it please the court i'm scott stewart on behalf of the federal government in this case the district court issued a classified preliminary injunction imposing on constitutional grounds extensive and burdensome procedures for challenging the arrest and detention of certain unaccompanied  among other things the injunction requires a very short timeline for the injunction seven days instead of a normal course immigration hearing which would become available on kind of normal course calendaring and with the normal course i'm not sure it's surely longer your honor what is the record show i believe the record shows your honor it's a guess that it would take at least seven to what your response to judge me as a question is you don't dispute that a class member put aside whether class should have been certified is entitled to some sort of due process hearing after rearrest to determine whether or not they really are now in the least restrictive environment now is that the the act says they should be kept in place restrictive environment the government has already made a determination as to these individuals that they're suitable for placement in a foster home if you will and then the government says oh no you're no longer suitable for that placement because we now think we think you're a gang member you do agree that it's some point they have the right to some sort of hearing with respect to act with actually getting them we don't contest your honor that there are they are afforded a right to some kind of a hearing to test this test to test that and so your argument with the district court is that it requires the hearing to suit its kind of a number of things your honor i mean that's a piece of it i think to start to start with i don't think the district court adequately accounts for the extensive procedures in place that do so address this if that's what this what i'm asking is your argument that that due process procedures are already in place fice yes ok so tell us what that's now i want to get back to judge there's a question tell us without the district court's order what would happen to one of these class members when rearrested upon allegations three detained because they're always under some sort of i suppose detention but put into a juvenile facility because you pretty quickly placed into h h s custody h h s is then applied to promptly placed the child in the least restrictive setting that is in the best interest of the child to to so right now we have sent a statute framework i've just got  i'm trying to make maybe my questions are clear but i think i was getting under the statutory framework at some point with respect to these question members you went out and detained them and put them into a juvenile facility because you thought they were gang members you agree you don't contest today that they have a due process right to a hearing to have a determination made whether that's a correct that's a correct thing because otherwise because otherwise they're in a more restrictive environment than they're supposed to be in and the act gives and that's that's the access they should be in the least restrictive environment i think i was getting right there your honor ok so don't tell me ok so so give you right there tell us tell me tell me who they show up in front of and when what neutral decision maker they show up in front of and when to make this argument so they they get no they get notice of their right to contest the dangerousness finding that is done before a neutral immigration judge they get an appeal to the be a way to have come here how quickly did they how quickly will they have the ability to appear see the what i'm reading this is a preliminary injunction obviously and i'm reading the district court record and the government says well it's a work in progress we don't really know how quickly that show up in front of people and the judge says that's not good enough now you can go back to the judge and say we now have the work without it worked out and they can show up in front of an immigration judge seven to fourteen days in which you judge don't judge that may be perfectly sufficient but that that's not in the record in this case is there were there was testimony that there could be at least you know argument i guess i should say i mean again this was highly truncated so the record is a little compact on some of these issues your honor i don't think it very well crystallizes how long things would take i think our submission is you know there's a normal course kind of you see we deal with normal course immigration hearings or time and they seem to take a long time so i guess what i'm trying to figure out where in this record there's something that would give me confidence that somebody was detained will show up and from an immigration judge in a week or two then it seems to me requiring seven days or ten days in a preliminary injunction might be an abuse of discretion and try to figure out a way that is in this record i'm not sure that i can push back on something in the in the record that they will that will give you assurance your honor that they will end up in seven to fourteen days in front of an immigration judge what i would emphasize though is that they do get a chance under the under the existing procedures to challenge dangerousness finding and i'd emphasize that the context here is a little bit it's a bit unusual because we are dealing with unaccompanied minors so as you're on a recognized earlier and you were dealing with a statutory directive to keep so these were adults maybe you could just attainable all the time and no one would care but but we're dealing with a statutory directive here well i think there's certainly stronger care concerns and sort of stewardship and custody issues you're on i think what i what i'd say to sort of close the loop on the procedural point though even though i can't give sort of a hard a hard date on on how quickly things will happen is that under floor isn't under the t v p r a minors can challenge this determination if they if they make a showing that there that they're not presently dangerous then they will be eligible for release if you're a resident same francisco you get in the rain within forty eight hours and one of the issues you go into is being forty eight hours now why should these  reasons the first and i think i think this is something that i think got lost a little bit in the district court's opinion here is that although the miners at issue in this case previously previously had a suitability determination a release germination made often those happen years before so somebody has been out for a while they haven't come back into h h s custody and very often i'm and there is discussion of this in our you know excerpts of record that what will happen is that after a suitability determination release germination are made somebody will make a minor will make his or her way back into h h s custody in that time circumstances have changed some years or past the minors will have a different personal features they'll have you know not that no one doubts the government's ability upon obtaining information that the minor is dangerous to detain a minor to take the minor out of the foster home and put the minor in to do it all facility and nobody doubts the government's ability to keep the juvenile there if in fact the juveniles dangerous that's not the question the question is how quickly and before who made the juvenile contest that governmental determination and sure you get new information but you and maybe you made the decision years before but the question is how do they get to contest it before an immigration judge and with an appeal to the b i a your honor and yen timing issue is a challenge there but they do get to contest that and  turn to the floor is hearing for a moment that's a different kind of argument isn't it in florida as the question is upon initial detention i think with the order says as you do what else have a right to a problem hearing to determine where they should be kept is the flores consent decree really apply to the juvenile who's read it and you're on i think in this case i don't believe the issue has been joined there are a couple  a floor is hearing is available what's the record tell us about how quickly i do beyond that the mention of potentially being able to be done and you know week or two your honor i don't think i don't think it gives you m a truncated period of time from the government's point of view what's wrong with the preliminary injunction sure your honor among other things it reciprocated said a month you have a month  right your honor would that be ok i think it would still be difficult your honor just i think i can't really commit without having affirm your knowledge of how quickly some of these things are able to move there just are a lot challenges in the system see and my difficulty and i think your response to judge hawkins is question focuses on it you're in front of the district judge and i understand the government's now confronted with a new set of facts and we say we're just not really sure how to handle this but we all agree that some due process right is it should be valid and the judge says to you until you can tell me how it's set up i'm going to set up a system you can always come back to me later and tell me you got a better one why why was that an abuse of discretion i mean you're on of that the judge you know imposed pretty rigorous minimal procedures and i think the heart of those you know the heart of the critical points so far as the constitution is concerned are things that the current process satisfied if i could emphasize maybe just two or three kind of central issues with those procedures are that they do they don't fit in way in the liberty interest in weighing the importance of going through kind of the suitability process in going through the government's interest in the end that the due interests of the children i don't think think the district adequately accounted for the very significant interests that h h s has in assuring the safety of the child and making sure that when they receive release a child from his custody that it is indeed still to a suitable sponsor didn't consider some faculty would that in this case as you've taken there are suitable sponsor i'm not sure why that why the act requires that you go through the entire mechanism again to find a suitable sponsor if the previous one is willing to take them back it may not it may not just be the sponsor itself your honor but the circumstances could change sort of when the sponsor kind of where the sponsor lives who the sponsors living with their this is the sponsor living or is the sponsor started you know having a relationship with a dangerous person let me push judge talk and just question a little bit different way we all agree they're entitled to be here you think it's too quick and too burdensome what's the alternative that you think the law requires i would say it let the existing system work under floors and under the t v p r a miners in the circumstances here will be able to contest a finding of dangerousness that could have led to their retention so there's no argument the government does not argue there is an ability there should be an ability to contest the determination in the facts of the this case that there's gang affiliation sort of thing right that they should be able to challenge we recognize they can challenge dangerous  of children that that would have been a big boost to you know afford i would still push back it wouldn't fully address the government's concerns here your honor because as your honour's now i want to make sure to save a little bit of time to for a bottle the constitutional nature of the ruling puts the government in a bind as to and some of the burns have been able to hit an argument yet but they're hit on in our brief about just the difficulties of ice custody h h s custody the burdens those provide stuart you do not it's something that is supplanted fur kind of the general context of adults well why did there's a statutory directive to keep the child in the minor to me happy child the unaccompanied minor in the least restrictive environment you agree yes you're on and you're the government itself has made a determination that that particular unaccompanied minor is that the act is served by putting in the count and the company might or not in detention but is in a foster home and now you're saying circumstances have changed we've now discovered that the child is dangerous or the minor is dangerous why shouldn't you have the burden of establishing i think the framework is a little different if i may answer your honor under that under the context of the t v p r a your honor which is specific and geared towards the protection of minors and it kind of urges on the side of minor safety and welfare and i think once you end up in that system in the flores t v p r a regime it's right to stick to that regime where yes you know a minor can contest dangerousness but ultimately there's a dominie a lesser liberty interest there's a high cost us not to know that i think i'm not i'm not arguing about the nature of the procedure in front of a judge and just say or i'm at an immigration judge so you know where you can you do you envision the hearing in front of the immigration judges you come in and say we've determined this child is dangerous good morning your honor is julie a mass for the plaintiffs and i wanted to address the court's questions regarding that timeline to begin the seven to fourteen days  timeline is in the record at the record excerpts one zero nine this was actually a statement made by counsel for the government that that is the amount of time that is typically used for a hearing to show changed circumstances in an adult detention context and that's the time frame that the district court here based the injunction on because it was what the government represented was a the normal course of events for the government on that precise point at the hearing before the district court the government say that's too constricted a period of time we can't meet that no your honor go ahead but with respect to the amount of time the judge  i believe or i can't remember sorry who's question it was originally the amount of time it takes to get in front of of flora's hearing the record in this case showed that the three named plaintiffs were in custody for over five months and the one of the name plaintiffs f t who requested a hearing waited three months for his hearing there and this is in the record when they when they finding of no change circumstances with respect to safety or flight risk was relevant to both the floras hearing and the serratia hearing outcome at that hearing it's the it's the miners burden to show that he or she is not a flight risk or danger but in the serratia hearings the district courts injunction makes clear that it's the government's sort of burden of production to bring forward evidence upon which they're claiming a change circumstance with respect to safety a safety risk or flight risk there's no substantial difference between  yes i mean there are different things basis for for the with a different result that story but the main different so the main difference is the outcome the outcome of a striving hearing is that the child is released to his or her previously identified and question let's assume that the government was functioning in an appropriate manner and there was a change circumstances hearing within seven days after the death retention of one of your clients ok in front of an immigration  judge would be the burden of your call and at the changed circumstances hearing to show that his circumstances hadn't changed or would it be the burden of the government to show that his circumstances change put aside this ravi order so and there's no s ai order that this is functioning within the immigration system it's the it's the it remains the burden of the respondent which is the which is the immigrant your son yes my client to show that there's there's not a safety or flight risk but under matter of souquet which is the be i a president that the or the counsel for the government referenced in explaining how it works in the adult context under that president and or our counsel stated that this several times in the in the record below it's the government's job to show how circumstances have changed and if circumstances haven't changed or ceases that's what i'm asking so is it is it the job of the government to come in and show change circumstances yes or is it the job of the immigrant the only to show that my circumstances haven't changed it is the government it's the government's needs to come in and show the changed circumstances that justify a change from the previous bond i mean we governments already made a determination that's correct now and under the horace settlement which i'm not sure how it applies in this case when you show up at a floor is hearing whose burden is it to show absence of dangerousness i think it's unclear in the in the ninth circuit decision what the the burden discussion isn't isn't entirely clear it's not there under the district you know the district court was pretty the district court in our case since the case did not say the injunction does not require the child that does not require the government to carry the burden of proof in terms of dangerousness or flight changes a risk that requires some notice of why they consider the person dangerous that's correct it's no higher than your duties can simply come to the hearing and say we believe you're right i missed their team member the bird may then be on the defendant defendant the the child the child the minor some are not children to show that i'm not sure about the evidence that's right your are so the way it's spelled out in the in the original order and in the subsequent orders there were a number of subsequent orders that kind of clarify the procedure further the district court makes clear that it's the government's burden to bring the initial evidence and to present the nischelle evidence of what what circumstances have changed to justify holding the child in custody and then and then i met gratian judge can either find that that evidence is sufficient to show a change circumstance with respect to safety or flight risk or  anything in the absence of this decree but if they were following the law in the absence of this decrees that the way things would have worked you know your honor it's really i think it's contested the way things work it's simply unclear what is the correct it's no what the government really says is that is the court abused its discretion in issuing a preliminary injunction because your clients didn't have a probability of success on the merits shouldn't we leave if there's to be done with the process is that really an issue for us on appeal no words i think the government really said no injunction should have been issued at all because you didn't have a probability of success on the merits i'm not sure that we're maybe  review it are we here to to deal with the details of the injunction or whether or not it should have been issued in the first place i think you are here today to deal with the question of whether it should have been issued here in the first place and it clearly should have with respect to the  of this is the reason we're asking these questions is a lot of this is not the subject of a briefing there was nobody says well the judge was perfectly ok to the injunction but it should have said thirteen days it should have said here's how the procedure works i read the government's argument to be a good judge or to integrating an injunction that's how i read the government's argument as well and the government hasn't raised any concern about the burden of proof at the hearing the government's raised concern about the logistics and about about the release being the remedy and the hearing how does the class look well the class as of now i think we only have about we've had about thirty four thirty five people identified as to the government's contention about gang membership or whatever there had been a determination made that it was ok to put them in foster homes to use generality yes that's one of the defining aspects of the class is their children who came to the united states seeking protection as unaccompanied minors were in federal custody and then through the process that's at the border and and then they're claiming asylum and they're unaccompanied and florist supplies or whatever at some point a determination through h h s a determination is made th non custodial is ok well it's the government's obligation to place under the t v p r i and under the floor is agreement to place children in the lease or service it is not a hearing at the front there's not a government looks at this at the at the minors and says we think you're suitable for place there's a process there's a process there's not a hearing at the beginning of the process if the government had said to a minor we don't think you're suitable for placement in  a non restrictive environment foerster home because we think you are a danger or a flight risk how would the minor attack that not the rearrest right the very very beginning process well the the minor at that point would have access to a  florist's hearing where he or she could contest the dangerousness finding which would result at most in if the immigration judge agreed that the child didn't pose a danger then that would result in the child being stepped down to more bond revocation the government says it's our burden to come in and show change circumstances i'm reading from the transcript that's what the chance kept in the case that was the government would have seven but it's you're saying it's just not clear in the from the statutes or any court order on whom the burden falls in this circumstance in the absence of the judge's parliamentary juncture in the circumstance if we're talking about the floor circumstance i think there's a lack of judge about their circumstances and they were showing up at that hearing how would the hearing with the government say we think they're dangerous they have to prove they're not with the government say we think they're dangerous and here's a showing or w clients would be entitled at some point perhaps very late in the process to show up in from an immigration judge and say my circumstances you know i've been put into now the judge should robbery or says probably correctly that was that's no one you should get that at least as quickly as an adult does and so many give it to us at least as quickly as an adult us and then he says and this is the way the hearing is going to work and all we're trying to figure out is if they've gotten if they were if they'd gotten  through the normal process as quickly as judge as the district judge ordered it how would the hearing have worked i think that hearing the government certainly takes a position that the burden is on the child to prove safety or flight risk and the read one of the reasons once the middle decision there is a requirement for change circumstance i didn't see that in judge job the reason it has to be different your honor is that having made part of the libyan arrest how well he's being treated now he's losing the the reason that it makes the reason that it's required a it's drawn from both a matter of sugi a case out of the b a a which deals with adults which deals with adults and revocation of bail jurisprudence in the criminal context also if a if a person's released on bail they can't be picked up just for the same reason based on the same arrest warrant  honor the government came forward presented memos in some of them i think there was testimony presented in the ones that i attend and there wasn't testimony presented but there was a lot of argument and the child may or may not testify depending on how the immigration judge decides to rule on that question but based on the sort of documentary evidence that was  presented really kind of counsel argued over whether i guess what i'm asking is maybe the burden of proof is something that lawyers worry about in this context which may not be terribly important  en the government obviously comes in and has to give notice of why we did this because we have a police report we did this because somebody told us you know we have and then the child says something a judge hears stuff and decides what it is on i'm trying to figure out with the bird the cases never get dismissed because nobody's made it's be their burden of proof or both sides just show up and put in their evidence i think the most important point about the way these hearings played out is that as of december twenty second which is when the government provided the results of the hearings to the district court out of the twenty nine hearings that had been conducted and there i don't know that the immigration court had a lot of clarity about this burden of proof question either but out of the twenty nine hearings that  kentucky conducted twenty six children who had been in custody at that point for months were released were released because the government had not brought evidence of changed circumstances related to safety or flight risk that was sufficient for the at the at the hearing is it sufficient for the purposes of the class that you represent that there may be notice and an opportunity to be he well notice in an opportunity to be heard can be played out in many ways i think notice of the actual allegations and the facts give an opportunity to be heard in front of a neutral yeah this is a make or like an immigration judge with the opportunity to cross examine witnesses and to burlai unreliable evidence yes i take it in some of these cases the government came in and said we think there were a gang member and the immigration judge listen to the evidence and said that's not enough that's correct your honor didn't require a one word from the respondent that's correct you and i because often they relied on memos that were drafted maybe unsigned memos that were drafted by  thank you your honor i emphasize your honor on the burden point in the absence of the preliminary injunction here i believe the burden would be on the alien where do you get that from i mean what i read in the record is with respect to seven why why is it different with children my understanding your honor is  when you're saying we should just we should stick with the normal change circumstances process and and the judge i think essentially did he said you say hearing occurs within seven to fourteen days a letter that you say the government has the burden of say sh circumstances i'll order that so i'm ordering that you use the change circumstances process for minors the same way you do for adults whose bond is revoked so tell me where in the statute the minors the minors situation is different your honor i believe the way the burden doesn't change for the rearresting of adults context ultimately basically somebody has to prove that they're not a danger and if if if the reality is that there's been no change circumstances they might actually is if they they then are released because there's no basis to hold them so i don't think the burden changes even though it kind of comes there and in that that court says what you what your quarrel then dangerousness previously your honor but as i mentioned earlier sometimes you know you just passed circumstances change and so the question is who has the obligation of showing those changed circumstances and you're saying the minor has the obligation of showing that circumstances hav changed showing lack of present dangerousness is how does the hearing work then you come in and you don't have to put on any evidence at all the minor just has to show up at the hearing and show a lack of present dangerous we think you're dangerous or we have some evidence of your dangerous he has a continuing obligation to show up at hearings when we are arrested and show the absence of dangerousness well i think these hearings will sometimes be adjourned for the consideration of additional evidence and you know the immigration judge can make sure that you know they're satisfied that things are in order i see that i'm i'm well over and i think i have one question this is my note here may be incorrect but i heard the government can see that second he injunction you say existing processes are fine at that existing process if you simply have done it precisely what you did here and did the exact same process somebody shows up and find a mini vacation judge at some point  who has to show change circumstances that the government or the minor government decides or receives evidence that leads them to believe that the person has engaged in either criminal behavior gang affiliation or whatever how do you bring that to the attention of the immigration court do you serve a notice on the person i can't i can't pinpoint at this moment just summoned to mind the exact mechanism but we do i believe we've described that there is some notice given and then a presentation and there was a hearing before an immigration judge and the immigration judge comes out on the bench and she says why are we here and you say ask a minor you know i think we do you know if you say something you know you're here because you can give notice of the concerns and you know now you know like present the say the judge should have granted injunction but it should have read differently it should have said thirty days not seven or whatever is that and i might correct reading your brief is what you're saying is the judge abused his discretion in