or does it have any effect on the status practically speaking your honor it means that u s c i s must adjudicate mr nationalization application so that's that the status of that case it doesn't have a bearing on whether or not he point you're here to argue thank you this case concerns one central question whether a federal court can exercise its longstanding authority to issue a writ of habeas corpus at test of a condom to facilitate the testimony of u s veteran because it would be or the writ issuing it would be inextricably intertwined with room proceedings and a denial of parole or a visa that decision was fair because mr marquand this case merely seeks a testimonial benefit to testify before the connecticut state legislature and not an immigration benefit or any of the other benefits that would accompany a grant of the administrative applications that he submitted to the agency the testimony is what the purpose of his testimony is to impart to seek a pardon that pardon would give mr g marco eventually the opportunity to naturalize as a former u s veteran who served during hostilities because he he's subject to special naturalization provisions very real sense data that's correct your honor but that the fact that his testimony is linked to his naturalization shouldn't doesn't raise any concerns under delgado for example because mr de marco as as a veteran as it is or congress has laid out a special procedure for veterans like m who have served during wartime hostilities and these veterans under eight u s c fourteen forty can naturalized notwithstanding the removal order and so in that sense seeking the pardon and granted in the circumstances where the federal prison or for say testimony before a state facility but it doesn't mean that the federal warden puts the person out on supervised release for a day or gives the person a pardon for a day or commutes their sentence for a day know that they remain subject to the restraints that previously they were subject to that's precisely the case here as well mr gene marco would remain subject to the restraints of the agency the agency has the discretion to produce mr  agency though you make that decision we are now ordering you to admit him to the united states and allow him to travel to connecticut to give testimony the order to the agency would merely require that the agency has control of the body and says bring the body to wherever in the circumstances here one of the reasons that the courts did not think this was a custody circumstances they don't have custody of him right now as we're speaking you're saying when he appears at the border allow him to enter that's correct but the the and now we have to consider that on one hand as to whether it's custody but before we get to that how is that anything other than telling the agency to do what it in its discretion decided not to do because mr de marco is not seeking what these administrative applications that he submitted what the agency refused to allow him which is entering the country am i missing something here no your honor but if mr g marco strew seeking the parole and admission to have the sense that or are different things than what he's seeking he's seeking to come to testify before the connecticut state legislature which that and the agency has said no but and in doing so has over ri the decision of connecticut state legislators who have deemed his testimony necessary for a pardon hearing which would provide mr de marco the potentially the opportunity to naturalize but what mr him because we have the evidence that he's committed three heinous crimes while abroad and we just don't want to be of course that's a review we're now considering whether we think that that those facts and circumstances would warrant us denying the rain but on the rich test of economy that's precisely what the district court could do under the twenty factors it would be a review it would be but the court exercise its own discretion in deciding whether to issue the writ and therefore the agency could produce the evidence regarding these crimes and the court then could deny the writ because of these other crimes that the individual had committed in italy for example so that doesn't raise a concern for example that the court would be or that the court would be reviewing the agency records decision rather on that basis are we basically saying we've reviewed it we don't  the court would be taking into account the evidence that the government brought forth to the agency regarding these crimes and then denying it that would necessarily entail review of the agency decision  question in my experience these kind of routes with people who are in custody they stay in custody as in there are there are authorities in his custody day during that time they're going to test with those  in physical custody the the point is or with respect to i think what you're getting to your honor is that mr g is under severe restraints at the moment he's been restrained from testifying which is sufficient for purposes of the test of a condom writ to place an individual in custody but even if not he's been restrained from testifying he's called to a particular time and place which this court recently said in no a cask is a relevant factor for whether an individual is guess shifting representations as to whether it could assist with video conferencing testimony but regardless video conferencing testimony is not sufficient in this case the connecticut state and it's no where it's not the same thing but i very well be an order that the testimony be taken abroad it may be the case your honor that it's permitted in some circumstances but the connecticut state legislators in this case have determined that his in person testimony is required to assess his remorse and credibility as testimony by the witness well first of all the connecticut state legislature through declarations to the district court and through an advocacy brief to this court has represented through senator coleman and representative tom that they have an interest in seeking mr marcus testimony legislature i thought they spoke for themselves may i perhaps i look at that yes they speak for themselves and as the co chairs of client the proper party to see this rather than the body that he's looking for that test because he certainly has interest in the testimony and i would point the court to that there are cases in which another proceeding that's not the reason for which they're in custody currently and courts have never raised in those cases issues of standing etc i could provide the citations later if the court's interested but that's an example of how this is actually come up before and it's not always the body seeking the testimony that good morning your honour's sure he's proud for the government your honour's the district court was absolutely correct in dismissing this petition under eight u s c fifty two a to be for lack of subject matter jurisdiction the second circuit's decision in delgado controls the jurisdiction will absolutely turn on the relief that the petitioner is seeking here do you michael is absolutely seeking an immigration benefit he seeking to enter the united states he's seeking a court order to compel him to enter the united states the district court correctly determined that such an order would invalidate the ices denial of humanitarian parole and his removal order and his his bar of reentering the united states for twenty years until twenty thirty two this court should have fun dismissal for two reasons first the court is without jurisdiction to consider the petition congress has plenary power to legislate on the subject of aliens the federal government fully occupies the issue of who may pass through its borders and second to marco was never in custody he's a free italian citizen residing in italy free to go anywhere in the world except the united states he's not a prisoner that's all that persuasive because if you're rives if he travels to the border of the united states at that point he is in custody if he comes here he's in the custody of only if he illegally reenters the united states without permission he's a mean if he if he does if he comes if he comes now he's been subpoenaed and if he travels he subpoena and presents himself at the border he's in custody at that point that's a connecticut judiciary committee subpoena in that that subpoena is a is a state subpoena and the state subpoena cannot override the federal government's control override he's in the custody of your client when he arrives at the border if he enters the united states but they've denied him permission to any but if he comes you grab and he's in your custody if he crosses the border what you're saying is you may not take custody of him you may just deny him entry and basically do what half to get on the plane back exactly and where does he stay during the period between the plane that he exited and the plane yes to get back on to go to return somewhere else i guess i don't i don't it would if he's he's not if he's at the airport he's seeking to he have to go back where he came from but you're not going to let him into the united states the plane is not for three hours where does he spend  and buy some things at the abercrombie and fitch i'll be back for my plane you let him go he cannot enter the united states let him go or do no hold him if he tried attempted to enter the united states he would be they are in that area it's almost like a limbo until the plane it's going to take them out is that right i believe so but he's not in that area he's in italy is that custody for purposes  at all of the cases cited by mr geo marco deal with people who are already were subject to the court's jurisdiction who are already on parole or probation he's not on  thought about this for a while but if one is coming from italy to the united states country the trends for that does not require he says matter of course if he travels under his real name in under passport is he going to hit some computer signal in italy that's going to prevent him from being sold tickets to the united states i don't know the answer to that yes that might suggest that he never be he never be in the situation we're talking about ok let me let's let that here argument so he's not a prisoner he's not in custody he never was in custody this something or you know you don't need this do you to bring in this case in the the the your client has refused the admission and he is seeking to get our court to overturn that and and and and and and tell the tell your client that they've got to let him in and we don't have authority to do that that's correct and dug out of control and on your fancy argument that he's not in custody that's correct at the border so you don't need to depend on your custody argument that's correct the second circuit's decision and delgado controls look to the substance of the relief they admit that they are that the restraint they identify is the denial of the immigration benefits parole the tourist pronounce before i begin i just want to know briefly with respect to your honor's question about electronic denial outside the us that happened in this case you can look on pages nine and ten of our brief with respect to the e s t a system which m applied for and it's just an additional restraint essentially the agency has placed on the stationery the government's position is case is it's a radical one any time that an individual seeks to wor first applies to the agency to come to the united states and then seeks a writ add test of a condom this court essentially is or any court is deprived of jurisdiction to order an individual into the united states that's the logic testifying the part that they're saying he can do is enter the united states well the agency has said that it believes and overriding the state legislators determination that it is in testimony is not necessary but because mr de marco is simply seeking the writ there's not a question of whether the agency made or a error of law because the writ the court that's correct because in seeking just to testify mr not seeking an immigration benefit to come so freely spend time move around in the united states possibly with multiple entries gratian and if it is to get you to come in for a day and testing for respectfully he's just seeking to testify that's all it is just to come in to do that for a very limited amount of time and that's that doesn't invoke or create problems with respect to the government's plenary power over immigration in this case or the administrative decisions that it  it just because it's such a different circumstance strikes us as absurd but it is the principle any different the principle is different because the court can use the factors laid out in twenty two denying frivolous applications for the writ if in the first instance with the immigration authorities when what it takes is getting the person into the country but general for example again when if a federal warden produces an individual for testimony before the state legislature that's not review of the underlying restraints that the individual is subject to the individual is merely produced before the legislature for the brief period of time in which the testimony occurs and then taken back to the custody that they were in before any difference between the case you're talking about supposing somebody who has been denied admissions says says my daughter is giving birth at a hospital in new york city tomorrow and i want to be there for to help her and to be present at the birth and all i'm asking is just to be allowed to come in just for the day just for as long as it takes even less than a day if it gets over quickly and then go back out  have authority to tell to tell the ins you have to let her in there are differences there because that would be the great writ individual would have been denied to enter the united states and then that that or that jurisdiction there is obviously barred under section two hundred fifty two because the individuals are not going to be able to challenge the the decision to to enter the united states that's not what mr de marco seeking to do here because he's seeking the writ to produce him for testimony before the state legislature and it doesn't challenge the underlying restraints and further i think the interests here are different as well from any of the hypotheticals that the court has suggested here at the connecticut state legislature is unique in that it has the pardon power governor malloy in the state of connecticut can't issue a pardon so that the connecticut state legislature has a great interest in seeing mr g and marco come testify who was a resident of their state for over fifty years before the department of homeland security decided to deport him that interest is stronger in this case and this court should defer to that determination by the state and and order the agency to produce mr g