scores where mr roll mr morris been detained by the government without a bond hearing that is without an individual his determination of whether his detention serves the legitimate purposes of the immigration detention statutes for the past twenty five months now and as you've explained that detention is both contra to study torah scheme and the fundamental due process principles before i begin i want to clarify quickly where this case stands because it's slightly different than court has entered in the merits review but everything we've said is still important still relevant i think for two reasons one practical and one legal the practical reason is that the merits panel in this case has before the government's motion to remand the case back to the da for some clarification and so it could very well be that we would be back in a position where under our theory there is no administrative finality under roman at one time for the argument  no it's not there's been no briefing the government is moved to a briefing in advance pending that motion to remand so the essentially the whole case has to has to proceed but the legal reason why how the statutes work together in the case of normal removal proceedings that is not reinstated proceedings which is well proceedings are pending at before the agency will be the immigration judge of the  alien and detention during that ninety day period is mandatory the implication being that the mandatory nature of the detention is to serve the imminent removal that is about t order or move will become final in two thousand and eight so i think a couple points of the about that the st is an order of removal once executed cannot just be executed again without minimal they are required in order for the prior removal or to become affective against this person because that effective against this person now and that's how the withholding comes i mean maybe i'm thinking about it wrong i think of the removal d order now is final and he so he is removable and then the question the seeking withholding on is don't remove me to el salvador but let's d say we had an agreement with mexico and we could send him there ok he'd still be remova goes to a practical question of whether in fact is there authority to remove this person legal authority or is there a legal impediment that stops the removal from occurring and i think that's that's and as there are legal impediment right now right now the legal impediment is this court stay so that's what you're saying the courts day has it back yes so our position is that while proceedings were pending in the agency themselves final because that is what determines whether this removal or applies to this person because the explain that to me is the way let me tell you the way i'm thinking of it and then you should tell me why i'm wrong so when i read that what i see is he's reener  legally after having been removed and any really he's not eligible for relief under this chapter and he shall be removed so under this chapter he's were removed a person and so i get why i can seek withholding relief but i view that as something totally different but so so importantly section if i have those those results occur once the attorney general has made the determination that in fact this is the person that is in fact subject to that prior removal order and that's that's played out in the regulations that's already been made so it's been made in this case but those reinstatement proceedings are themselves not final  until the withholding only proceedings are also finished and then they go up to the court of appeals together so finale of the reinstatement proceedings waits for you can't get review right you two i did not in fact reenter illegally my reentry was legal if not it is he contesting either of those things no he is not but the availability of judicial review is very limited and he's not seeking it reinstatement and withholding so the way it works is that those are the under far overseas foreign affairs restructuring act the review of those two things has to happen together accident that takes precedence over it and you as a supreme court of those those proceedings with holding only proceedings are available notwithstanding expires you want to get your constitutional i do have very little time left i think we've demonstrated a  in less there's a bond hearing to determine whether the purposes of the immigration detention statutes are in fact circle but he is removable in the sense unlike  el salvador will take him back right time's expired so petitions for review they have read that as a matter of constitutional avoidance tool to avoid suspension cause issues to preserve some form of judicial review have read that to allow through the reinstatement of the use of the removal  order to allow that to create another round of jurisdiction to review only the withholding decision so there's no review of the underlying removal order there there's no in those courts none of those courts of said that that that provides a way around  and what happens following reinstatement so in the original removal proceedings you go before an immigration judge you can raise a withholding claim a calamity the convention against torture and in that process as part of the review  removal or you might get from the immigration judge or the board of immigration appeals you can also seek review through a petition prove you up to this court a convention against torture claim there's nothing unfair that says it overrides and allows review of the underlying removal order remains final it's not subject to further review also that line of cases that preserves judicial review through petition proview the decision in the withholding on the proceedings those cases say explicitly that they don't deal with the question at issue here none judicial review holding only proceedings it can't be read to apply in circumstances such as this and we know this from clarke even more recent cases dealing with matters of constitutional avoidance unheard of with a bouncing back and forth can you just detain him that entire time without any due process concern so i think it's important to look at the individual circumstances of the case there as a and ones are he does is is a direct individual due process determinations based on the factors of an individual case and so i mean when you're looking at factors of the individual case what's the  say our versus the right of the judicial officer who conducts the bond hearing and if we set a bond hearing was required i mean wouldn't that part of the judicial officer who's conducting the hearing determination that certain categories of aliens should not get a bond hearing and that courts cannot read that what congress doesn't determine what the parameters of the due process clause require i mean that's just not within congressional power certainly your i mean that would start i would hope that congress would take that into account legislation but that's not who in there that's not the key but then our system  it's not ordering a bond hearing it's that the individual should be released from detention but what but it's important to consider what the court said or those constitutional limits on detention in zavvi das he didn't say he was addressing prolonged detention interrupt you i'm sorry didn't i remember sentence specifically i can find it where justice prior says as detention he says something about six months like six months being the benchmark and then he says as detention gets longer the constitutional presence at the point of removal and congress can in their cases going back to the s we said this congress can determine that for a category of individuals that they need to be detained in service for move proceedings and their obvious the court even says it's possible that congress could an act a statute that says into it that that requires indefinite detention but it would have to do it in more it would have to do it more directly than it doesn't he said what they thought congress was trying to do in one thousand two hundred and thirty one was so what do we do with that in other words i totally agree with you in a post jennings world we can't read a bond requirement one thousand two hundred and thirty one but it what if he's detained twenty years because it's taking forever between the agencies and the courts i mean what do we do with that that's really what judge givens is getting at which is what is the due process clause tells to do in that situation yes your honor and that's honor but that is not any indication this record that this matter is going to be resolved but the question again is why is it twenty five months or why is it twenty years right so i mean us supreme court says that the of detention must be assessed by by considering the statute its basic purpose the tension remains authorized by the constitution so long as there's some significant likelihood of removal in the reasonably foreseeable future and so it's a forward looking remedy is this detention still in service of removing the individual so in zavvi os where there wasn't a pending claim what happened there is final removal order nothing nothing continuing going on in any administrative agency or in the courts and the government was trying to remove those aliens and try a country after country after country and could not find a country that would accept we don't have that situation here we don't have that situation here and what the court said was happening there was it looks like there's going to be no country which will accept these people so it doesn't look like this detention is in service of removal anymore because it doesn't appear the government will ever be able to remove this individual it is related to we're just going to detain this pretty individual in for ever because there's no possibility that they will be removed here we don't have that circumstance petitioner to return to the united states he had a final removal order he was removed the united states  returned illegally he has an order that says he has no entitle men to remain in the united states even if was granted withholding it would not lead to him having any status the united states says this order saying that you will be removed from the united states where he is asking for is withholding a form of protection from having that rule x order executed to el salvador his proceedings before before the immigration judge were done within five and eighteen and he has sought us stay of a stay of those proceedings pending seeking motions to reopen before the b i a and so that was that was granted last may and so it's been since since last spring that that that that appeal has just been pending because he has asked for it to be in our hands on is the government's position as simple as this that if he can be removed in other words if there is countries willing to accept it and the delay is of his making because he doesn't want to go to the countries there can never be a due process violation in detention does that make sense yes or i don't know that i would say there were in there can never be a due process violation but i would say there isn't going to hear i get that at what point though there's a calm and well point at the point when it seems like there is no possibility in the reasonable future that he will be removed that his detention isn't in service of that removal and how does a court so here the only barrier to his removal is his is stay and pretending petition pending petitions for review before this court and as we say in our brief a number of other courts  determined that just a pending appeal on a petition for review is not enough to find the removals not reasonably forseeable fortune not to have a question about section one thousand two hundred and thirty one do you think it kicks in when the  reinstated so what happens is that such as quick as he got captured or found he got captured and the government determined that he was had a prior removal order he was the individual named in that removal order and that he had illegally re entered  government official needs to make that determination tell tell the petition they made that determination give him an opportunity to contest any of those determinations he didn't contesting those determinations and so that point the removal orders reinstated if it's reinstated at that point if he's expressed a fear of returning tell salvatore again if if an asylum officer finds that fear is reasonable meaning he could raise a plausible claim for withholding then they'll put him in withholding only proceedings because he already has  reinstated order why did that order become final so the removal order was final when it was originally executed back in two thousand and eight and then it was reinstated the moment he he returned and was returned to the united states illegally and was apprehended so it was finally at that point when his reinstated but also what have contested i know he did but what happens then is it final are no then is it final which is that he would still have a final removal order at that  point but again it the only ways in which you can test that is if he was arguing i wasn't previously removed i did not enter illegally basically arguing that i don't fall under this reinstatement provision because i'm not a person who absolutely did not hold that there can only be a due process violation when the sort of indefinite detention concerns that were present there are present in fact it's exactly the opposite of the quote is quote if re lose the withholding he's being deported right and even if you don't lose the deported withholding he could be deported i think as we say in our brief reasonably forseeable it's not about whether it's going to happen it's about the time in which is going to happen it's forseeable in a reasonable period of time but the point i'm trying would like to make is that even where removal is reasonably forseeable you still have to do a due process analysis about whether the detention serves the purposes of the statute and those purposes are the congress get to make that call i don't understand why do we have to make do a due process analysis of that well congress has i think made a call but i don't think congress does get to decide the balance of due process as as in the balance of due process i thought what you says if it serves the purposes of the statute the maybe i misunderstood and so i my point is if congress says detention to that and then we see if that could be a due process violation right whether it serves the purposes of the statute or well i think the important point is that in the individual case detention will become un reasonable and thus unconstitutional if it no longer serves those purposes and that is precisely the purpose of the bond hearing is to determine whether for this person you know are those those legitimate purposes still being served or whether  a stay is granted even if the proceeding in which that say is granted is technically a review of a reinstatement order rather than a removal order that it still triggers the roman