trying to define what official detention means under thirty five eighty five and there are a couple places we can look first we can look at the b o p s own program statement and i think the language  the program statement is important important program statement reads the official detention does not include time spent in the custody of ins under the provisions of eight u s c twelve fifty two pending a final determination portability an inmate being held by an s pending the civil deportation determination is not being held in official detention ending criminal charges now i think it's contested here that on the first day mr zavala was an ice custody he completed the form i eight seventy one which reinstitute the order of deportation two thousand and six and we've cited lot including eight c f r to forty one point eight that is a final order of deportation there was nothing further to be determined in terms of  our request for judicial notice is a sworn statement where mr rodriguez of allah admits he was deported prior we've previously he entered illegally without permission he has no fear of returning to mexico that's all done on the first day he's an ice detention september twentieth twenty four team in this regard i think it's relevant to also look at the detainer that was filed by ice on october fi just before the criminal indictment was filed in las vegas and that is an exhibit the a declaration and that detainer notes that in order of deportation asking is simply for the b o p to follow its own stated rule well we know what you're asking but this is i think this is a bigger case that anyone can see michael little case could just say oh what the heck just give them all the credit for time served but this is i mean it's a systemic way that this happens and i think you know i think you're minimizing the supreme court in reno peak or a the supreme court stated credit for time served in official detention under thirty five eighty five b is available only for those defendants who were detained in a penal or correctional facility and were subject to p o p control if time spent in official detention must be spent in a facility controlled by the b of he how can time spent people that there are on state charges there on federal charges there are emigration card charges but the supreme court seems to be pretty specific on doubt and yes your honor that seems to vote against you your honor i think  justice rehnquist in footnote five incur a actually addressed this point in footnote five he says in some cases a defendant will be arrested denied bail held in custody pursuant to state laws being turned over later to the federal government for prosecution in these situations b grants credit under thirty five eighty five for time spent in state custody even though the defendant was not subject to the control of b o p these situations are obviously not governed by reference to thirty one forty two release or detention orders but because the only question forces whether  versus correia limited itself in footnote five explicitly and said what we're dealing with here is the question of detention verse release and thirty one forty two justice stevens in re you know i get why he wants all the credit but if you're in custody for something i mean it just would seem that when i says you know that the statutory language and parade does not seem to support your argument cards out explicitly says that we're not dealing with these other issues such as state custody certainly not immigration custody so i suggest not happy authority to bring criminal charges against someone and i  because the prosecutors decide that right yes your honor and in conjunction with and i would note in that regard your honor on september twentieth twenty two on the first day of ice custody on that form eight seventy one those questions essentially it to illegal re entry and that completed form which is then signed by the deciding officer at ice which is a totally complete process in terms of the deportation determination prosecutors don't my charges when they have people dead to rights they choose not to which i don't expect you probably complain about at that particular point but that i mean if if ice could live charges your argument might be stronger right well your honor i do think what's important here is this will always be looking back this will always be the v o p someone has been sent in someone's been prosecuted we don't have a question of whether they're going to be prosecutors not that person was prosecuted and they ended up in federal court and they're going to be sentenced and this is a decision made with the entire history with the entire file that the computation center has looking back it's not a question i know that the district raised the issue of we don't know whether ice will bring charges charges were brought and here i would just say yes to the second period of time after an indictment is brought in las vegas and then dismissed and then for no reason that anyone can explain  shuttled into ice custody for a period of eleven days while a complaint is being filed in the us in los angeles where the u s attorney had specifically said in this missing las vegas venue properly applies to properly signed deportation documents on september twentieth and then we see the charges so and the facts in this case you have a pretty clear that argument that he may have been a nice custody that he was really  cases than what the o p s program statement already says and in terms of applying that the g o p program statement says you don't get credit if you're appending it in order of the portability under that and if you're being held by an s under the provisions of the us it will fifty two pending that final deportation of portability it's pretty easy to apply in our case and in other cases where you have an order of deportation and it's  word there's nothing more to be done and i think it's important the reference to eight u s c twelve fifty two you're a u s c twenty two refers to judicial review of orders of deportation and if we look at the form here that's completed on the first day the alien is not eligible and may not apply for any relief under this chapter that's explicitly referenced on the form the regulation nothing is going to happen and i think it's very telling when the government cites to the declaration of mr glegg says well stuff  any but it's a different crime it's not he's not going to be charged with the illegal entry he's going to be charged with you know he's going to be charged with it like some how maybe he was committing a murder you know i don't know you know that's why i think it would depend on what you're saying if he's here and it's he's going to be charged with illegal re entry at the point that ice takes him in custody it's a fait accompli that if he's charged with illegal re entry that you want to perception that from the time he was put in i on the ice hold that he gets credit against the other right but is that is not only to this type of crime or is it to any type of crime where our i think what we're saying is if some nice custody and under the b o p s on regulation and there's no ongoing process and there can be no ongoing process in terms of determining to portability and that person is then shot shuttled into federal custody for furthe prosecution on illegal reentry or whatever is that the crime is i think just applying that rule which is pretty simple to apply and the b o p s own regulations incorporate looking at the ice process and what is happening  eyes in those situations the person should receive credit if their time in ice custody is not for any purpose in terms of can turn into portability or determining anything in terms of judicial review under u s c twelve fifty two no pending issue of determining to portability and i think to pull ability in the case is i think in the briefing is a word that often we overlook but to portability as any dictionary will tell us means that someone is liable to be p's calculation of that sentence and this requires certain factual determinations that are more appropriately made at the district court level to find whether the time he spent in ice custody was for anything more ice and determine what was that purpose of the two periods of one he spent in the ministry of custody that type of factual inquiry often is racist sentencing court when defendants ask for sentencing consideration under thirty five eighty three for the time they spent in ice custody that is the appropriate time when that indication actually can be made the record can be flushed out and indicated to be ok i guess i don't understand why or even saying that because ice can charge someone with a crime right yes your honor so how could it whether how could it be isis intention to if for someone to be charged with a crime waived because in looking at the full nature of the full record particularly the magistrate judge is reporting a recommendation that we're asking the court to affirm that the district judge adopted and we're asking the court to affirm they indicated that that perhaps where there's an indication in the record that there might be an intent to prosecute if i see you about that that perhaps in those situations credit for the time in ice custody would be appropriate but in this record that's completely lacking and therefore we we arrest and we fall back to the supreme court's clear language in reno that states that you know was in a completely context and it was talking about pretrial release versus pretrial detention i understand that there might be some broad language that you're playing to here in that case that has nothing to do with the decision in that case you make that argument clearly got up and appeared before i actually kind of thought maybe i was on the wrong case when you started talking about that and i'm thinking like all of that come from oh i apologize your honor i mean i knew i was on the right yes and this was a release it was a release of the condition of community confinement right yes so he was released he wasn't considered detained yes sorry but in that case to distinguish the facts you also still completely separate from the the decision from detention and a criminal charge because there are warning no criminal charges that let you down if you could make that argument as to the first ice detention don't you have a lot  charged would need to review the immigration file would need to prepare that submit it to the united states attorney's office and then there the prosecutors would need to review it ensure that compare the photographs ensure that the documentation was in order to bring charges that the charges here were a bra were brought relatively quickly it was ten days and that included two weekends shortly before the holidays the arguments well yes your honor and i think that it's clear that according to the program statement that official the tension is does not include time spent nice custody and the cases that appellate rely on indicate that there should be government was the setting whether they wanted to prosecute him and through you're going through this elaborate process of making sure you really could the porter that's a factual question it's not covered by the regulation which is you can hold them up until the time you get final orders so if there has been a criminal prosecution they certainly reasonable possibility that you will hold him for deport him this was after so there must be some way of determining the facts why we were holding them it would seem to be reasonable if shortly after you held them up until the your honor at that but the answer to course question about it should there be a rebuttable presumption and then i will try to explain what the record says about why he was being held regarding the rebuttable presumption there should not be there was a in those records there is an indication that the deportation was stopped or cancelled so there is a clear indication there that he was being held for criminal prosecution in this case there was nothing to indicate that the wheels processing th deportation had stopped in any way so there shouldn't be a presumption that just because there is yes your honor and as to factually in this case the record simply does not have anything that indicates that the the only reason he was being held was for criminal prosecution and that at this point is not because the facts  honor but there's been absent that filing of criminal charges that he was not being held because of the pending criminal charges and absent more facts in the record that are lacking here those ten days should be considered administrative and he should not get credit for it if i understand your strongest argument fak your strongest argument would be fact thirty five eighty three includes the definition of official detention perception and to tell you how to do your job that those statutes that that supreme court case and your program statement tell you how to calculate it and that's that yes you are right not unreasonable to so could i suggest departed him during those ten days according to this record there was nothing to indicate that they couldn't have they could have and then perhaps criminal charges might not have been filed in the second district  honor i the record is not clear on that point i know that he was transferred within ten days from nevada to california transferred from custody to custody but he could actually be in a state it's not the appropriate way to to to handle the appellant's interest in trying to get credit for the time that he should raise it o p s to do that without the raise and since that's your argument that she the point at which they enter into martial cosies on the federal charges that the burden is on them to show when when they should when they should be getting getting credit for that time and  court takes that into consideration in determining the credit that they previously should get