of this case as far as you're concerned in terms of trying to i have a release from detention or a bond hearing the bond hearing i realize technically was a court saying we didn't gomorrah and other cases he does have due process rights under the th amendment because setting aside we can discuss the whole arriving and when issued later there is no dispute that he arrived on u s soil in california and as such whatever they decide to classify him as later and i can address why we think he was in this classify he has the same constitutional rights as anyone else in the united didn't you didn't appeal the classification decision and one of the footnotes in your brief says that's not directly challenge before us so we should take the classification as a given if it hasn't been preserved force but the classification in and of itself doesn't of this story the plain fact that he was in the united states he did not arrive at a point of entry when he st came to the united states here right in california and it was only then that he and his daughter were detained and as such because they were on u s soil they are entitled to the same constitutional protections ok that's also say that an alien in his situation gets those procedures short so in terms of whether or not a parole procedure was appropriate there are a few cases that talk about how parole is not procedural due process because what additional procedures is he entitled to he is entitled to have a neutral arbiter is there any is there any basis for questioning the neutrality of the decision maker in this poll procedure yes there is commute tragedy of that decision maker is his jailor it is ice there isn't fact i believe an ice representative in the courtroom who believes he's sitting at a police table that is the person who is determining whether or not he's entitled to call it's essentially his jailer who is not neutral who is not if there is a juvenile who has been ordered released is here if an individual can't be accepted can't be located to accept custody of the at the juvenile and the juvenile has relative in detention simultaneous release of the juvenile and that detained individual shall be evaluated wanted discretionary case by case basis the in the location to accept custody of a juvenile if the mother no whether relative or guardian will is able or willing to accept custody should this regulation be read to require its speaks in mandatory terms that there be a bond hearing where i an immigration judge at least takes account of that issue of to make the discretionary determination about bond for the parent or we think a child your honor and in fact because they st arrived on us soil and they were not placed an expedited removal proceedings hearing the reason that the government made the objection that it did at the bond hearing in the reason that the immigration officer found that she didn't have the authority to order a bond in the case of mr h is because of some an obstacle the government created after being detained in the lera for five days during which time they were and they were entered without inspection they were then given a notice to appear and forcibly illegally sent back to mexico two months later when mr h followed the for the government's conduct they entered without inspection they were entitled to a bond hearing and that's all we're asking is that the government not prohibit them but you can preserve the child and you haven't appealed the challenge to their close suffocation i don't understand how this is before so if you have a challenge that on appeal i don't think that we need to challenge it on appeal in order for this court to still find that their last uncontested status was that they were entered without inspection and entitled to the bond hearing moreover that objection to their status has been made before the b ira so they  all nobody's denying that each day that mystery to me are in detention is a violation of their constitutional rights and each day that goes by they are suffering irreparable harm all are asking here is that they get it's partially the st men or claim but it also demonstrates that something differently is being done with this family and the testimony of the government's representative at the hearing below though explains how the other numbers are different i believe that mr george talked about some families that had come after mr h and mia had arrived and this can be a talks about the taal of the of the families but you know the other issue is that this could be that this government is son he's never seen before is the family here you the one on leave before so for the entire family that is his asylum claim and his daughter and his wife are derivatives on that asylum claim so if he wins they would benefit  or no but it's not necessary that there be no link there could wait for it decision moreover if they lose they then have a right to appeal to the b i a if they lose their they have a right to petition for review this process could take years and there's question we're not asking you to give a call determination indeed in the dozens of cases and subsequent to jennings there has been no rd circuit case but there are dozens of district of new jersey middle district of pennsylvania cases addressing whether or not arriving allianz have a right to a bond hearing at some point when their detention becomes unreasonable in several of those cases the non citizens have had cold reviews that were denied we're not asking to review that ice made the determination that he's a flight risk based upon and it would seem pretty really quite difficult to surmount that decision well in that case then they should have a bond hearing one neutral arbiter places the burden of proof on the government where it belongs to prove that he's a flight risk not to have the government make its own decision about whether or not he's a risk a player is is the relief that's been provided to date is that sufficient  for for his daughter's release and that that is it is is it the case that though the address in location of the mother is in fact known and she is able to take custody as the in choosing not to as has been the government's representation here the parole decision also indicates that there's a specific address in which and she's known to reside and if that's the case and and she has not yet been picked up for detention by immigration authorities th n is is there really a need to consider a bond hearing for the father in order for his daughter and to be released from custody if they're to be willing to gather which were asserting they're entitled to what's on the record will it is there an avenue for for the daughter to be fact be released or does that depend on whether there is a bond hearing for her father at this point that would depend on whether there's a bond hearing for her father she has i guess let me rephrase that she has a right to be released because she's been granted full on bond and she has been called but there is the testimony at the hearing is that they need to be together for her mental health and in addition it's no solution to family separation to her their separate a family there's no need to re traumatize this child all are asking is that the government justify its continued detention of this family added hearing at which they have the burden of proof to show that detention is justified i understand that argument but i'm still not clear whether there is any adult who would be authorized to take custody who's able and willing to do so and is not currently detained i believe that the mother would be authorized to take custody and she's not currently detained would be uncle not under these circumstances well it's possible the uncle could be a sponsor but i'm not and don't want to misrepresent anything  any court before a right to family integrity that requires the government to release an alien who is properly detained who is not challenge the classification by which the government default under the i am a by statute is detention a right to due process that requires the government to override what congress has stated in the eye and day that aliens of this character be detained and instead do it either provide additional process beyond what is hope are by statute or to simply release that alien so that the alien is not detained and a right to be free from st amendment retaliation or it is not clear that the st amendment high and where the alleged retaliation is in part based upon a negotiation by the aliens going to the right to due process or stand there requesting that there be a bond hearing here we have an immigration judge who concluded that again looking back to the regulation that i was identifying i'm waisting that something that is in the st instance already based in existing regulations indicating that an immigration judge shall consider simultaneous release if there's no one else able and willing to come forward which is it appears to be the case since the daughter at this point is still in custody  grounded in in what congress where the agency authorized to promulgate regulations so let me respond in two parts if i may the st is as judge people appropriately pointed out there's been no challenge to the classification these aliens are classif and twenty five they're not classified pursuant to and other section of the i and a and the i and it's quite clear by its plain language in this court would have to do violence to that plain language the default is detention for aliens classified and twenty five the only process that they are due is the right to request parole which as your honour's noted during the questioning of kurdish nerves has occurred and they have received a substantive response from the agency that's all the process to which they are  interpret i think it's just that no your honor that's not that's not quite what i'm arguing the regulation doesn't trump the statute the regulation gives a judge when a judge is considering cool a child should be bonded out to in light of the fact that the floors settlement agreement puts additional requirements in place for children that have never been held to apply to adults when an immigration judge is interpret and who are child should go to that regulation helps the immigration judge determine who would be an appropriate person to select as the sponsor of regulation pre dates for florists agreement produced before a settlement that's true your honor but the regulation is talking about the circumstances in which a child is going to be release that does not mean that the regulation also provides that in alien who is detained pursuant to one thousand two hundred and twenty five dollars is suddenly intitled to that kind of determination simply because no one has come forward yet to get the child but just mechanically what what other process would there be besides a bond hearing under the regulation immigration judge is directed to consider simultaneous release with detained parent what would that have to mean bond decision that the child should be bonded out who that child should be brought up bonded out to but here we've already had that determination the mother has been identified as the person the child has been but can be bonded to she's not in removal proceedings there is no reason that she cannot come and pick up the child i understand that the family has elected not to do that but there's no need for that regulation to come into play and for the father petitioner to also be bonded out simply because the mother won't come and pick up her child  unreviewable but where there hasn't been that that consideration at all by an immigration judge why isn't that whether we think about it in constitutional terms or just a straight up violation of  immigration judge in the context in which a bond is being considered what are the considerations that the judge should look to it does not direct the judge to grant a bond hearing or to have a bond hearing with the statute has quite plainly said that a bond hearing is not required there are brits there is a bond right for juveniles correct correct that's separate correct and there's about right for other aliens classified under other portions of the ins and when that happens this is a consideration for the immigration judge  discretionary determination and there was no need for the judge to even reach that issue because the mother is present in new jersey she's able to pick up the child i understand from a from oh the point of view of the family's decision making they haven't chosen to do that it remains on the table today from the government's point of view the child has received all the process to which is due and as has the father how can we take it from this record where that doesn't indicate what the reasoning is you seem to be suggesting that it's litigation strategy on their families part but what we have on record is simply that there's not another adult able to really to step forward to take custody in that circumstance i guess and i understand that you may think that th the adult is not willing and able to come forward then under their regulations is it enough that there be an adult located who fits this description if it's not located to accept custody and your honor on the record that we have record before this court there is no evidence that the mother is unwilling or unable to come and pick up her child at the time we have a hearing before the district court below the mother had not elected to come and get the child there's been that there would be absolutely no factual basis for this court to determine that she's unable to the degree that it would require an additional bond hearing she they haven't to my knowledge petitioners have not challenge the fact that the mother is unable to pick up the child to my knowledge the mother has not to date but as far as the record shows the record that's aliens that suggest that there might be a due process right when someone's been detained a reasonable length of time to at least one bond hearing and your friend on the other side makes a point that a bond hearing is procedurally different you live here you get it i j when we look at cases like charges all bridges should we be waiting whether the detention is too long now or maybe it's not too long now but it's too long  might there be a due process procedural due process right here to a bond hearing and not just a parole hearing at some point so as i understand it your honor what has been claimed by petitioners is a procedural due process claim there is also a line of authority that is about the substantive due process rights of the detainees i really think that's what they're arguing even though it's been planned as procedural due process and what the supreme court has been quite clear about ins of itis is that the test is when the detention is unreasonable and the facts of the vitus were not simply that it was long but rather that there was no end in sight you had two petitioners in the vedas whose home countries would not take them back and the united states would not allow them to remain and so the detention was likely to be indefinite the same was true in more where the court said six months for a lawful permanent resident is not presumptuously unreasonable the question is is it going to be indefinite and here we could not be further from indefinite your honour's as petitioner noted although it's not  there is going to be an asylum hearing at the beginning of april to answer judge gave us this question to petitioners typically there is an oral decision not always but typically there is an oral decision if there is additional appeal to the b i a of course the agency will have to make a decision at that point but that was an idea of what the medium length the time is for these appeals you can't you can make a promise obviously but we have to consider whether this detention is going to become a reasonable perhaps if we follow that line a reason and if it becomes unreasonable at some point the proper avenue is to challenge it in the district court allow the district court in the st instance to decide the issue and then if petitioners are dissatisfied to appeal it to this court and  would caution your honour's in the due process context not to articulate a bright line rule that has never been how the supreme court has evaluated due process there's always been a totality of the circumstances type tests so to say it must be six months or even to say well asylum generally takes x amount of time it should be x amount of time is to do some violence to the way courts have always interpreted due process if we're going to take that totality approach to due process should we really be limiting ourselves to duration  considering other circumstances including for example the consequences for the mental health of the gotta take answer in two parts or are the st is that the district court below which helped findings of fact heard witness testimony and determine credibility found that evidence unconvincing and the nd your honour's is that in the totality of the circumstances approach it should not be a bright line numerical rather taking the teaching of the supreme court in demoralise inza vitus in the  mentioned earlier the teaching is that the question is whether it is essentially tantamount to indefinite prolonging detention and that's simply not the case we have here even if the appeals take it i think standard period of time the six years they haven't enacted a bright line well they haven't said that there's a certain period of time where detention is unreasonable that was the holding of diop that jennings largely abrogated this idea of placing a bright line rule instead what courts have said subsequently essentially tantamount to indefinite is there no end in sight and here you could not have a clear end because there is a delineated process an asylum hearing appeal to the beach and at some point they will have exhausted or they will have isn't appropriate for us to take account of the length of potential length of detention in it in crossing that threshold that you're seeing is it indefinite and if there's no determination as to at what point in the future some prophecies that may or may not have happened will result in this being the sensually indefinite that hasn't happened yet and that should be before the district court in the st instance to make findings of fact and decide what actually has happened to some degree how long this process takes is outside of the government's control because it depends on what petitioners end up deciding to do what challenges they end up bringing whether they decide to appeal so for this court to sit now and look forward into the future and say i happens in the future then it will be indefinite i think is an inappropriate thing for the court to do at this juncture the supreme court is clear you look at where the petitioner stands when he or she made his or her challenge here it was under six months there was an end in sight and that is not presented leon reasonable as any court has held under similar facts under any section of the statute with mandatory detention you've indicated that  don't need to consider the mental health consequences for the daughter based on the district court's findings but here there were three experts including the government the district court  set all of those aside and instead offered its own medical opinion that there were no mental health issues for for the daughter anyone who enters with a plan with their own family to come to the united states illegally has unclean hands and particularly if they if they do so while pregnant to the extent the district court's findings and determinations there go contrary to the evidence in the record or suggestion that might might be read to incorporate considerations outside of what might be anticipated for a district court to weigh in the mix it is it is it really  is it sufficient for us to say because of those findings of the district court that there was no mental health issue that we we should not factor that in the mix given what actually appears in this record so if i may answer in parts the st is that petitioners had the burden of proof before the district court they were coming to the court asking for an extraordinary form of early preliminary injunctive relief on a very short time period the default assumption is that everything is the status quo unless they can convince the trier of fact who here with the district court otherwise so the status quo is that there is no evidence of mental health impacts they presented to experts they were allowed to present all the evidence they wanted to present in contravention of the rules of civil procedure and the rules of evidence and the district court judge allowed all of that testimony considered all of it and didn't credit it he also didn't credit the representative of berks who is not a government employee but who works in the perks facility who also presented evidence that he didn't see any mental health impacts in the child so in the absence of evidence to move the needle the party with the burden of proof hasn't moved it and so the default is that there was no credible evidence of mental health and back then he was entitled to credit that the and more important point is that i'm not sure that it matters because the constitutional rights that are being claimed here no court has ever recognize there's not one case in any of these briefs not one where because the child had the right to be released the parent had to be released as well there's not one there's cases where the child is returned to detention to be with the parent that's where she is that she has the choice to go with her mother she has the choice to remain with her father no one has ever tried to forc her that's where we are there's no case that stands for the proposition that when you come to the country isn't clandestine ilian and you're classified under the ins under section of the i in a for which detention is mandatory and there is only the most narrow exception it's in the discretion of the government that you have a due process right after only less than six months to require the government to detain you or that you have the right to a bond hearing when the statute plainly says you're not entitled to it and there's no constitutional st amendment right that would color the instant facts in this case as retaliate where as petitioners routinely fail to emphasize they requested to be detained it i understand it was not their ideal situation but faced with return to mexico or being able to remain in berks they requested to remain in berks and that fact colors so much of why they remained in berks so didn't they do that we think express express y indicating they were not waiving their right to appeal that the issues of bond and release i would not personally characterize the facts as that they clearly reserved that right it was not discuss but even if they had reserved that right nobody has prevented them from challenging it but it nonetheless plays into the this or court's analysis and its proper conclusion that the reason that they remained in berks was at least in part motivated by the fact that they had created a unique situation and they had intentionally separated the family when they came to the border so they should we be concerned that the district courts suggestion that anyone who enters the united states and makes a plan to do so with their family and training illegally and then has unclean hands it is and to the extent that may have colored other considerations is that something should concern us for purposes of this  fourteen was removed was barred from returning came back to the country anyway that shows a inability or unwillingness to comply with immigration law he considered the fact that the family did not disclose the mother's presence in a meaningful or helpful way at the st instance in which they understood from their point of view that the child was experiencing mental health impacts you would expect that a family that was not attempting to to some degree take advantage of the system the moment that they felt the child was at risk would have immediately come forward and said the mother is here she is in new jersey what can we do to facilitate release of the child to the mother and he considered the fact that even once the mother was identified and the agency agreed to release the child didn't oppose bond said the child can go at any time you know all the mother has to do is come and pick her up will take measures to facilitate that that the family still chose to keep the child with the father while at the same time challenging the conditions under wh she was kept so the district court below had this complete evidence of record and that's one of the many reasons why the district courts should be entitled to deference in its determination of the facts its findings on credibility and the inference is it true because it had so much more than your honor to have on a cold record they got to see all the witnesses sit in the witness chair and it got to decide what it believed and what it didn't believe and there was evidence beyond just the fact that the family came to the united states is  below denied but if the district court also worked through each of the claims and found that there was no likelihood of success on the merits the district court balanced the equities and determined that of the four factors that petitioners had to burn to prove in order to be entitled to an injunction they could only prove one and the court also determined that there was unclean hands so i would argue that there are there are many paths to rome here and that it almost doesn't matter that the district court made that finding but frankly your honor the district court was the one he the evidence and the district court heard all of that evidence and drew its conclusion and it is not the role of a reviewing circuit court to ask itself if i was the district court judge what would i have done the standard overview is could any is there any way to say that this finding was reasonable under the facts and not to substitute your own judgment and it on clear error you really have very little we get that bank here on this but the but the if the mother were to show up are there any consequences for her she should have to pick up her daughter she's not in removal proceeding in the entirety of this case she has been placed in removal proceedings you're correct her address is known she still hasn't been served with anything she's still not put in removal proceedings i understand her to be derivative of the father's asylum claim and it was this is not in the appellate record but it is been offered many times by the government that if she is willing to come and get the child we will do whatever it takes to facilitate it and it shouldn't have any fear of coming to pick up the child from what you just heard that the mother is unable or unwilling to come pick up the child so it sounds like she's on willing to be unwilling to come pick up the child and the reason she's quite willing is because no one not one mental health professional have ever supported separating me from mr h and setting aside what the district court crown who is credible who is not credible mr moscow wasn't even allowed to answer that question when it was asked from him directly you support separation of mystery media and you can just use your common sense here you don't need to have a mental health expert to suggest that separating a jato from her father who she's been the sole caretaker for the past very traumatic ten months is a bad idea a terrible idea for her but she's feeling compelled now to make a choice between leaving detention and being with her mother and baby brother or being separated from god loving her for what why not just show up pick her up for the purpose of getting her out of this clearly facility and the father will attempt to do what he care and to get released if he care if not they were going forward with the asylum hearing we're going forward with a possible appeal to the big game they were going for with the possible petition route for review to us because again the solution to one step aeration is not to do another separation there is lots of literature either way you've got is a separation well we're hoping that the result of this case would be that there would be a meaningful review to provide this family process to determine whether that separation years can be justified but i think ms finkelstein was correct that you haven't cited a single case that was you know leveraged one parent and a child out of cut out of custody in order to go to another parent so you're asking us to be the st court to hold that no had you  saying that what our argument is that there is a constitutional deprivation here of the liberty interest in family integrity and that the remedy you were asking for me enter is a bond hearing where the government bears the burden we're not suggesting that the two issues are beat we're being completed by the district court that this issue of the the gerber december with respect to the bond and there was a hearing in the judge said there is no jurisdiction that does not appeal to the be a right correct so why don't we let the process play out because we have don't have any timeframe during which the b i will make its decision i against the father then his and indefinite detention and to go to the separate point this court can still find that the district court erred in finding that mr h did not have a likelihood of success on the merits on last twenty years with a person had some status in this country and was on the that side of the line but you know ms a and said vetus understood ms a this way say that your clients on the other side of the wine as reaffirm it not did not reject it just distinguished it saying those are on the riving alien side of the line soviet is castro these other cases are on the people who have been in the country and started develop connections you know in some kind of status the person had been excluded was on ellis island was trying to find a country that would take him no country had taken that is not this case mystery can you can cross the border they were on u s soil and the case law says that they are entitled to certain due process rights as a entering the country does not you know if someone gets caught one hundred miles inside the border the case still treat that person is notionally at the border the cases you're talking about are ones with a person was in some kind of status got withholding removal was lawful permanent resident you in the middle district of pennsylvania and then the district of new jersey here that attention is on the reasonable because he and his daughter were entitled to a bond hearing the st few days that they had stepped foot on u s soil and were being detained in the letter you have a number of district court cases on your side those or are those distinguishable because in fact in our view our and them problem is financing and so i apologize that court talks about how it's a very fact specific evaluation to determine if there is a liberty interest in family integrity in that case there was a very limited detention of some parents and the assertion in that case was that they had an interest in family integrity to communicate with their families to let them know where they were it was not about them needing to be together the petition for hay vs i think was brought within two days after the arrest further the court found that because thirty of the families had been unified for humanitarian reasons that also undercut the petitioners argument that case i think you are does talk about there could be circumstances in which there is a liberty interest in family integrity and you have to look at it on a case by case basis and then aguilar the assertions were a little bit different and so were the sadness of the parents and the children further look them in cell case it talks also about the fact that you have to look back specifically at a case to determine whether there's a liberty we integrity and therefore the father types along because of family integrity despite the fact that the mother is then offered the opportunity to pick her up purportedly with no consequences no your honor we're not saying that the father should happily skip out and that's it and that we're done what we're saying is that because mr h and mia have are cyclical interest in family and in the liberty interest and family integrity they have a right to a meaningful review of that before that liberty interest is encroached upon right now it's being encroached upon and there's been no meaningful review of their detention together well you've got it you've got an asylum hearing coming up you've got to appeal to the with respect to the bond hearing disposition and some of those cases and it's unknown what that timeframe but it's what is it in reality they don't have to be detained together the daughter can be released probably tomorrow but that encroaches on her liberty interest know there has to be a meaningful review of that detention together if at the end of the day an immigration judge decides that there are reasons why mr h should not be released such as that he's a flight risk if the government proves that then the family's up with that but they're entitled at least to that inquiry for example somebody who's incarcerated and there have been cases where incarcerated individuals have sought to have certain rights abuses me their children to see their children etc based upon liberty interest and family integrity but not based that was a process in place whereby somebody is convicted and sentenced to prison for a certain amount of time here we're just asking for a process her view their detention together and that this court inquire of sanchez talked about how detaining him without a bond hearing while he pursued his bona fetal withholding only claim but effectively punish him for doing that but time out when our process for retaining them separately if that especially if the daughter can be released tomorrow because her liberty interest and family integrity is being encroached upon because she's been forced to decide which parent to be with she loses one parent i don't way she loses that family unit but it isn't the mother is not a bad person that you don't want to with the mother correct i don't think there's ever been an allegation that either parent is anything but loving ok and so if that if the opportunity for the mother i'm just talking about the realities here if the mother can pick her up tomorrow and we're being told by mystical staying without consequences then why not have a video yourself of that opportunity and then fight with respect to the bond etc pertaining to the father you've got in terms of this family it isn't that she's going with somebody who's not a family member she's not even going with the welcome she's going with her own mother i'm missing something your honor just talking plain go ahead common sense and not common sense because really has been with her father for harrowing ten months they were in mexico under some very scary circumstances they've been in berks county she has seen every single one of her friends leave her father is the one foundation she has had during that entire time plus we're talking about a child from six development during that period alone is significant and she has bonded with her father to separate them with green trauma guys there there's some testimony of that but there may be other testimony but it isn't that so significant that she can't be separated or given that her mother seems unwilling to pick her up the family must consider pretty significant that she needs to be with her father for her own sake appropriate or not in or the reclassification which was made in june of two thousand and nineteen to determine that in april when they st stepped foot on u s soil they entered without inspection and therefore would have been entitled  is not checked and i believe that that is at appendix eight hundred and thirty four dollars that should be the notice to appear they were not designated arriving and lance until they returned judge reasonable most in the same fashion because there are basic constitutional rights that even the arriving elements have liberty interest under the th amendment is so fundamental that the district courts subsequent to jennings have found that  dollars be non citizens have a right not to be detained for an unreasonable period of time in this case it was unreasonable to detain mr h as of the without a bond hearing as of the day that he arrived here with m and it is unreasonable now they've been detained for a significant period of time but it's not just the time that you will get into the circumstances he is and silent seeker his asylum claim was reopened after the b i did something it rarely does finding that he different than other families you know from from from council sure i get why isn't there more anything specific in the record if that is the case and how could we reverse absent the thing in the record but i think that the testimony is very specific in the record the testimony is from an attorney who testified in this she was not challenge on any of this and that the nonprofit that she runs is the only nonprofit that is in berks county interviewing the recall such representation but i wouldn't want to say that it hadn't been made i just don't recall that being me and it doesn't ring a bell the government witnesses testified this is the only family at berks where there's ever been an attempt to separate a parent from a child he couldn't remember and other family as if you're honest were simply asking that this family had something that they were entitle to when they cost a border which is a new poll of their detention together is that off michael that's not