is a court counsel my name is jason neilson i'm here today on behalf of mr lardy at the who cannot be here today as he's been removed to mexico and the reason i am here today is to discuss matter it discusses the nationwide injunction against the current administration's attempt to engage in expedited removal expand the executive branch's  well for the determination of whether or not the prior order was correct is a gross miscarriage of justice and that is within the agency's purview and i would argue that should be given  determination of the order you just jumped about three over three cliffs in that sen five as that kind of gigantic exception well i can't i cannot find a supreme court case on that what i do find authority for your honor is that that in the case i just referenced the recent decision o and thirty one in hearing cases arising under the expedited removal provisions in title eight and therefore the district court did have jurisdiction and that is the logic argument but a passage just says that there needs to be substantial evidence to support that removal order when you get to the reinstatement stage right that that all you look and say is you know did he reenter the country illegally and we you know there are several different things we look at your argument doesn't square with our precedent i don't think your honor that argument i understand exactly there are three things there is a person identified right was he prior previously removed did h enter the united states yes they exist however when you have such an infirm removal order which is the two thousand and three removal order in this case that it qualifies as what the agency has call miscarriage of justice here he was charged in the initial case in two thousand and three as an excuse expedited lee removed from the united states as an aggravated felony having committed a serious drug felony my understanding of this gross miscarriage of justice is applied before some legislative amendments so you're right there is some case law old old case law suggesting that a gross miscarriage of justice can get out from what i just talked about this the substantial evidence standard but i haven't seen a case in having you know how long two thousand and twenty five years since they changed the law so what do we do with that we look at the cases that were existed before the change the law and square with the laws a change in the unconstitutionality of his unfounded unconstitutional no no no wrong not to bring the charge but to have him removed based upon the charges why is that unconstitutional as opposed to just wrong because an expedited removal proceedings are not  issue is that one of them for them correct would have been challenged along before why does that somehow entitle him to the relief that you want now because he is b he was removed now for a crime he did not commit was not arrested for was not charged with we don't know what he was arrested for charged with or moved from and that is grossly unfair to him his family his children and she's being in what may be true but you've got you've got to put it in you've got a fitted and under the immigration and nationality act in the a in a a claim or appeal it within our jurisdiction or the district court correct in that is what we say is government points to nothing saying he was ever but you're right it really aren't yet a chance to i mean you personally but he had a chance to challenge this within what was it thirty days of the final removal order and he didn't challenge it and now you're saying we should exercise general of federal question here doesn't that conflict with the thirty day requirement that we have in the statute itself you know ya know in the statute it also there is also a provision for a sixty day to tack under  discussed in this new york case out of the d c of d c that you have sixty days from the implementation of agency regulation or mandate to attack that implementation that's what we're tackling your nineteen and so that is where we find jurisdiction that sixty day window so to say that the implementation in this matter constitutes a gross miscarriage of justice and that you're right that that's an implementation i promised still having and i don't know that i agree with your argument but even on its own merits i'm not sure it's right which is the implementation of the two thousand and three removal order was when he was removed not it was reinstated so i still don't understand how that would allow a collateral attack well the removal order in two thousand and three was on the merits the implementation here is using that order to trigger the expedited removal and reinstatement provisions under the eye on me and that's where it is being implemented now i want to get to him when it gets used again you would say it's being implemented again is that the argument you're making yes your honor it's being used again under a different section it's use under expedited removal proceedings for reinstatement as opposed to when it was st used in two thousand and three expedited removal as an aggravated felony not afforded discretionary remo charge and i would reserve some time for rebuttal of the lesser is another question at the moment thank you reasonable fear the court should reject his arguments his challenge of the removal order is barred on multiple grounds and there is no basis for disturbing the negative reasonable fear determination the petition for of you should be denied and the dischord decisions in the direct appeal should be affirmed i can hit your honour's i think the preliminary points about why there is no attack available on the two thousand and three final removal order and i think i can also hopefully bring some clarity on the sixty day  on the as as an initial matter the make the road new york case in the d c district court does not affect things here that case involves expedited removal orders under eight u entitlement to be in the united states and the expedited removal mechanism there is a way to effectively summarily remove somebody after considering all relevant claims promptly at the border involved people who generally who h the criminal removal type order so if you run through section twelve if you to be you'll see that it's focused on that group so they make the road new york case it's about a different context it's not about the sort of it ministr removal here it's about a totally different provision would that address your honor all i'd like to make sure to hit two key points just the st is the multiple reasons why the petitioner is barred from challenging his two thousand and three remov prior removal orders and just the final main point i want to make as to this two thousand and three order your honor is that even if there were a cognize of a gross miscarriage of justice claim here and we're not reason then you get to the reasonable fear exactly your honor yeah you know i know make sure to get those those points as well up the last one just on the problem of attacking that unusual removal or your honor is that there is no claim even if one could be available in some other case that there was any served with with the final order and reserve check the box was checked to reserve the opportunity for a petition for review he didn't petition for review or so long far as this record discloses or he has claimed seek any sort of contemporaneous effort to correct what he describes as this miscarriage of justice he delayed fifteen years there's no there's no plausible claim that there was a miscarriage of justice here do you agree though that the best care did just a standard really isn't a political anymore i can't find any cases at least from the circuit that still apply that standard in this context i think it's we wouldn't acknowledge that it's a valid context at all you're on it is it is one of those things where it's i think it's mentioned here you see it in some other contexts and i think it's very rare that a court reaches it and i don't know much about a court actually granting granting it so i'd say that i'm not sure if it would ever be available in this context we wouldn't conceive that it would be but well my concern here is exactly what we saw with the district court order here which is you know if you if you this question a gross miscarriage a supply of justice standard i'm worried about for example saying that this is a really sympathetic person despite the fact that the statutes will require us to reach a particular result and so that that sort of exit ramp really concerns me here with such a comprehensive immigration statutory scheme right around and that's why we certainly don't think it's a proper ground we would say you know if there could ever be a conceivable case this is definitely not it but i think those concerns are all all very well taken and i think as your honor also notes and i think as some of my earlier discussion to get it's a very comprehensive and carefully crafted jurisdictional scheme so any kind of miscarriage of justice exceptions would seem to do violence to that and that's why we think i think your concerns are all very well taken on on the issue moving to really the number two in the in the separate main issue here your honor your honors there is no grounds to disturb the immigration judge's decision up holding the reasonable for your determination here is as your honour's know it's not easy to get through that get through to to make the withholding can remove a claim or a convention against torture claim those are not easy burdens and that this threshold reasonable fear standard is higher because of those reasons whatever standard the court applie standard to apply in reviewing reasonable fear proceedings it's one of those things that i don't think has percolated very extensively in the courts of appeals i believe we file we cite a th circuit case in our standard of review section where we see where the th circuit i believe applied the substantial evidence standard but it's not something that's extensively percolated i would note here that the reasoning that that was given  r the determination of no reasonable fear is legitimate makes sense aligns with that the record the petitioners testimony as as the as the record shows was about mexico was it was very general  know i don't know you know what he you know what might you know he might face he said he was concerned about poverty society in itself violence and fanatics and cartels but ultimately his claim seemed generally to be about his sixty where on three hundred and fifty seven he said look it will be hard to get a job i might get you know fired i believe he said it or you know he said he was made fun of in the past you know those are you know unfortunate but do referred to a a for a full withholding only i believe that if you're withholding only proceedings for withholding the prosecution aspect as well as that they can't withholding in short i don't know that would be the same a j but it would be an place a removal identified or likely not it the possibilities available your honor i think it becomes one of those practical questions you know what often removing folks to their non native country presents just practical difficulties will the country accept and that sort of thing so i think it would raise would raise some of those questions other things that could could arise in due course where you know like let's say if there were circumstances found that he met opposed to a control officer substance i didn't go check that track that down i believe that and i believe that's right i believe that's ultimately what the the final the final removal order itself doesn't folk that that statute your honor and does fit into that aggravated felony category i do think that the this it does appear just a scrivener's error that not i'm not sure that i got some sense out of closing counsel's brief that the the expedited removal it doesn't apply to all categories of a forty three i would think it would have clyde of crimes of violence as well as controlled substance but these statutes are awfully complicated right now if i didn't take that to be b s argument i thought that while it was more of recital of the prejudice right right now i think it's curious and if it's that that's that's enough right now i think i think that's i think that he still fits within the cracks there the leader and vote provision the gross miscarriage argument quite a bit less strong right your honor and i think the other other features kind of better because you do have the right the right the right provision or the provision that seems to fit i want to be careful about saying because we don't we just don't have a lot of well i'm not going i was just curious all right the argument is premised on he would not have had the expedited removal if he had been charged correctly right right and i mean the years you're basically saying we don't have the records to track that down although maybe if you got relief i don't know what i think he still would have been a subject expert you know i mean it's the same i mean i get the offenses both fall into the aggravated felony you can be removed on an expedited basis category i think his complaint is it's more about well if if the if if we accepted the gross miscarriage argument as sort of a freestanding basis to look behind the reinstatement order and  thank you and i just want to address watch judge loken you were just discussing with the counsel for the government no he would not have been subject to the expedited removal proceedings categorically forty two b is regarding drug offenses for which there i know it doesn't sound logical canary waiver yes all right so the drug offenses the drug offense the problem with the dant be waived and all others you can you can be a serial killer and still  offenses in their documentation it doesn't exist in the record it didn't exist in the documents provided in two thousand and three it did not cite a texas state statute under which he was convicted for a forty three f a alien requesting of fear based relief under withholding chat to be able to prove his claim and counsel the government pointed out in the past my client hadn't suffered harm rising to the level of persecution which i  conceded but his future fear of persecution i think we should have stablished by a full hearing on the proceedings and just i understand that your argument here you don't have a direct sort of response to cardoza salazar doesn't sound like you're familiar with i under i did ok so you get i would have to