principal part of the balance of the issues in this case and we ask to reserve two minutes of rebuttal time from mr consist time that's fine before as settlement agreement is a contract and it binds the united states it's agencies and its officers and defines their duties and obligations in an area of plenary and unique federal concern the duties and obligations of the united states in relation to the detention confinement and release of minors in this case a six year old girl from guatemala when they does have language any minor may seek additional review in the united states district court with jurisdiction and venue and then in such an action the united states just record shopping limit entering it order slowly to affect individuals individual claims of the minor you can connect consent decree grants subject matter jurisdiction your honor let me up answer that question two ways st and foremost the relevance of the exposition that i gave just a moment ago is that this is an agreement that isn't forcible as a matter of federal common law it has binding effect as a matter of federal common law that means that claims arising under that agreement are claims that arise directly under federal law and the supreme court held in the illinois versus city of milwaukee case claims arising under several distinct issues come up in the enforcement agreement like the floors agreement the st is the proposition that as a general matter one just report will not enforce directly the injunction of another just recording that issue is not implicated in this case the release thought here is not a contempt citation against the united states government for a violation of an order relating to the minor plaintiffs in this case cases from the supreme court on down have consistently said including the flo district court in the th circuit that consent decrees are essentially contracts they have some aspects of an order or an injunction when they're incorporated into the order of a court but they're essentially contracts and the issue of an injunction to import an injunction would only arise if a plaintiff sought to do something which is not at issue in this case which is to seek penalties for a violation of a specific order entered by issuing court now this separate issue and the issue is insofar as you consent  are there form selection clause considerations about where that contract can be enforced and of course the supreme court has long held that form selection clauses in contracts are enforceable that's the common carnival cruise lines for suitcase and most consent decree  either say by their own terms that jurisdiction and enforcement is reserved to this issue in court which constitutes a form selection clause as to where that contract can be enforced or they will simply leave the matter under graps time i misspoke i think populations and adjoining for the imprint but could be registered in new york but it that the injunction you got to go back to the northern district of ohio you can't come here in order to enforce it precisely so your honor and the remedy sought for contempt for a violation of the hottest records injunction then it will hire the ohio just record is the one that has to issue that remedy but if the remedy sought is simply a violation of the contractual obligation on an ongoing the united states has undertaken to be bound by that is a remedy because you saw it in any court that has jurisdiction over the settlement if i may the supreme court's decision in the conan case which the government relies upon very heavily that case doesn't say that settlement agreements can only be enforced in the rendering court that case says that ordinarily settlement agreements are enforceable only as contracts and the special circumstance of the issuing court reserving jurisdiction for itself on an ancillary basis to issue  cedes is in forcible as a matter of federal common law and as a consequence is federal question jurisdiction so you haven't focused on the relevant distinction from some cases like conan and the patent litigation where the federal government isn't a party to it we had this question about whether getting forced in state court or federal court with the federal government's a party deviated in the exceedingly unusual to expect that this would drop in state court and then if it's going to be brought in federal court it's really just a matter of venue as to which federal district court so that seems to be really an issue when we're dealing with consent decrees that do not involve the u s government as a party because it's a clear full trust kind of federal contract with federal common law i think that's exactly correct  honor if the panel is of that view i'm delighted and then the only question is what is the appropriate venue in which to have this claim brought and as we've explained in our brief the suggestion by the court below in the government that this word jurisdiction in paragraph twenty four  lives in the eastern district because the plaintiffs are residing here they're subject to detention currently in the birds facility that means that a substantial amount of events giving rise to their claims namely that the minor six year old girl's detention is in violation of the government's flo virtue of the government itself having committed to astern provisions and separately that this is a contract that is governed by federal common law those are two to your gui those are two different alternative bases both of which we provide subject matter yours diction i believe the answer is yes allow me to clarify one point the original basis of subject matter jurisdiction here is the federal question statute and the basis of that jurisdiction is these are claims that arise under federal common law because of the unique in pervasively nature federal nature of this contract which binds the united states government that is a direct line from clear food prices to a nd possible basis for independent subject matter jurisdiction would be an extension of the jurisdiction that frankly is how most of the federal district courts have addressed this question have have viewed the matter and i actually think it's a much more sit straightforward proposition to say the court need not reach questions about how insular always the case in some of the cases that the government has cited for example the settlement is simply a damages award and the court retains jurisdiction to administer any disputes that might arise under that settlement so i don't think that's an inevitable feature of these decrees don't once again  and i want to make sure to address this point you're hundreds it's it's informed a couple of your questions appellate courts and indeed the supreme court consistently said that consent decrees are best understood st and foremost as contracts that is the fundamental principle of the kukkonen decision there are circumstances where a good the court that administered issues in retains tourist action over the consent decree has occasion to enforce it through the use of its income to powers where that is court issues an order and there's an argument that a parties in violation of an ongoing order the place to seek in force may have that order through contempt sanctions is the court that issued that order but what was there to injunctive element of the consent decree entered in  affairs with your position but my concern is that when i do anything i'm really finding that says if you have something better jurisdiction is a northern district of illinois district court case but i do looks like the nd circuit in the st case and maybe mr mapes the th circuit and the th circuit seem to think that when you have an in joke development in the consent decree you've got to go back to the court that initially entered the concert to prove your honor allow me to respond to that in several ways st of all most of the cases that talk about ancillary jurisdiction as a basis for enforcing a consent to create are not talking about excluding other jurisdictions from the possibility of entertaining in a foresman action they're talking about whether there is an independent basis for jurisdiction to enforce the agreement in the st place these are cases where the parties have either not argued with the court has found that there's no other independent basis for subject matter jurisdiction that's quite different from the case here but this is squarely a federal question case enforcing a contract which isn't portable as federal common law the only question that arises and i think this flows directly from the supreme court's decision in kukkonen the only question that arises when there is a separate and independent basis  subject matter section as is true here is is there anything about the relief sought that indicates that it's not appropriate for another district court to administer that relief as a contract in portsmouth action rather than having to go back to the original issue in court and seek an enforcement of an ongoing executive or an injunction and in this case what judge what the issue in court did with flores is to go a very clear distinction between classified will be which isn't which isn't forced on injunctive basis from the issue in necessarily an action taken to remove an alien under this agreement all fifty to be knocking our position is that forced relocation to mexico under m p p is a costly determination and at this present questions of law which do not arise from a and these questions of law relate to the statutory authorization to remove them to mexico during the pendency of their removal proceedings and jennings also makes clear that challenges to detention determinations such as in jenning that your point that would be the point at the moment that they are returned to mexico there will be a harm that is incurred and there is nothing that can be addressed through the p f our process that could ameliorate that arm that is incurred at the moment of harm the government's response is well can't be withholding removal because it's not about removal but is this is that claim fundamentally about the the risk of harm in mexico versus the risk of harm in guatemala mexico but the issue as the government concedes is that the government's nonna allam on obligation is on discretionary and the act of moving someone out of the country whether characterizing returned to mexico forcibly or a removal  harm and it also does not align with the purposes of the cat statute itself which is not to return people to any place in which they face arrest of harm or not just a removal to a home country or a place so let's talk you if you resist the th circuit's approach in the film you know when we're talking about what the meaning of the nine is here and you say the circuit decision is in two thousand and sixteen is superceded by jennings and either or whether it's both but that's the terrain we have to ask and so i wonder why that doesn't at least limit the scope of your nd point which is the right to counsel point right you have a state you have  statutory claim right but that statutory right i believe is geared towards your ability to litigate your removal but that's reviewed all the time when we review a decision granting with holding den or move all or cat relief your constitutional claim i can't tell whether that it's just about the removal decision at the end or whether there's also a distinct component of it that's about the the being put back in mexico temporarily can you explain to me where unpack are there to constitutional claims here is the constitutional claim about what's happening now to mexico or is it bear on your eventual return to guatemala and i think st y it does not bear on the eventual return to guatemala by being placed in mexico there is a fact of time a nation of a right to counsel and there is no more avenue for those individuals to be represented by counsel who are here and something that if they're denied counsel now it may be a local but it routinely gets reviewed in the petition for review why is this different from your run of the mill what makes it independent of collateral two in the way that you agreed was in your reply brief was the right proceedings as the government says however john edwards correctly states that it's the nature of the claim that determines whether a claim arrives is from an action taken or proceeding brought to remove an alien and  that is what's at issue here that the legal issues do not arise from the removal process itself the issues arise from a custody determination that effectively terminates an attorney client relationship slightly different analytical path and stating that whether the question of a law or rises from an action taken or proceeding brought to remove an alley and the plurality there states this is not an action are to be put into a different category with different treatment yes if i could to cite the matter of a mass decision issued by the attorney general i think that speaks to that very well of the attorney going to recognize that both the one and b two applicants may be placed in regular removal proceedings although by different mechanisms the way of the one applicant arrives at that can be one of two ways st they are presenting at the united states border and they do not have the documents necessary to enter the united states they are outright inadmissible on that basis and they would normally be subjected to exploit removal however the one adds an extra layer of protection for the those individuals of an immigration officer can determine at that moment does not possess the requisite documents into the country that is going through a credible process and if they go through a credible process and there is a positive determination at the end of that they are entitled to some doubt you are potentially in the miscible but an immigration officer is not sure that's when there are removal proceedings instituted to determine whether or not that person is in fact admissible clear that is clearly an idiot and without doubt admissible into the united if that is found the inquiry ends in the person after the united states but the one sets up certain protections aligned with the united states non discretionary non or among obligations to ensure that those individuals who arrive at a border and an immigration officer determines have no documents and are clearly inadmissible in the united states and then have some kind of recourse of not being summarily sent country but instead of may go through some kind of asylum or patch claim in order to  judge is that there are other types of advice that are tied into what attorney client relationship that do not bear on her mobile for example we have a minor six year old child here the council could determine that that child is eligible for s i j a six year old child incurred if there is no way of helping that child outside the confines of a removal process so it's more than just the imbalance of your presented at removal proceedings it's the ability to be represented altogether at that point where the question things like you certain programs in the district of columbia does your claim fall into that category it is perhaps  think should be part and parcel of the obligations that you do not leave the united states by force absence minimally sufficient rights and procedures to protect against may have please the court arches more for the applebee's this scorching affirm the decision below because the district court correctly concluded that it lacked subject matter jer's stiction over appellants floor settlement agreement claim appellants right simply a challenge to a custody decision as opposed to removal well in terms of the jurisdiction all issues presented your honor the government's position would be just taking all the claims and turn that st with respect to the floor is agreement subject matter jurisdiction cannot be created by consent with respect to the right to counsel claim appellants claim is not that their right to counsel during the course of a just of time but the challenge to the program  it seems like she's talking their time more about custody or they know so so you're treated during this process were years where your house is sending to mexico that seems to be significantly removed from ok we're going to determine whether you below it in those states be it asylum or can't claim what this is the process by which  treated in the interim so if i understand your question correctly the government's understanding is that a custody claim is a component of flora's settlement agreement claim but not the remaining claims being assert has nothing to do with m p p but in fact was a burden on the relationship subsequently during the course of the appeal to the beyond a and with respect to the classification decision the government's understanding is that this coin had two component to nonetheless state that the statutory authorization is lacking for and p p now with respect to that latter component the government does not believe that that necessarily goes to a custody determination but that benign strips the court of jurisdiction over the into a problem because of the th claim when you drill down to it really looks like made called custody detention excursion to tijuana but whatever it is the the th of the a p a cat column is about the harm they're going to suffer in the interim just as in jennings so your logic money to mine at work for the right to counsel one dollar but it cuts against you on the is the eighty one dollars on the harm they would suffer in mexico in the interim it's now or never for review on that one so with respect claim that this return is in violation of treaty obligations so your honor i would agree that is one component of the claim i was answering judge be absolute question with regard to the a p a and specifically so in this particular case the claims that were raised replied were very narrow there was no heaviest claim and only due process claim was raised in connection with the right to counsel without seeing before universe of possible claims there may be other claims or other extreme circumstances where with you may be warred ted this court's precedent has noted for example that the rule of non inquiry is not appropriate in extreme cases but the government would submit that this is not an extreme case because the  procedures will not be reviewable the rule of law on inquiry being the rule of non inquiry your honor essentially states that if there are procedures in place and they are followed in conjunction with a discretionary determination of the court's review applied in that case and i hate to use petition where the petitioner again claimed that transfer to rocky costs should be would result in his torture i briefly want to turn back if i may to the right to counsel claimants specifically this court's decision in it's important to note i think at the outset that both parties agree that the appropriate framework for assessing that claim is whether or not the claims ancillary are collateral to removal proceedings and as a government noted in its brief extending sh and this case would not only create a circuit split but there are additionally four reasons why should not be applied here st and foremost with the unusual circumstances of that case that sixty six of three thousand one hundred and twenty one dollars and this court specifically emphasized that in the fact that the in fragmented litigation over claims that are clearly tied to the removal process took a court to take away with respect to the right to counsel claim is that appellate explicitly in method below under questioning by the district court that the harm would be to the fairness of the removal relationship will be burdened if the clients are transferred to mexico and in turn the fairness of the proceedings before the b i will be detrimentally impacted and that claim is  i argued a few minutes ago that it's really a claim of the complete and total devastation of council something that would be effectively unreviewable by becoming god p f are and what's your response to that so my response your honor an opinion backs on several points i've made is that if the underlying claim which it is in this case is that the fairness of removal proceedings will be detrimentally impacted based on the burden on the council relationship that claim can be raised in appeal far specifically they are free to argue to the court of appeals that the removal proceeding itself was rendered unfair by the burden on the counsel relationship there is no bar or on efficaciously raising that claim unlike the claims at issue recognized this very point on pages seven to eight of the joint appendix and indeed one court in the southern district of california has relied on this very reasoning to find it lacks jurisdiction over floor settlement agreement claims that are identical to the here but you'd bit the us government's being a party makes it different and the us government being a party means federal common law applies to these agreements and that's a basis for federal jurisdiction isn't it so two responses on that point your honor so st we would not be agreed that it makes a deaf ear and we would cite to a number of cases in our brief where the united states or one of its agencies were parties to a consent decree yet a number of us courts found that they lacked federal subject matter jurisdiction again for the reasons articulated in cocoa nut case found not that they had jurisdiction injured in venue a but that they lacked jurisdiction in the new so the government believes that the middle district of georgia and the th circuit said that subject matter jurisdiction was lacking in large measure because of the principles elucidated in kokang why isn't that really a venue question as your friend on the other side says and i would come back to the fact that it's not a venue question because subject matter jurisdiction cannot be created by consent even when the united states or its agencies as a party and i would also submit that this question of federal common law the floor settlement agreement was not created by federal courts shall have jurisdiction understood as a collective court system and then where it goes with the in that system is not regulated by statute so doesn't that suggest that the court system as a whole has jurisdiction over this and then why don't we treat the subsidiary question as a as a venue one so i just want to make sure i'm fully understanding your question is your question that because the central district california has subject matter stiction  that conclusion should apply to it throughout the federal district courts as a whole have subject matter jurisdiction when it when it arises from the agreement we may have special rules when it comes to contempt of court but in general why isn't it why do you resist your friend suggestion that it's the discourse as a whole of subject matter jurisdiction and then however we chop that up is really a matter of venue so the response to that is that the judge in some briscoe california did not exercise subject matter jurisdiction over the floor is case based on the floor settlement agreement the claims of the outset of that case were facial allegations that regulations were being violated and federal constitutional claims and then in paragraph thirty five dollars of the f s a that was subsequently entered principle that subject matter jurisdiction cannot be created but by consent irrespective of the principles on the terms of the up and say i would also note that the reading of paragraph twenty four b proposed by the other side is unnatural namely that jurisdiction the st to personal jurisdiction not subject matter jurisdiction they make that point in their reply brief i believe for the st time but the head of the last sentence of twenty four b says that in such an action united states district court in this case  outside the central district of california shall be limited to entering an order solely to affect individual claims of the minor bringing the action one could argue from that that it's like ok to work where you w and that court you know has it's limited as to what it can do but it certainly can do that with respect to the individual claims of the child and response your honor i would return back in pennsylvania what's were own with a federal court in pennsylvania make making a determination as to whether that challenged and can take place or if it's limited to in order to affect that particular child is floor a settlement that purports to say jurisdictions over here so why are those cases on all four with us you asserted there would be a circuit split but i don't see the circuit split so so three responses on that point st the government's  supreme court's decision in co conan and specifically the principle that independent basis of jurisdiction from the federal source of the underlying claims need so in other words but nicer to get a sovereign immunity analysis but then concluded that the principles outlined it was already in very floor settlement agreement claim and finally would also note that the only case the other side appears to rely on is ws are but important ws are did not find jurisdiction based on the reasoning better pals propose instead of us our founders stiction the government would submit that affirmative alternative ground is appropriate for two reasons st that's a pure question of water not dependent on any further factual development and nd both parties brief that issue below and on appeal so the government's and that's not the issue squarely statutorily authorized if there are no further questions from the court the government is happy to rest on its papers or just one final point that i forgot as a as a practical matter more than m p p guiding principles provide that individual place an expedited removal and found to have a credible fear will not have m p p applied to them so as a practical matter that scenario would not occur one would question we had to ask counsel about and the potential counsel just being stead story just being about removal proceedings begin its references to what was preserved in the three hundred and twenty two do you agree or disagree with your friend's characterization of the record and walk us through if you have a different view of where and why you have a different view honor i do disagree and i think it would be disingenuous for us to state that the terminations of an attorney client relationship would not have an adverse impact on the overall with the proceedings however throughout the proceedings we pl as this would be a complete destruction of attorney client relationship posing in the pentagon harm for example in the briefs after j seventy three dollars sending plaintiffs to mexico at minimum would be a substantial burden on their relationships at worst they would terminate the relationship plaintiffs are unable to obtain counsel of mexico to represent them and us from a proceedings american lawyers are unlikely to travel to mexico to represent them on a pro bono basis similarly at the preliminary injunction hearing j a to twenty eight return to mexico for this other i'm a six year old daughter would be an enormous obstacle for the continued legal services provided by our offices and advocates and would likely lead to an impossible attorney client relationship between myself this father and his child  so our singular concession that perhaps to the extent that this attorney client relationship terminations what have an overall impact on the outcome of the move because seedings we would concede that it well but we do a large independent legal harm that is not kind of a holding us supported by the district court and the government and then also an individual is not going back to the statutory authorization for m p the an individual is not cross that is not inspected and processed under b to an individual inspected for admission into the united states and based on the terminations of that admissibility determination you either are the one or you are beat that is static and these individuals it is uncontested briefly your honor based on the government's apparent concession that there's no move this issue all take only a little bit of time this goes to the question of merits this goes to the question of whether the government has destroyed its obligations under the agreement the district court found it with the answer was