case of morgan hill persis california education is submitted on the briefs and will proceed to argument on a day of versus ice proceedings i think we're well aware of what the district court did can we begin by your telling us if the government's position is that individuals in this class can be detained indefinitely with no promise of a bond here yes or no i don't think that's the issue in this case i don't care what you think i would like the yes or no answer to that well i think i think that the supreme court has indicated that puts i want to know what the government's position is on this issue or the people in the point of schoolhouse subject to indefinite detention with yes or no to make sure i understand the course question by indefinite do you mean with no final and point because as long as the government wants our position is that there is a final definite terminations point and that they are subject to detention states government is these individuals can be subject to indefinite detention with no promise of a bond here correct but we would not agree that it would be indefinite when there is a definite terminations point and that is one of the detained for as long as it takes to get to the conclusion of removal proceedings which could take five years sometimes ten well i think that that gets to the test that we've outlined in our brief and the test that is outlined in the brief is that of detention pending removal proceedings becomes problematic when it's no longer in service of those removal proceedings and there may be an argument at that five or ten year mark that it is no longer in service of those memorable proceedings but i don't think there is an argument on that at eight days of detention which is what we have here with the bond order or with the bond hearings to be happening within seven days i also want to say as a preliminary matter what the government think would be a reasonable period of time i think that certainly seven days is a reasonable period of time which is what we have here in this supreme court case law and if we look at the th circuit's case law i think that there is a clear line this is the detention may become prolonged at six months and that's what we have the court saying that's what we have the court saying at least and do more where the alien and more had been detained for six months and it was expected to continue i think that's what we have this court saying in the road ragers line of case law and i think that seven days is a lot different than the six months that we have those cases that we substitute a six months for seven days would you agree that the even if it was a very long list of individuals that that would be permitted by section one thousand two hundred and fifty two f one but that isn't what we have here we have the district court saying is as a facial matter as to the class nationwide with many people who are obviously identified and as to the individual class members of the the two bond hearing representatives they were only in the country for a matter of hours before being apprehended and so one of the things in this is bleeding into our due process discussion a little bit  but that's one of the things that the court would have to take into account you would agree that american arab was not a class action correct all right and so jennings and jennings the court remanded that case to the th circuit to determine whether a class court we have the court saying to the district court you need to consider section one thousand two hundred and fifty two f one and it's also important to note that marine was in a different posture we're talking about a case that had a permanent injunction as well as the corresponding declaratory really as opposed to here we only have and then they can versus holder and then of course the th circuit has also reached that conclusion as well as the th so even if we considered the statements in three supreme court decisions as dicta what sort of deference is this court required to give to those statements even if they are dicta which we've explained in our brief we don't think even if reno could be considered dicta we don't think jennings could be considered dicked i think it would still be highly persuasive for this court and obviously we've pointed to her mama and our brief as as a case that we think is also very persuasive on the interpretation of section one thousand two hundred and fifty two of one well some of our case law states that this court has a lower court is supposed to look at these considered supreme court distance statements as sort of prophecy of what they will do is there anything in the which is the supreme court has considered this on multiple occasions and it's never said anything or hinted anything to the contrary and even in jennings which came out a year ago the supreme court is approvingly citing reno and so i think that that's very instructive that there's never been anything to the contrary so i think to talk about a couple of other how it was it was more of a standing case don't you agree i mean basically what the holding was in reno and the issue was reno was whether organizations could file class actions and course and then in jennings you have a class action that's that's sent down to the lower courts have never had a case where we have a class of people who actually have standing the supreme court is considered true i don't think that's right because in jennings we have a class that's very similar to the class here we have a section one thousand two hundred and twenty five b class in the supreme court is considering not in jennings so again we think jennings is very instruct held that the rule presented in california only be true as a general rule but it does bar them in the particular excuse me it does bar class actions in the particular statute issue and that is what exactly what the supreme court found in reno and that's can look at there and the way you've argued against it is that the government's position the people in this courthouse and be detained indefinitely however that's a phone with no promise you i think that no court has ever found that section toll twenty five b one b two cut detention is unconstitutional after only seven days what you've told us or inferred that maybe if she had said six months that would be you again i don't want to concede that but i think that that's like the earliest that we've ever seen in the case law that constitutional concerns have been implicated so that's that's the distinction that i want to draw is that certainly we don't have that here and i think what we have is an attempt to take the prolonged detention framework and sort of squish it into the seven day timeframe when when we know that the congress has provided for mandatory detention of these people that is what the supreme court resolved in jennings and so now we only have th constitutional question and the guidance that we have from the supreme court and from this court is that that constitutional question doesn't even become implicated until the six month timeframe so again we there's no case law  month in this particular context they have said that only after like considering it individual hey b s and so that's not been after one month of detention period they've usually i think i think if i understand your question they're because we haven't had any discovery this is a preliminary injunction so i'm honestly unaware but there are so far everyone in the plane of class has received a bond hearing because they either received it under matter of x k or once a matter of x k was no longer valid they received under the preliminary injunction as partially stayed by this court so so far every every member has received a bond hearing so one of the things that we think is from taking the position still  good is that the government's position that the plans on this class have no due process rights at all our position is that they have the due process rights that are given to them by congress and we've cited tons of case law in our brief going back many decades to support that proposition guard less i think though is that we have this this injunction that as a facial matter says that this class of people gets bond hearing at seven days and so we know that the class is comprised of varying individuals some who have been here for longer than others some who have more substantive ties than others and so when we're looking at this injunction i think we have to take what the court in meridian did and in marin in reminding it the court said and i'd like to quote and instructed the district whoa to quote determine the minimum requirements of d process for each subclass in in the remained of jennings and i think that's instructive because here with this injunction the court didn't do that the court didn't find that as the spectrum of individuals that this this bond hearing requirement this injunction would be already certified ok i know but but your argument is there should be some classes no that's not my argument that was a quote from written which had various different subclasses including different detention statutes i think the point there is that there is a sliding scale of due process in the supreme court has said on multiple occasions the due process is a flexible concept that takes into account all of the different varying circumstances and here we don't have the district court doing that and saying there was more to the different circumstances that would affect  process rights of this class because they found them had a credible fear determination and they've been detained what i mean so i think if we look in the in the case law you know and we've cited cases  the state of our constitutional purposes aliens who have only made a very brief entry into united states are assimilated to the status of arriving aliens so even if we were to take plaintiff's argument at face value that they get additional due process rights by virtue of their illegal entry into united states i don't think that means automatically that they're entitled to the injunction that the district court awarded maybe there is some class member that is entitled to that i'm not conceding that i'm saying that for the purpose of argument but for the class member who's only been in the united states for one minute before they were apprehended i don't think there's any case law to support the idea that they would be entitled to this injunction and i'm getting very close on my time and i would like to see the remainder for vital thank you thank you police court good morning my name is matt adams i'm here on behalf of plaintiffs and class members and we start with whether the government's statement to us that everyone in the point of class has received a  that that is correct that pursuant to the district court's injunction the class members continue to receive bond hearings all on the procedural basis the judge peckham ordered not with the additional fifteen years under this is that's the longest period in time the in the of your clients in the class have actually been detained well because our we don't have information on our current class because discover review and thus have been detained for literally years so while the government does not concede that it's indefinite it is clear that this process often takes years and in fact in the record supplemental excerpts of the record talk about the median time frames and that's on page one hundred and twenty four dollars of the supplemental excerpt for the record is so just looking at those in the administrative proceedings the median time frame for our class members to have their case determined by the immigration judge is one hundred and seventy three days so almost six months and for those who then are forced to appeal either they win and the government appeals or they lose and they appeal the median time frame is just over eleven months and that does not take into account any judicial review so on of of the members of the point of players who received bond hearings how many were granted what percentage w granted under release just under fifty percent of the class members were granted a bond or the immigration judges have determined that they did not present a risk of flight or jane during that would require them to be held without roughly consistent with the percentage or bond graham before this litigation to lawyers to be clear that's the numbers that predate this clip again because all we have are the numbers that the government's provided through the the injunction in the case of ms al so even though they attained a bond hearing they were denied a bond but since they were still being separated from their children they get the government was ordered to reunite them with their children and they were released at that point and the other class member had been released through a bond hearing are you still requesting that the court stay this matter pending the supreme court's decision the recently certify case i can't pronounce the name yes my best attempt through the rise again and in that case the government makes the same argument front and center that they make in this case which is that individuals who entered the country are not protected under the due process clause that they only are entitled to the process which congress bestowed upon them and we think that is clearly wrong it contradicts decades of case law contradicts the cases that the government is cited yet because the supreme court has certified that case and because that question is front and center it there we don't we don't profess to have a chris crystal ball to say where that we're it's going and that could in fact dramatically alter the course of these proceedings you would agree that that  case involves a different class of individuals than it is involved in this case correct that is correct and it's very important because in that case you don't have individuals who are found to have a credible fear so what what does  effect of your request for us to have on your argument that your clients are suffering irreparable harm it is i would say considerably weakens so to be clear our requests for the stay does not does not indicate from us requests that you stay the relief that this court and the district court has already provided that is to say the continue that we're requesting that the status quo violence continued while the supreme court reviews through a thorough thrice again what would what we would do per your motion is stay this narrow or administrative we close it and the status quo where bond hearings are continuing and would remain in effect that the additional protections that the district court ordered would not be applied to those hearings is how the fact that is correct that is our request  reduced go ahead and decide the case and of the rest of the supreme court instructs us differently on issues of the touch upon the issues in this case you have competent counsel on both sides you can each file your petitions for rehearing and cite the supreme court case why can't we proceed in that manner this court certainly can proceed in and and and how is that without a better choice the more your position is for us in our motion we only stated the the fact that it may later on impact this case and if this court is ok with that then we are certainly who welcomed moving forward on this so there's a preliminary issue that  s before this court that would not seem to be affected by this new case and that is whether the district court had jurisdiction in the st place to enter the nationwide class injunctive relief whether that was prohibited by one thousand two hundred and fifty two f one and so i haven't heard you say that the application of twelve to f one could be impacted by this case in which the supreme court has recently granted cert that's section congress specified explicitly that reference forms of pay vs relief would not be available for our class under rule twenty three dollars and this corresponds to the rule that where in fact congress intends to strip this court of its traditional authority of its traditional equitable powers it must do so expressly and that's one of the things that this court pointed to in rodriguez in the very st word read is decision and that the supreme court reinforced in the oakland cannabis on to express we provide an exception cause that says that prohibition on injunctive relief does not attach to those who are already in removal proceedings and doesn't actually say that does and i mean if you read the statute it says to an individual who has been place to move the proceedings and so you know we start with the language of the statute of course and i don't think anybody disputes that but as i read your argument your interpretation would have a strike that language it would make an individual superfluous and we would read the statute as if it said any individual or in an individual or a class of individuals and it doesn't say any of those things so how do we reconcile the clear language of the statute with your argument that when it says an individual alien in removal limitation on individual relief now i take it judge b to your point is the point made by the six circuit and how mamma did by saying individual alien the court interpreted that is as requiring a redundancy but i think that statute is pointing to this bar on preemptive challenges made by individuals or organizations as we pointed out so going back to california in that case the court was considering a statute within the social security act and it was a statute that granted a right of action and the court held that it wasn't limited even if it talked about an individual and he didn't say an individual taxpayer it's something a little different  that there could be broader relief but isn't that different from a statute that explicitly except a claim and says that there's a limitation on injunctive relief no court shall have jurisdiction other than the united states supreme court claim challenging the application of these sections of the immigration nationality act except for the claim of an individual alien in removal proceedings so i know i disagree i think that it's not providing the explicit language the explicit language when prohibit class really so it's different from the section you're citing from section eight which does it's a it's a limitation on injunctive relief which is what the united states supreme court said in reno versus a d c so why would other forms of relief or challenges in that same section and and i would note that in let me ask a practical question let's assume that there's no injunctive relief but you get declaratory relief what's the practical difference at the end of the day when we've gone back and gone through discovery and come to our ultimate judgment there might not be a practical difference but in the interim we have thousands of our class members will not only have been deprived of their liberty for months and perhaps years depending on the course of the litigation but many will then of been deprived of the opportunity to obtain legal representation to gather the evidence that necessary to marshal their case to present their case before the court in some to have a genuine opportunity to apply for asylum so in the interim it's critical and i would go back to the point that the government conceded when they were arguing for an responded to judge hawkins questions saying that if the district court went back and named every individual in the class then they would the district court would be able to provide in fact injunctive relief to those named individuals and so we can all go back and is saying is well as i understand it nobody even knows how large this class is so nationwide class no one's even attempted to count the numbers it's at least tens of thousands of people if not hundreds of thousands and if you could bring an action on behalf of each one of them by name you'd have an extremely large joint action but under rule twenty the court would have the authority and would in fact be required to treat each claim individually dismissing each person separately awarding relief separately perhaps separate trial separate orders so those would be the prosecution of injury ritual claims correct i don't believe that that was the government's concession big knowledge that any if the government if the government produced the classless the government does have possession of the class numbers they know these individuals if they produce us with a list and we went back before the district court in the district court issued an order on behalf of our class because no one no one denies the district court has jurisdiction over the class then ordering individual relief for each person in the order relief would be available and i go back to what you're reading an awful lot into the council's response to the question where they really didn't go into an analysis of rule twenty which would only allow joined claims come from the same transaction or occurrence and it's practical to do so and so we're taking a hypothetical and spinning it to the ridiculous that it would be practical for the court to do that so that people who've entered in very far different locations under different circumstances were apprehended in different ways make different types of claims for asylum would all be considered to have claims arising from the same transaction or occurrence and i think the supreme court's language in jennings versus rodriguez is instructive as to this point when they're looking at the the apparently broad language and benign and the court said when confronted with capricious phrases like arising from we have a student critical literalism leading to results that no sensible person could have intended so if we because the supreme court in three different instances has not said that he said the opposite and two other circuits have said the opposite so i understand what we're doing would be venturing into new territory and making a ruling that nor the court has made a secular act the supreme court has not which is did moran say that you can have class wide injunctive relief because i think if i understand from reading your briefs all the cases you cited would be the st court to do that in did order that that injunction on behalf of the class remain in place while it was remanded for the district did order the dane junction remain in place and it did state that in addition under the statute that the district court retained authority to provide injunctive relief and that's an additional basis for the district sure sure no i don't think anybody disputes that the government stood up and said the statute doesn't remove stiction it's just that it's it would have to be on an individual basis if it's differently but there is the only support the government has for that proposition is that that this  who had gone hearings and have had a result those are all constructed under the prior to part a of this injunction the old rule so if you will that's correct the results were unaffected by the presence of those rooms that is correct ok thank you may i ask about the seven day requirement of school what's the basis of that in the record or if an individual continues to be entitled to a bond hearing meaning that they have a right to demonstrate that their continued to defend is not justified then they have a right to a prompt bond hearing is this court has a repeated matthews v ravi a case and in other detention context we looked at civil commitment context where the courts that know that the person must be entitled to a hearing under the due process cause no later than the th day after they've been apprehended in the criminal context it's even more expedited of course that's under the th amendment but a forty eight hours and also corresponds to guidance by the agency and the agency itself has emphasized the expedited nature and regulations like  for a brief continuance if indeed there is an issue determining the identity or there's a security risk i would also note that in looking at this the seven day period it's less stringent than what this court ordered serratia because the seven days only kicks in once the individual has already has requested a bond hearing and they're not entitled to request a bond hearing until after they've gone through the expedited removal process until after they've gone through the credible fear interview and even then many of our clients don't request a bond hearing until after they've had time to look for an attorney's so the government has much more time in this scenario than they do in this case the then in the a statement a credible fear that or finds that they have not rather has denied it then that decision has to be reviewed within seven days and that's what i understood the district to be relying upon nothing else that would suggest that seven days is somehow magically tied to the constitution and it's a constitutional requirement i don't agree i think that that was one supporting statute she looked at the time frame within the sex but i remove a process but the district court was also looking at serapion reference robbia and another regulation just to connect that eight c f r one thousand three hundred and fourteen a makes clear than an individual can then can ask to go before an immigration judge even before d h s s filed the charging documents with the court demonstrating again the expedited nature or what should be the expedited nature of these hearings but in contrast we presented declarations from representatives across the country who talked about individuals waiting weeks and sometimes up to two months in order to get the bond hearing that they had requested and if these people are in fact entitled to a bond hearing for those for whom it will be determined that their detention is no longer justified then any delay necessarily in arbitrarily deprives them of their liberty and the board's own precedent acknowledges that and we cited two matter my bias paris where that the quickly with the government bearing the burden of proof it incentivizes aliens to enter the united states illegally because they are would then be entitled to greater process than if they properly reported to a port of entry which is not what congress intended by making illegal entry illegal what do you mean by the term well if someone were to seek entry they would be required to go to a port of entry and not enter illegally well they fly here from venice where lower columbia of the overall policy that the point of class here is complaining resulted in the continued detention of families that are separated children from mean if you know i'm not sure that i fully understand the court's question but miss l which is the litigation in the southern district california is governing all of that and so i don't believe at this time that there is any interplay between this case and that case