case number seventeen two one seven one and eighteen one two three three sama sama at all versus rebecca duty at all are even not to exceed twenty twenty five minutes to be shared by attorneys for petitioners and twenty five minutes for respondents mr stewart you may perceive the balance may please this the court i'm scott stewart on behalf of the federal government i'd like judge about shelter if i may to say five minutes for a bottle thank you at issue in  today are two preliminary injunctions require barring removal of a large group of iraqi nationals and ordering bond hearings and potential release for a large number of iraqi nationals as we explain in our briefs each of those injunctions rests on serious errors of law this court should take each injunction each injunction in remand for limited further proceedings if i may your honors i'd like to start with the removal injunction the district court held that eight u s c twelve fifty two squarely bars jurisdiction in the district court here as a statutory matter but it held that applying section twelve fifty two plain terms would violate the suspension clause the district court was correct as a statutory matter as we've explained our briefs but wrong as a constitutional matter if i may i'd like to go straight to the constitutional matter but would of course invite questions on the statutory question as an initial point your honor these this is special clause is not it does not come into or bar their release to some place as a way of insulating them from alleged torture alleged you know prosecution things like that very very similarly here we have he is being invoked not as a challenge to the legality of executive detention which is the square traditional common law use of habeas but instead is a means of barring release from another country i think it's important in that regard to note that again the united states could effect these removal orders to a number of countries not just iraq so the result here is not automatically released in the united states so again it's not sort of a central core use of p b s we point out other reasons of course why we have to focus on kind of common law a core as you say hey this is supposed to statutory hey b s is there any common law analog of a situation where the government was trying to send someone to another country and you were able to get a release somehow  i'm not certain that there is your honor i mean i guess i all i'm trying to say is i think you're right about your first point but that then leads to the question well maybe there is a store example where he was used in this setting you know you honor i don't know that one has been pointed to in this case i'm not aware of any we've been you know the issue's been vigorously contested and i haven't sort of seen a good good example of that i will say that whatever the you know whatever the case may be very the law here does apply a means to the crime and you know seventeen ten in england if you're convicted in you're convicted and you're about to be sent to australia to the penal colony for the sake of argument there was no way get out of that i mean i would have thought you could have brought a hideous action in what you'd be saying is don't send me to australia you know i'm not sure you know if the only alternative there would be you know released back into the initial country or to australia there may be something there because there would be detention in need of removal your honor i think what you know again what we have here though is that you know there's a situation where somebody could you know under the law be removed to a number of countries iraq is of course the presumptive place given that you know we're talking  nationals and people people from iraq you know broadly here but again i haven't sort of seen a common law analogue that would fit fit within this and i think that's borne out a little bit by you know pretty well by just the nature of the challenge here is that it's it's sort of a fact intensive challenge undertaken without exhaustion even though you know exhaustion and sort of the pure legal determinations are really at the heart of what the common   not really seeking what is the traditional form of p b s relief and i haven't seen it you know a good example kind of where this would fit in in the common law even if it is even if there is a common law analogue i mean versus turpin would say you can still channel the relief i mean it's not suspension close by elation if you create an alternative system yes your standards for how you try to vindicate your rights sure exactly so you're on and we say that you know you know even if the court you know however the court resolved this sort of does this suspension cause a pyre not here they're the alternative kind of independent ground a sort of reject the district courts conclusion is because of the adequate alternative mechanism that exists here through the administrative immigration courts the board of immigration appeals and ultimately through the federal courts of appeals which has authority to review and rule of law legal and constitutional issues you know and that is a critical point that i want to emphasize and i think it's somewhat in the district court opinion sort of the importance of the statute the statutory and regulatory regime we have surrounding removal here the district court i think sort of took this is a presumption that you know a situation where you know once somebody is ordered removed if they're not removed then you know there is there's kind of a reliance interest or they may come to believe that they can stay in the country or there is kind of a de facto you know building up of of constitutional type pedigree procedural rights and i want to emphasize that they just report just got that wrong as a matter of law and if i if i may i just want to briefly describe some key sort of features of sort of the removal process because the key kind of process here and what's affording didn't start in twenty seventeen it started way back when people started going through their move removal system the removal process here you know in short it's a very robust thorough set of protections aimed at getting it you know whether somebody is removable whether their entire title to any relief that sort of thing somebody gets you know an alien gets notice of what the charges are against them they get to submit evidence they get to cross examine witnesses in the course of removal proceedings an immigration judge has to make a decision based on the evidence and there has to be enough evidence to make that decision the alien has a right to to apply for all sorts of discretionary forms of relief asylum non discretionary forms of relief well with withholding of removal under statutory grounds under the convention against torture of immigrants when these cases given h but you know i mean that's true of sort of a lot of areas in the law when the government is bringing an affirmative case and you know the government ends up showing its case and that sort of is available but again the procedures are are quite robust and in addition to the ones i described as far as the evidence and that's why i said it sure just you can call something robust if no one gets relief i just think it's a bit of a misnomer i mean according to i mean you might say they have lots of procedures and ultimately they're designed to prevent relief well to clear you'll never get it your honor i think in this case i mean the both the district court and my friends on the other side it has hiv have maintained that if somebody can access the system then it's that you know  it's a fine system it can adjudicate things it's not sort of unfair or run you know improperly you know grants relief and they've they've touted that they are reopening their cases they are being granted relief and not in a number of these cases so people do get relief some of the burdens are high  but you know there are favorable exercise of discretion there are many people who meet these burdens and that sort of thing in this case is sort of bearing that out getting the outcome exactly so your honor i mean again it's not a guarantee of outcome but it is a guarantee of just sort of you know an adequate ineffective mechanisms to correct errors you know raise you know raise relevant claims that are provided you know provided under the law but exactly so your honor and just to sort of fill out the picture a little bit procedurally on the ro this your honor you know their appeals to the board of immigration appeals to the people you know petitions for review the courts of appeals people can move to reopen or or reconsider uncritically here you know there's no time bar numerical bar on seeking reopening in light of change country conditions and the last point i just want to say on the procedures and again this is critical to sort of where the presumptions lie is that the statutory and regulatory regime here really puts the emphasis on if you're ordered removed you are expected ultimately to be removed the hope under the law is that you know things will move expeditiously because you know there are ample processes and other opportunities and just the difficulties of manpower or other things that doesn't always happen but the strong expectation is that folks will ultimately be removed if they don't get some relief if you have a situation where somebody is about to be removed to a country where it's fairly certain that they're going to land be taken into custody and that's going to be less than the bases of them hypothetically and the there there's been a status quo which is changing and then there's been a change of country conditions there is no if the government wants to move expeditiously before there is a motion to reopen for change of country conditions there is no absolutely nothing that courts can do to postpone no you are so in the hypothetical which is i think you've you've rightly recognized is not is not the situation we have here if there would need to be some kind of article three intervention to prevent to prevent like you know something in an extreme case the appropriate route would be to seek emergency relief in a federal court of appeals that's the only route that's consistent with the  scheme here it does happen people do on occasion shoot up from the administrative level to the courts of appeals before there is a ruling again it doesn't need to happen and doesn't happen very often there may be other other issues  with that sort of thing but to the extent there needs to be in article three interventions that would be the one that's consistent with the statutory scheme your honor and we cite the con the con case out of the third circuit as one example this court's decision  slightly different because they're the as i recall the b i did rule on the stay very swiftly but it was about you know two days passed between you know filing and ultimately didn't you know ruling on a stay from this court so things do move very swiftly and there is a mechanism for that here the key problem is because of the injunction on removal issues that didn't really get to you know play out and that didn't get to be displayed we did have a declaration the declaration that showed how well things were moving on motions to reopen in the detroit area but again because the intervention injunction intervened it wasn't allowed to play out the way it was meant to i think judge white if i can also just at a point in this was sort of a closed loop on kind of the presumptions and reliance interests and so forth when somebody ordered removed and they've you know exhausted all their remedies they can depart they can leave the country they're actually criminal provisions in place that you know allowing for criminal and civil penalties for failing to  depart which at the very least show you know there is a strong presumption that people are supposed to part and even those those folks who don't depart and are released from detention orders of supervision like those folks are heavily regulated what they do they have to you know they can be subject to check in procedures you know exams you know requirements to obtain travel documents or to help obtain travel documents so this system is all geared at the idea of you know when the government seeks to remove you it gives you a lot of process but if you are after all that process ordered removed you're expected ultimately to leave or to be removed from the country question if let's say you're right about the jurisdictional point in the removal case if that's correct does it follow that we don't jurisdiction over th  tension case we don't take the position there you're on i mean i think you know the supreme court you know recently rules on these detention issues i mean detention is is a sort of different a challenge to the the fact or length of confinement is the core curious why why why wouldn't there be the same jurisdictional objection to the second part of the case i mean the idea i thought was there's a channeling mechanism that congress has created here's how here's how you handle this and there's still if you have a detention objection there are still ways to channel those objections through the existing in a straight up process including up to our court so i guess i'm trying to figure out why right you know it's  sort of rules don't apply and i realize jennings went through the district court but the u s supreme court didn't say anything one way or another and of course they reversed so i just don't know that but the question the second appeal or the challenge of the second injunction kind of in light of the existence of the first injunction so we're not able to execute our effectuate removal orders so we kind of have the situation of people who were detained and can't be really removed for some period of time so i think that's the issue i do acknowledge that you know if the court vacates on the on the first injunction and you know sends back that you know vacate some second junction sends it back down there may be you know further jurisdictional questions are just  other things to consider i haven't i haven't fully fleshed out exactly how i mean the way judge batchelder asked the question was to narrow it a little bit as i instructed or what i heard he saying is there wouldn't be detentions but for the district court's exercise of authority that you think he doesn't have and so it is funny to say ok fine we'll say there's no jurisdiction over that but we're still going to say there's jurisdiction over detentions that were created by district court authority or exercising authority that in your view he didn't have so it's funny to say you don't just dismiss the whole thing right i got yeah that's a fair point you're on i guess what i'm saying is sort of it's sort of trying to answer the question light of the first  injunction but i agree that there is there is an issue there about how any continuing detention native removal could be challenge other than through the i think it would have to go through the government's position in a just a run of the mill detention case that has nothing to do with the first case normal kind of twelve fifty two channeling process with a maybe i'm not understanding how you were answering my initial question which was a broader question than judge matsch elders right and i for sure didn't understand that the answer is so so tell me what the answer what does hypothetically you win on the first point ok it's exclusive in removal cases that's channel that's all there is you can't go straight to district court so hypothetically you're vindicated on that point what does the world look like in the future when someone complains that have been detained for six months without hearing or i want to bail option is that your view they can go to district court no you want to be they should pursue in those cases at least in the ordinary course you know whatever remedies they have in the in the as it's exclusive it's at least the initial the initial for um i believe you know your honor well no but you know what i mean by exclusive exclusive in the sense that you go through the exhaust your administrative options and if you don't like that you go to the article three court which is a court of appeals not a district court that's the question is there any role for district court judges on detention matters if you're right about the removal argument you've made i'm not i'm not certain that you know three hundred twenty million people sitting behind you not wanting concessions but you might think about it and be really helpful if you told us the government's position i think that's fair for us to ask but that's very very strange to have a jurisdictional case and we were going to not know jurisdictional issue in the second case because if there isn't i want to know why and i want to know why that's not inconsistent with your position in the first case and i'm i'm not complaining right just saying that's i for one would really like to know orders there could be a case where detention is so disconnected from a removal order that there may be lingering district court jurisdiction but i  know if that position is in tension with your first argument but the other side wants to know that to hear if i may your honor just quickly on the second appeal and or on the second appeal  i'm happy to sort of rest as much as possible in the briefs on this before sitting down and saving a little bit of time for a battle but i would just emphasize that i think to the extent you know that there is a kind of jurisdiction on the matter jennings i think largely resolves most of the issues on the second appeal the way that this court reached its rulings on both twelve thirty one and twelve twenty six was largely through a constitutional avoidance approach a statutory interpretation that has been rejected and otherwise we get those and operates if i may your hon file a motion to reopen and they have a disqualifying conviction or something like that or something that permits we do you immediately arrest depend on you know say if somebody has already been ordered removed and there is there's a plan to remove them they could be arrested i can't give a sort of firm answer because it is subject to different considerations but if removal is reasonably no real possibility of removing them but they file a motion to reopen let of somebody who you say these people the procedure that you think the petition should followed were there they sense that there are some changes in the country conditions and that if they were to be removed it would not be a very good thing  they filed their motion to reopen the motion to reopen is granted to you then say to yourselves ok now we're on under twelve twenty six see we have to go out and arrest them and put them in prove the administrative agency is going to consider whether there's been a change in country conditions but that's that's what that is the change of situation that that motion to reopen has been  granted i'm not sure it's sort of an operational matter how those those play out in detention could ensue in that case but i don't think i can give sort of an across the board answer on that right now with not mandatory in the sense that you're not saying that once it's been reopened you are now moved into twelve twenty six and if you have any of these things in your record you immediately have to be detained if it's under section twelve twenty six e there is mandatory detention your honor what i'm saying is that you know as that as a practical on the ground matter somebody may not always be detained in that case for you know a number of just sort of reasons you know kind of on the ground reasons i think they may still be regarded them under the supervision order  morning your honour's may please the court legal learn from the a c l u for petitioners i will be splitting my time with my colleague i will you dressing focusing on jurisdiction the first appeal my colleague will be addressing the remainder of the first appeal and the second appeal let me just start with the questions that judge sudden and judge matsch all they were asking the government i assume the government's going to correct themselves when they get up on reply the government's position is that there is jurisdiction in the district courts over a detention claim they did not contest jurisdiction in jennings the supreme court in jennings did address on its own jurisdiction over detention claims and said there was jurisdiction in hay b s and one of the reasons is because you couldn't get the claim to the court of appeals because it would necessarily be moot by the time you got to the court of appeals because the claim is should i be in detention during the administrative proceedings well the by the that doesn't  said is the district court that's how it goes you can't go from the b i a to the court of appeals on a detention claim the only with my colleague will address that more fully because she's going to be doing the detention is the reason i want to bring it up judge sutton is because you i think rightly connected t the two appeals and jurisdiction and i think it goes to judge white's question which is what happens if you are going to remove someone so quickly that they can't get into the process and so i just want to lay out what happened in this case to be fair to judge goldsmith down below we walked into court i mean yeah you can do this however you want but i mean one maybe when you're saying what you want to say you can think about this question i have some focused on removal now i right keep the focus there i mean it's just not obvious to me what procedures you get through your district court approach which obvious you prefer and think you have a right to i just that's just not obvious to me how they're better than that just kind of escapes me frankly better than the court of appeals you know better than the administrative system right which allows you to go to the court of appeals faster than you would go through just to court i mean you've got all these opportunities for stays through the administrative process we get these stays in the fifteen years i've had tons of these motions and i'm just i'm not an obvious why your claim gets favoritism relative to what i feel like i've been doing for fifteen years with lots of other people with frankly much more stories what they say they have to go through that system yeah you know i mean i don't let me get back to whether they are in fact more stories because we do think i want to get to the quick i think your question goes to the the crux of this case and jurisdiction i do i do want to say in terms of wor i think what judge goldsmith was faced with an undisputed record was that he would literally be signing the death warrant of people if he didn't keep them in the country we're talking about not just ordinary persecution on religion religious grounds we're talking about beheadings sexual slavery the state department has said it's virtually genocide and so i think he was looking at potentially signing the death or not going to your question which i agree is the crux of this there's no question people have to have review notwithstanding the government and i can turn to that later that's just where your going sincere but on the question of why we didn't go to the court of appeals judge goldsmith was absolutely clear that he understood that was the preferred means of going and we said to him very frankly that would be the way to go but we can't get there in time we walked into court on june fifteenth the government said these people may be sent back to iraq on june seventeenth they were hundreds of them scattered all over the countries all over the country no one could find them to go into the administrative process would have required finding the lawyers and preparing an entire motion to reopen because you cannot just file a stay before the immigration judge or the immigration appeal by itself you have to have the entire motion to reopen prepared so all judge goldsmith did was say look you need to have access to that system exactly as you were saying judge sudden because you do deal with it he said i need to give them time to get into the system once they're in the system then the system can work but that's what he did and i think you know in the government is not being that to be accurate what has to go with it is not just that access to district courts from time to time but access to class actions certify a class as to the first appeal in this case and the government has not contested the use of a class action we can certainly do that on remand we can certainly name individuals now but you're right you do need to proceed in a way for class actions  but i think that for me i just didn't think that's the way it works why i think the supreme court has never said it doesn't and i think about reno reno  thirteen said i'm not going to certify a class in this case and so the government hasn't put it out issue but i do want to say whether it's a class or whether it's lots of people join to hate us just as i want to know their answer to the jurisdictional question the second case i want to know your answer the class question because they work together because i think the whole premise of what judge goldsmith did what you urged him to do was you needed to do this on a class wide basis and if that's something that doesn't work and he is in this setting it's a very useful piece of information because it destroys the premises of everything he did yes run it well i don't know that it destroys the premise of i want their answer i'd like your he answers ok we will we will give you that answer and whether we can probably give it the second my colleague can give it to you in answer i apologize for not having that answer and the government didn't put it issue but i agree that you need to know that if it's concerned you and my colleague will give that to you but even if it's not as class wide even if it's let's just say a few people and we had the names we still could not have got motions to reopen filed in those two days it was still what are we talking about because we walked into court oh i you're suggesting is that because they have very old final orders of removal they could have moved to reopen it earlier than when the government picked them up we don't think that that would have been reasonable and i think the district court made findings about that because this is very different than the normal situation where someone has a removal order and knows that the government just hasn't got around to executing it this is a situation where people have been living here for decades there's been no repatriation agreement so people couldn't be removed so for them to file motion to reopen would have seemed just as the district court put it unreasonable and one of the reasons is not just factual but it's legal because ultimately cap prevents or removal based on the conditions at the exact time you're been removed so let's say they filed motions to reopen in two thousand and seven two thousand and eight and if they were been denied they still would have been allowed to move to reopen again based on the conditions because they were constantly changing even if they had been granted the government could have taken it away in sick conditions  better so it makes little sense for people to move to reopen based on change country conditions if there's no expectation and this was not just them feeling like i may be the governor will never get around to me it was twenty years of iraq not taking people back unless they had an unexpired passport so this is a very different situation i think the government is trying to present this as this is the normal person sitting around with a final removal water and hoping they escape or get lazy these were people that were out in the open reporting all the time iraq would not take them back and then the government sweeps in and judge goldsmith rightly says well they've been here twenty years they had no expectation they could be removed now you're going to remove them change where the negotiations where iraq ultimately got taken off the the second travel ban and so that's we're talking late spring and then the word but that it was not really out in public that it happened and it wasn't really that people got notice until they were starting to be arrested on june eleventh we were in court by june fifteenth and judge goldsmith said to the government look what do you want me to do i'm faced with a normas evidence that people are going to be beheaded there's going to be genocide you're saying you're going to remove them in two days won't you give them time to file motions to reopen based on these conditions these are minority muslim sect they're christians they're obviously going to be in serious danger give them some time to file motions to reopen you have not put in any evidence that it is not dangerous in iraq that these people are not being can be threatened with potentially genocide the government said no we won't do that we're going to remove them and so judge bolton has said well i have to slow down  process i still am not getting this i think you are trying to say the problem with the reopening approach is you have to look at the your so you have to get the whole application there before this you seek a stay in connection with us that's your point yes explain why that is harder than a district court claim or injunction which the district court i mean even if you're right about jurisdiction one can't lightly stop the immigration process i think we all agree including judge  is the exception to the rule so you have to have something extraordinary why i guess i just it's not obvious to me why the same set of materials you need to show and tell them it's a district court plain junction relief isn't just as difficult in getting together the package to reopen get a stay i'm about to be beheaded stop it and if it doesn't work come to us and we'll stop it your honor so i see my time is running up but this is the answer to questions i think are all in the record and judge cults would make factual findings in first as the immigration judge and a required a very carefully particularize it to your client everything about your particular client sure would hope the district court judge would do the same thing well i think that if we're going to allow this as a district court safety valve i expect them to actually be looking even more rigorously than the immigration law i think you know in fairness to the end plus there's also on the record that the state process doesn't work that quickly for the immigration is b r d not withstanding the generalized responses by the government there were factual findings that the state process does not work that quickly but i think in fairness to judge us the minute they know that but no let me let me be very clear about that point and i hope that the government on reply will be clear will be clear about it you cannot under the government's position come to you before there was a final decision by the be on the motion to reopen you cannot bring a stay into law kotori so hypothetically the board either at the i g level of the board level is sitting on one of these and you know that the planes about to leave in three days you're telling me hypothetically in that situation the lawyer asked the board are we going to get a ruling on either the reopening or stay before you know july twenty second and they say no you're not it's not going to come out for a month you're telling me in that setting you could not come to our court and get on or that's the government's position and the government said it only one case to caught in the third circuit if you look at con very clearly a the government contested jurisdiction to do that that kind of perspective jurisdiction by you to issue a stay and the third circuit ultimately didn't issue the stay until the motion to reopen had been and we had been den to stand for the governor's proposition and we can submit to supplement only i mean tons of briefly tell me a case is there a case where the the nightmare scenario occurs and the court of appeal says no we're not looking at this tell we get an administrative decision on the motion to reopen we realize the administrative agency is not going to act on it until months after the person departs but we don't have authority to grant a stay in the interim or court of appeals case or us supreme court we will give you those citations and if that would be a sea change in what's going on if you could get to the court of appeals and say the nightmare scenario is going on judge goldsmith could have turned around then and said look the court of appeals is there for these nightmare scenarios but the government didn't say you can go straight to the court of appeals and so he is faced with the nightmare scenario of signing people's death warrants and you know i mean if the governor wants to get up here and reply and say our position notwithstanding the hundreds of briefs and we said you can't go straight to the court of appeals on a stay remember that's not what i said i do know i know you want the court cases and we would we would give you the no not say it's the right to go straight to the court of appeals i said what happens when you see state relief in front of the administrative agencies they won't act on it or they deny it and they want to act on it in time for to be relevant do i understand then go to the court of appeals that's my question my for your honor i understand i know that that's the scenario where you first ask mr reid for stay they don't act on it quickly where they deny it but they don't deny the motion that's the exact scenario i'm talking about where the courts have said it thank you you please quote i'm margo schlanger also here for the petitioners let me start with the point that the existing on the first appeal that the existing available remedies are not adequate infective i'll do that just quickly and then move to the second appeal unless there are other questions the government freely admits that what it was trying to do was to deport the petitioners before they had a chance to file and get a resolution on their empty arse and we know that that hurry was in fact depriving people of their right to be heard because the first few dozen that got filed in the exits in circumstances that existed all got denied out of hand because nobody could put together an adequate m t r package in those couple of days and then the m t r since have largely been granted and that demonstrates that the hurry was in fact prejudicial the reason is that m t r is when you file them it is you have to file a state you have to file an mt or to get a stay and to file m t r you have to file the application for underlying relief so you need very particular evidence for each person and you need their signature you need you need to know what happened to their immigration case prior i just don't get this argument why wouldn't the same rule be true if you were going to a district court judge going into a vigil basis to get the judge to go outside this system right choir just as much i would think you'd require more because it's so extraordinary well what the district court judge ruled on was on the basis of overwhelming evidence of change country conditions and of danger but not of the particularized evidence about underlying relief so there was no evidence in front of the district judge of the particular convictions of given petitioners that kind of thing and that's the stuff that takes a long to put together so when when we got the what the district judge apparently district court judges be excused from having to look at that before they go outside of this pact that we all agree is the norm it's quite extraordinary go outside of it it makes me even more skeptical of the argument that you are you get rid of that burden you're not only avoiding the normal path you're not even being asked to do the things you normally have to do to get the room but the only thing that the district court granted was a pause giving people time to go into immigration court and seek that underlying relief the district court wasn't adjudicating the underlying relief and so the district court got evidence of country conditions and of danger and of the on availability of the regular system and that's the trifecta in this case and those are hewn eak these were these were long standing orders of removal entered some of them you could go to the district court judge if you're right and you've got two things you can say point to all the stuff that's just really serious change country conditions and very seriously show you're the kind of person that they're going to go after ok so those are two things you you show it turns out you're right two relief under immigration law is nonexistent well you could still get a district court judge to stop everything you know you're out explaining why under the immigration laws you know  that's still doesn't make sense to me but that those that exact same showing and plus i just want to emphasize and the inaccessibility of the system to you in the particular factual circumstances but that show and change country conditions plus danger to you that the showing for withholding and kept relief and so what you're showing is that there's a very plausible case for withholding while at relief other things i mean if you've just committed seventeen crimes and everyone knows you're guilty and there's no that not being true right you're on a little bit of a so what that would be that would exempt you from withholding but it would not exempt you from cat relief the the duty of the court of the united states not to return somebody into torture well it's a due process case and a cat case your honor it's a due process claim on the right to be heard on the m t r and it's a cat case the cat itself gives you this underlying substantive right not to be deported into torture and you get a chance to be heard on that to the district court on the cap claim focused on the fact that there's no automatic stay at which is it the reg is it does say no automatic stay when you make a cat claim  red predates cat so it's not an interpretation of cat the cat the cat cat guarantees kat enact it into statutory law by fair and just to be clear right so it's a statute says no no  torture it's an absolute mandate on the united states and so this this showing that we made in the district court demonstrates that that is very much at risk and therefore pause w we figure it out and when we let the immigration court system do what the immigration judge what the immigration courts just find us on since we're focused on the cackling remind me what it is about going to the immigration agency first to get immediate  so complicated in the cackling so why that's different have a district courts we both agreed we'd have to show serious change country conditions and a real risk for this individual in that country so why if you had sole the a cat claim that's what we're now isolated on what would be different about going the administrative route and why would it be so burdensome if that was the only thing you were focused on just kept running their art all through the record and in the district court's findings there are findings that the immigration court system was not capable of doing this fast enough the detention the current the transfers that were going on to do it for one individual that that just proves it's a classic case but if you don't have access to know  even even individuals putting together an empty are a stay and a can't claim in a matter of a few days remember i'm taking that off the table i'm asking about just so we can know i have all you had was cat would you but you can't just bring the cackling you have to bring it with an empty are instead you don't get to file your cackling until your empty has granted and you don't get to have the m p r be heard until your stay is granted you have to file all three in the in the administrative system and so you have to put that's the packag your stuff has what all the your history is that the you know so though the cat claim has things about your history and it requires a signature just by the way so that when you're talking about people in detention and in an emergency it's a very tough thing but so we have the underlying cat claim we have the m t r which shows that there are changed country conditions since your last hearing and so it has to grapple with when your hearing was and what's different now and kind of what the what the had the situation is has changed and so it's somewhat individuated and then the stay has to show that there's an emergency situation and that the rest of it is all plausible and so you have to have all three for the package and people couldn't do it they just couldn't get it together i mean after all some of them tried before we went into district court and it didn't work for them and these are the very same people who since some of them have had their m t r granted so we know that the system didn't work it's not a hypothetical at all and we know they that that if they were doing it the way the government now says that they would have been deported and we know on the basis of the showing that we made in district court that many or all of them would have been celt that i mean that and that those are all things we know those are the at the time judge was with was doing something predictive but time has passed and we've now seen that his predictive judgment was accurate that these people when they had time to access the immigration court system could win he couldn't know that for sure because you know he had to do it a matter of a couple days but now we know that and you can know that and so his  to take over well the ongoing need for the relief is a really important question judge white and what i would point out is that the government has not i mean it they have available to them to file a sixty motion and see some scaling back of the relief and then the fact intensive questions that would have to be resolved about how should it be scaled back into their reliance interests and is it available to people now and the folks who have been waiting on their immigration files because that's what the judge ordered like how long should they get to file now i mean this is but but it's available to the government to say your relief maybe you know we did we don't think it was necessary them but even if it was necessary then it's not necessary now and and that's that's a set of that's a record that we could produce and there might be some scaling back that would be appropriate at that point let me if i may research is the commonsense thing i'm struggling with a real issues lots of details here but the commonsense thing is in fifteen years there are lots of these cases with there about civil wars it's the same the stakes are just the same there's a civil war going on they're on the wrong side their side lost the civil war the other side's in power they have the same information and you know we get these stays quite often and we grant them sometimes sometimes we don't grant them but i just i'm struggling with why this situation is so different yesterday in years of looking at this and suddenly i'm told all along we should have been using this other route because iraq's different and i really don't think iraq is different from all these other civil wars you're on a part of this is that this was done on mass which was a real challenge to the system part of it is that i mean you know this was this was hundreds of arrests at a time which is not what you typically look at part of it is that they rather uniquely had this after nine eleven there weren't a lot of  really changed after nine eleven yes your honor although they weren't in they weren't done with charter planes and mass and mass trips which is the way that the government was planning to do this they were much more individual the process but but you're right  part of the issue is that these were folks who have been out on orders of supervision because they were not repatriated ball and it's not as if the government ever said to them and you know what things are different they just went and arrested them and that's very different to one thing that i want to i want to get on to the detention case for a couple of minutes but you asked about class action hey b s issues in show versus martin the supreme court reserved that question in a so called class action bar are we to know not believe that that that is a class action where we think that that's a statute that for bids adjudication of people who are not yet in removal proceedings it requires that people who are  covered by a district court order have to be individually themselves in removal proceedings and it's not actually a bar on class action that's not been briefed or argued here and the supreme court in jennings just said ha that's kind of a complicated issue let's let's get some they said you should look at this first or that a little differently well i take that point your honor and again if if if that's a claim that's going to be made by the government then we'd be happy to brief it hopefully in the district court first where we get to develop a record th system and there have been haiti as class actions so but i take your point about about the statute cited in in reno versus even c and we would be happy to brief that we do not think it applies here let me move on if i may for my remaining minute to the detention case the issue in the detention case we think that the court ruled correctly on the statutory issues and shoot fifty seven times jennings isn't great for that so we actually think that jennings strengthens our case your honor so so let me explain why if you think about if you think about twelve thirty one for starters right there's two different statutes issue here there's twelve thirty one and there's twelve twenty six in twelve thirty one jennings specifically said that one is different so what the court held in savage us was that twelve twelve thirty one says a coverdal be detained and what the court said insolvent us was that means may be detained to some discretion but it's not unlimited discretion and it does not authorize the indefinite detention may be detained simply does not authorize indefinite thank you so two things jennings didn't say no more constitutional of winter readings jennings said it has to be a plausible reading there's clearly a constitutional serious constitutional question about the constitutionality of needless prolong detention every court that looked at it has said that there is clearly a serious question and so the question before the district court and before you is is there a plausible reading of twelve thirty one that allows i'm sorry that supports what the district  did and the answer is yes just as may be detained does not authorize indefinite detention may be detained does not authorize needless prolonging detention it's the same argument as in jennings with a slightly different constitutional sir you know in service of a slightly different constitutional point so what what the district court did was said to ice look you may not take people in a prolong situation when it's not necessary and so you have a choice you can release them you can demonstrate that the detention is not needless or you can come to me and you can say why it is that there should have to be a bond hearing but that's your choice that the the statute does authorize needless prolonged detention that's a completely plausible reading of the statute jennings specifically said we are not disagreeing with zaba das and that is the stuff of just reading of the statute in any event it certainly raises a serious question going to the merits which in light of the equitable factors here means that it survives as an as a an exercise of discretion in this p r setting i would be very happy to talk about twelve twenty six as well as a statutory matter over my time zone so i want to just ask the court's guidance on that one of them it doesn't apply because it says in twelve twenty six e two the part that says no bond basically says only for aliens covered by c one and c one it says all c one c one applies only to illions when released from criminal custody and these these particular petitioners were not taken into immigration custody when they were released from criminal custody they were taken into immigration custody decades later and so we're not saying they should get released just to be clear we're saying they should get a chance to demonstrate that they're that they don't pose a safety threat or a flight risk and if they succeed in there then they shouldn't think they should be released and so see two and twelve twenty six see which is the exception from the general statute which is twelve twenty pick the person that they their release there are we that's a much more aggressive reading than the one we're offering your honor we're not saying that it has to be immediate we're saying it has to be connected in time we're talking about a matter of decades for some of these folks and years for nearly as far as i know for all of them but it's a class we don't have that those facts for everybody but but if at least years and often decades so our claim is not that it has to be immediate and let's just be clear we're not saying they should be released we're saying they should get a chance to get bombed and again we know you you have the luxury not the luxury but the benefit of knowing what judge goldsmith only had to make a prediction on he predicted that some of these folks were being held in the least attention and if given the opportunity would actually be able to show that and he was correct half of them did thank you your hon not challenge the underlying removal order there can be line drawing issues an individual case that's because of the statutory provision or because of a supreme court case or with which your reason for that the real i d act you're on i you know you you know the legislative history i think of you know born an effort to preserve kind of other challenges that are true he vs claims so what i'd sort of the bottom line answer on your jurisdictional question is individual he views actions that truly challenge detention and not the underlying removal order those could be available the issue that we have here in this this dovetails somewhat with the class white issues you were saying is it's hard to say on a class wide basis whether every single person is you know challenging true detention things or a challenging execution of removal if the injunction is vacated in these these cases this case goes kind of the appropriate route we think of ultimately individual cases that can be sorted out on an appropriate individual basis but we're kind of in an odd circumstance here where it's hard to say across the board there just would never be jurisdiction it's ongoing your answer is you just can't do it on a classified basis and that's what we should do there  d be serious problems on a classified basis but i would say that you know it would depend on the individual he views petition somewhat about judge batchelder is narrowing point that in this case it's very strange to exercise jurisdiction over the detention because the only reason there is detention is because of under your view the miss exercise of jurisdiction of the removal provision rights that created jurisdictional problem in this unique setting it does your honor the reason i was a little bit dumb it what's a little bit hard to sort of like kind of close the door on that question is there's sort of a rightness question about you know what would an individual challenge the detention without the obstruction of the  first preliminary injunction you know what would that look like what would be the challenge to do in the second case and say you're right you get every single thing you asked for in the first case were what do you want to happen in the second case remand for you no further proceedings on you know whether whether in this case should be after vacating the injunction on detention remand for the proceedings on any constitute wait wait if you get what you want in the first case there's no plumbing junction  you can't say anything about the tensions that's my question what happens in the second one as to the detention and why you get just what you want to get you're the author of your own success sure you are an individual petitioners  corpus provision in sections thirteen sixty one and sixty five to us that title no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the attorney general to commence proceedings adjudicate cases or execute removal orders against any it under this chapter and it seems to me you must be saying that detention matters are not any of those things they are not claims or causes arising from the decision of the attorney general to commence proceedings to a jury cases or to execute removal orders and if they are not what are they i think my answer is it's it's not necessarily but the tension does not get swept in in many situate situations by that provision your honor what i'm sort of holding out the possibility of is a sort of like a kind of claim that was a twenty to forty one instance where somebody is subject to a removal order they are detained but there is no the detention is not in aid of removal and there's no chance of removal that sort of thing that could be an instance where twenty to forty one individual he's position would be available i agree in this case it's a different circumstance i think at least generally where the detention the efforts in detention here have been in  never i think there is a serious question on that your honor and you know the way the way the case has gone we you know we haven't quite right into that issue in light of the first injunction but i do think there is a serious issue in that given the nature of these detention claims i think there is a twelve jurisdiction that is not an attack the removal order i think what we have here in a lot of these if this sort of case proceeded by the normal channels what you'd be seeing is these are really attached to an execution of the removal order and to the removal order and so would be barred realized i don't know what your request is i can't tell if the request is well it doesn't make sense to do this in a class way basis that's why you and dissolve any injunction on the detention claim  if people want to try to bring individual eyes claims and say they fit under some zob exception that still exists perhaps that's is that what you're saying is that your point i just don't know what the point is right well certainly the injunction needs to be there's no basis to order bond hearings here that i think that's that's step one why why is it so obvious if g is in a bar and you think they have these claims and pattern why that's so obvious i'm not saying that they honor i'm saying that you know it's what i'm saying is that there could be instances of individual heaviest petitions that are not barred by twelve fifty two g s it would depend on that particular case and it would need to be litigated on an individual basis given the background here it seems quite likely that those would not be viable he views petitions because of sort of the relief and the attack that the petitioners here iraq maybe i'm just not getting all of this but what seems to me to be the key likelihood of success thing in light of your argument is whether there's a likelihood of success of your being able to do this on a classified basis and that's not something that really has been briefed yet here we could ask for the briefing but that's what you keep coming back to because you say there might be individuals like for from that that you're making the point that the problem here was doing this in a class way basis if i'm missing something tell me but what i mean i think is a you know point around i just don't think that there's any i mean what the second injunction orders here are bond hearings and presumptive release and if you know if nothing else the statutes don't allow for that kind of an order but there are not you have a class action you're saying that kind of order if i understand you correctly you're right kind of word of the district court put on is not an order that it could put on either in an individual or a class action  right your honor right that that's right and i think on top of that what i'm what i'm just saying is that you know this issue has not really fully ripened in the district court there's been continued discovery on the matter and you know if there were anybody with actual claims again you know they may need to bring individual cases but again that sort of kind of a brewing issue what i you know what i do know is that the twelve twenty six and twelve thirty one kind of bases for the detention issue are not are not sound i see if i see that my time's up if if i can be indulged in one more minute i could i make through a couple more