martinez you've got the same statute it applies to two groups one are class members who present themselves at the border the other are the people who cross in the desert the government is already providing bond hearings to people who cross in the desert and that statute doesn't distinguish between the two what happens i would have them to present themselves at the border then the one of the desert and they say i have a right to live in the united states you've made a mistake in respect to me you know what happens to that person if you're if you're crossed in the desert you get a bond hearing assuming that you have stablish and you could be summarily removed but if you horace but if you i don't want to leave i'm a ri and then you get a bond hearing under twelve twenty six a if you establish that you have a credible fear of what happens if you're at the border when you come up and you don't get a bond hearing instead you're only subject to the parole process under which you never get a hearing on danger in flight risk th deportation officer the jailer is the one deciding whether you can get be detained even for a year and what's the language of the statute you believe the government points to to say you never get a bond here i mean is this shall be detained for is justice kennedy said it's true that's what the statute says but they're reading that language to permit bond hearings for one set of people who are detained under it and if you can read it for them you can read it for the other people this is the the i is decision and matter of x ok i'm not going back to the constitutional question we were discussing earlier and honor i think it's actually critically important whether the enforcement mechanism for the right we're talking about here is available to immigrants in immigration court directly or instead has to come via hey b s and the reason why there's two reasons first this is a class of mostly unrepresented people who are obviously not familiar with our legal system the vast majority are and we know both from this record and from experience for years in the lower courts on this that most of them cannot file hevia petitions so if you make the only enforcement mechanism hey vs you are aiming cannot as a practical matter as opposed to a matter of yes or a no suspension problem here as a practical matter they cannot and we know this is a matter of experience in addition behaviors cases take months to decide there's a particular and in fact in the in the lead in circuit they take about nineteen months in the third circuit which is a fastest circuit they still take almost six so as a practical matter it's not a meaningful remedy for a prolonged detention if that's the claim that you're bringing the second serious problem with it is that this court has never before held that a due process right can be vindicated simply by the availability of habeas i mean think about it pretrial detainees they have habeas why do they  a bond hearing in a matter of days civil commitments they they have habeas why is there a requirement that you have a hearing at the outset of civil tension so it would be a fundamental shift on sunday ari and mr your argument they have hearings why d dependent on their filing a petition the due process clause gives that right and so the hearing has to be provided whether or not you file hey b s and so similarly here if the due process clause requires a hearing at some point in time it should require that hearing whether or not th has a lawyer who they can get to file a petition but suppose the due process clause requires something a little bit more complex than a simple date suppose that it does require a little bit of individualized determination as to whether it should be six months or in a particular case a little bit longer how does that get decided and what vehicle but i still think the vehicle would be this case and i don't think the fact that it's the class action is a barrier to that and we say we have sought relief on behalf of people detained for years and i this court said for example that the detainees who is engaged in dilatory tactics is not entitled to a danger and fires determination in their case that relief that would then be available if you still get the inquiry right there somebody has to look at the case at some point and see is this a case where there's dilatory tactics or is this a case where actually the person didn't spend even a day in jail or has seems to me to be a strong argument against using a class action as a vehicle to resolve these questions i mean if the you want to you want to farm on an alternative ground which is that it's unconstitutional so i don't know how far you can get with that argument we could if you want to be very strict about what's before us we could simply say the ninth circuit's interpretation of the ninth circuit interpreted the case in the case that's here we do not have the constitutional issue before us we have argued in section one of our brief that you're correct that the ninth circuit didn't rule on a constitutional ground absolutely on the second point i want to make though is everybody in the class in our view is entitled to an inquiry someone has to look at the detention and decide is this a detention which remains reasonable does it continue to be reasonable in relation to its purpose that's argument you know if many of the people under the to require inquiries every case it's perhaps i'm wrong but i would have thought he was either you can be detained or you can change as opposed to procedural across the board requirement of hearing no your honor for example the the court requires hearings that particular case was a b s but it sets a due process rule that applies in other cases the court has to determine the conditions under which the detention would be lawful and as i said to consign individual detainees cia or the ins whatever they're calling it was to created it ministry to process so why is the one here in adequate when our we have very few quarrels with the twelve twenty six a regulations that govern people yes you're i mean our view is that on the briefs we believe the burden of proof should be on the government by clear and convincing because that's the standard used in significant operations of liberty and for periodic hearings and such but the most important thing to us is that it be a meaningful hearings there has to be a way for the detainees to raise i was not spend even a day in jail i was not sentenced even a day in jail and yet i've spent ten months in immigration detention or mr rodriguez i came here at the age of one i don't know anybody in the place i'm from so i'm not a flight risk or i'm going to win my case because i'm eligible for cancellation of removal which is true of more than half of the mandatory subclass they have to be away where they can make these kinds of argument why are those arguments not available in the administrative process they're there available under twelve twenty six and if we could get everyone under that statute then they would be available and i'm looking just at that stature yes i know you want to look at twelve twenty five and twenty six  i'm looking just at twelve twenty six a yes or our position as all of the class should properly be understood receive the benefit of the twelve twenty six a procedures and are only disagreements with those are in section three of our brief as i said the burden of proof if it was an immigration judge now absolutely not an immigration judge is all that we are seeking and with respect to that your honor and that's not what exists today correct for it exists for people detained under twelve twenty six a as they understand the statute but it doesn't apply to the people with criminal convictions or i'm trying to concentrate on twelve twenty six ok right what's wrong with the administrative process for as it exists today only in that the burden of proof in our view should be clear and convincing on the government and that there should be a periodic hearing or as your honor to just if you take make them say that length of detention is a relevant factor so that you can get a new hearing just based on the fact that the time has passed that would help but to be clear your honor well over half of this class is not under twelve twenty six am now right so we'd have to win for it to be meaningful relief for the vast majority of people we'd also have to win that one detention becomes this applies to everything but the states it's pretty clear ok so in that history and let me go back to them the constitutional discussion that we were having earlier my friend had suggested that that hearing that's available even perhaps only as a matter of the due process clause that is sufficient for it to focus on whether the government has engaged you know has run proceedings very quickly so that if a person is engaged in good faith litigation of a substantial defense in the government's view as i understand it that's a sufficient justification for detention and that is actually the most serious problem with their view on the due process clause because if a person has a substantial defense and they're litigating that in good faith that does not necessarily mean that their detention is serving a reasonable purpose in fact it's almost inversely correlated to it right i mean if the person has a substantial defense then it's far more likely that they are not a flight risk because they're going to want to go to immigration court to maintain their immigration status and similarly if a person has a substantial defense that means they're not in a class of people that congress wanted to mandate the deportation of which probably means they have a less serious crime if you are an lengthy litigation but the judge can say this is done in bad faith or it's dilatory it's just a very lengthy and it keeps going on and on and on and on and then you have a flight risk that someplace on the scale when you have a risk to the community that someplace on the scale how can you address how something like that can come out should come out with any kind of a categorical we don't advocate how that person releasing that person on a categorical rule we're only talking about getting the inquiry so we agree that is a very individualized judgment that the judge has to look at how serious is the criminal history here how strong are the equities as to flight risk if you do say or the ninth circuit says it has to be clear and convincing evidence which is higher than the flight risk standard bail case it is your honor although remember these are only hearings happening after six months so you know you get that bail hearing in a matter of days in the criminal context but is this just so you know the people who want to come into the united states if they're in the desert and they go back because i have a right to live here they do get a bail hearing so the whole thing is taking a long time least have a bail hearing if they're at the border and they're coming in the same statute twelve twenty five they say i'm not going back i have a right to live here and then there is no hearing that's correct your honor how can that i don't get that because what it says is made throughout until you get to the words shall be detained for a proceeding under section twelve to nine is that right that's correct i look up section twelve two nine eight and section twelve two nine and eight which i've been reading doesn't say anything about keeping them in detention so why isn't it the simplest thing in the world once that person is at the border and they said we're going to tenured for twelve twenty nine a you say how the twelve twenty nine a tomorrow and if they don't have it tomorrow then you say but i'm into the twelve twenty nine a just hasn't been scheduled yet and therefore you get bail after six months have you tried that one i mean that as i say that's our statutory argument the government says that the regulations even though even though the person's in front of an immigration judge the government says that the regulations prevent the immigration judge from having the power to release the person on bail so even though he says regulations it's not the statute so we could say i mean i'm just saying you're going to agree with this which is the problem i need a disagreement but the you could say they do it for the desert the language doesn't forbid it it throws you into twelve twenty nine a it's possible to have to interpret the statute is saying for purposes of a bail hearing that twelve twenty nine a starts tomorrow yes ok so we could do that one on the statute if it is correct that you should not hold a person for years in the united states without giving him a chance to get back to his freedom through a bail hearing if appropriate ok see i'm still stuck on c and the reason the the value of a statutory interpretation is that we're dealing with tens of thousands hundreds of thousands or millions of people possibly and it's an administrative agency organization and they need to rule they need a rule and if we can interpret the statute you can give them a rule and that rule then can have lots of discretion in it through bail hearings etc but i haven't heard from you yeah what ice ice i see no way if you want to tell me that i see no way of getting around the ninety days that ninety days and it seems to me to be they don't get a hearing during the ninety days the removal order is in there they can say your honor those people are i want indulge you with disagreement except on this one between the time they're released from their punishment to the time we have the hearing if that goes on for ten years you know you can't love the person as opposed be punished for six months not for ten years and oh i got your argument but i to know what do i do with the language right ad and the you know language counts so i thought to work on the language on her first assuming nobody is willing to accept twelve twenty six the can be interpreted in every court of appeals said that it little bit surprised that you answered the question that way because it seems to me that it's quite obvious what the court below thinks as to the constitutional question where did they get this from except as an understanding of what the constitution required yes your honor the court i think well maybe they didn't that they had seen prolonged detention problems for years they had decided in two thousand and five that mandatory detention applied only to expeditious removal proceedings in their continued to be cases floating up individual cases for years i had a client four and a half years detained while the government was appealing seven years and that was part of why the court thought that we needed a system whether i mean i would suggest even if it's on due process grounds you need a system that is administered ball and you know that person doesn't even know the judge doesn't know when to pull the case off the shelf and look at whether or not to conduct in korea justice alito that you were talking about unless you have some kind of trigger that allows them to do that and the time periods and if you look at say the third circuit experience right they said in two thousand hearing under the injunction you should look at to conduct an inquiry to see whether or not danger a flight risk actually justifies the continued detention of this person it's not it's not a cap on detention at all and as i said many people don't get so i think it's quite consistent with the approach that the court took in survive this but you know going back to the question of hey vs universes the constitutional rule your honor in the third circuit four years later there are still seeing individual habeas is there's massive disagreement in the lower and amongst the immigration judges about you know how you count this or how you count that and then they say you know maybe it would be good to have a nine month to twelve month window the eleventh circuit is the same thing in the sopa decision is that we want to give some guidance because it can't be that you have to file a hevia petition just to get the inquiry that the statutes whether and in my view even the due process clause should require and so having some kind of guide even if it's not as fixed as you have to do it within two weeks of six months you know some kind of temporal limit so that the person can go directly to the immigration judge not to try to get to federal court which most of them can't do go directly to the immigration judge and say can you please now conduct an individualized probably is that looks an awful lot like drafting a statute or regulation and  it seems to me that that's quite a leap we our job is if that were to read the statute and if it presents const if it's unconstitutional that's our job but we can't just write a different statute because we think it would be more administered your honor i think it's not that different from what the court did in a number of cases in riverside the mclachlan in the court said six months is the maximum time that you can go to prison without a jury trial and here is just a similar kind of a minister will rule you know even  context of deciding the constitutional question we put the statute i know you want to do and that's that's fine i'm just saying it's pretty unusual for us to do that in the first instance but when you're talking about the administer bill rule that argument is being made on the assumption that it's otherwise unconstitutional the cases that we cite in our brief or all constitutional administrative rules that have been got into a fact the ones that i was mentioning you know i actually thought that there was a colorable claim that because congress specifically authorized six months of detention prolonged attention national security cases you could actually read the statute the way but obviously that doesn't seem to be a particular persuasive you know the last things i'll say here i know my time must be limited  on the relevance of what we did a few extra minutes to thank you thank you so much mr chief justice if you the record is replete with examples where the immigration judge makes such a big difference because they're just hearing where you can second guess that makes you not second guess you know assess the decision of the jailing authority so you know the married a declaration at joint appendix page five eighteen is one such example is a person with a nonviolent criminal history has detained for three years he finally gets the individualized assessment he gets out on five thousand dollars bail you know exhibit seventy three to my declaration this is this ethiopian asylum seeker he's passed the background check he's passed a background check and he's found to have a significant possibility of asylum and now he's going in front of the deportation officer who's conducting this parole review and the deportation officer just chooses not to believe him when he finally gets in front of an immigration judge to grant him asylum and the immigration judge says but you've already passed a background check and you know there's no question from here and we have a witness now because we're having a hearing that this person actually is who he says he is and that's all we're talking just a minimal requirement of a hearing in front of a neutral decision maker for people who have been very very long periods of incarceration and that minimal requirement we think is available under the statute and also into the due process clause thank you counsel four minutes general thank you mr chief justice i'll be brief i wanted to make first a short point on the patriot act to shore up the construction of twelve twenty six c there are two as justice alito suggested two fundamental differences with the patriot act the first is that it allows for a certification it has to be by the attorney general or the deputy attorney general can't be delegated but then that is not reviewable that's very different than the twelve twenty six c where the alien gets a joseph hearing and it's subject to be a review the second piece of the patriot act that makes it very different is it overrides oddly das and actually permits the attorney general to provide for detention even when there is no foreseeable likelihood of relief and so it's a it is a situation in which there is of course some overlap as one would expect in a situation in a series of statutes dealing with terrorists but the there is no surprise flutie in there dealing with very different things it gives extraordinary powers to the attorney general for a limited group i also want to touch base on the to address some of the statutory arguments with respect to twelve twenty five i don't believe it for the reasons justice kennedy said i don't believe that the statute really is ambiguous it says and this is on page one fifty two of the  alien shall be detained for further consideration of the application for asylum and then on one fifty five it says the alien shall be detained for a proceeding under section twelve twenty nine and i was just i was you know i wasn't i wasn't thinking of necessarily asylum seeker i was thinking of a man who goes to a foreign country who's an alien he has a family in the united states he comes back and he says i want to go home and the immigration officer says no we're going to keep you locked up for five years because there was something wrong with your initial application he says no there wasn't they say yes there was so i'm simply asking if that human who has a family in the united states is in the view of the government locked up for five years without any hearing whatsoever without any opportunity for bail even though he can get out of it simply by abandoning his family and returning to another country is that the position of the government as to what this means so your honor of the position of the government is that that individual would have an individual lies as applied challenge in a proceeding but that is not what should don't drive the statutory interpretation which is principally what we're talking about here and not only is it correct is that correct for the reasons justice kennedy suggested about his his christmas visit but that has been the interpretation of the statute of that language in the statute since  invoke the history it's because that is how it's been understood for one hundred years and for literally one hundred years or ninety nine years and and and it has always been understood that the exclusive way to get into the country while those proceedings are pending is through parole now the government does use parole for a lot of these individuals and so they do the government is not saying that these individuals don't get any process they actually get processed they have an i j look at their their credible fear determination they have a lot of those individuals are paroled in but we don't think you get there as a matter of statutory is that drugs are illegal eleven eighty two d five is a separate parole