Jennings v. Rodriguez

Oral argument transcript · No. 15-1204 · October Term 2017 · argued November 30, 2016 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Malcolm L. Stewart, Deputy Solicitor General, for the petitioner
• Ahilan T. Arulanantham, Los Angeles, California, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 15-1204, Jennings versus Rodriguez. Mr. Stewart. ORAL ARGUMENT OF MALCOLM L. STEWART ON BEHALF OF THE PETITIONERS

Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court: This Court has often stressed the breadth of Congress's constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States. This case squarely implicates that principle. During the pendency of Respondents' removal proceedings, the question whether members of a certified class will be detained and the question whether they will be allowed into the United States are simply two sides of the same coin. In practical effect, Respondents assert a constitutional right to be released into this country for the remainder of their Official 1 removal proceedings if those proceedings last for more than six months and the government cannot prove flight risk or dangerousness by clear and convincing evidence. This Court's decisions make clear that Respondents have no such right. If I may, I'd like to begin with the arriving alien subclass. The statutory provision that's most directly at issue for these purposes is at page 152a of the petition appendix. And this one deals particularly with what -- what I think is the most important subset of the arriving alien subclass; that is, individuals who come to the country for the first time, they pass a credible fear screening for asylum purposes, and they're then placed in removal proceedings. And near the top of page 152a, in Romanette II, referral of certain aliens, it says if the asylum officer determines at the time of the interview that the alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum. And so, in the very provision in which Official 1 Congress was dealing with aliens who passed the credible fear screening, it was making clear that the finding of a credible fear confers no entitlement to be released into the United States. It's an important step in the process because it means that the alien won't be placed in expedited removal and have -- will have a thorough chance to -- to prove his compliance with the prerequisites for asylum, but it doesn't confer any right to be released into the United States. To the con -­

Justice Ginsburg: There is -- there is a possibility of parole, is it?

Malcolm L. Stewart: There is a possibility of parole. That's entrusted to the discretion of DHS. That's made under some of the same criteria that the Respondents would have the immigration judge make in bond hearings. That is, it's the policy of DHS that if an alien passes a credible fear screening, and DHS is adequate -- is able adequately to verify his identity, is satisfied that the alien is not a flight risk and will not be dangerous if released into the community. Unless there's some countervailing consideration, the policy Official 1 of DHS is to parole those individuals into the country. I think -­

Justice Kennedy: Can you give me any idea of numbers? Do 10 percent meet that requirement, 20 percent, or do we know?

Malcolm L. Stewart: We really don't know. DHS doesn't keep statistics as to -- to the numbers. I don't think it's a -- it's not either a formality in the sense of aliens being always or almost always paroled; neither is it a nullity. But between those two extremes, I don't think we really have reliable statistical evidence. I think there was -­

Justice Sotomayor: I -- I thought that we had some. And from what I understand, in 2012, ICE granted parole to 80 percent of arriving aliens. In 2015, the number dropped to 47 percent. And it may be lower now. So my question is it's obviously the executive alone making this determination; what other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?

Malcolm L. Stewart: Well, I -- first of all, Official 1 I would not accept the premise that this is indefinite detention. It's true that there is no outer limit in terms of a number of days, but it is detention that is specifically pending a determination of eligibility for -­ for asylum.

Justice Sotomayor: Well, but that -­ that assumes that that determination is going to be done in some expeditious way, but we know as a matter of fact that these determinations can sometimes take years.

Malcolm L. Stewart: They can sometimes take a long time. The -- the cases in which aliens are detained are expedited by the immigration judges and by the BIA. So they do move more quickly than cases involving non-detained aliens. I guess the first thing I would say in response to your question, is there any other area of law, the Court has said time after time that insofar as people arriving -- aliens arriving at our shores are concerned, whatever process Congress chooses to give is due process. Aliens, once they've built up ties to the country -­ Official

Justice Sotomayor: Well, but the -­ the problem with that is that that's lawlessness. That's basically saying that we're not a country of law, that we're a country of arbitrariness in detaining people, locking them up. Perhaps let's -- let's -- answer this question: In which ways is immigration detention different than criminal detention? I mean, I -- I understand right now that when you detain aliens, you put them in orange suits, they are shackled during visitation and court visits, they are subject to surveillance and strip searches, they are referred to by number, not by name. So in which ways is immigration detention different than criminal detention?

Malcolm L. Stewart: Well, I think the -- the real difference is the justification for the detention. That is, the justification for criminal detention, at least with respect to convicted prisoners, obviously, is that they've found -- been found guilty of a crime, and for that, you need judicial process. There -- there are some circumstances Official 1 outside this country where aliens who want to apply for a visa, for instance, or who want to assert an entitlement to refugee status can do so outside this country. And where those avenues are available, during the period while U.S. Government officials are deciding whether to grant the request, the alien doesn't need to be detained. But when the alien arrives at the shores of the United States, the only two options are detention and release into the community. And so the principle that the alien has no constitutional right to be released into the community necessarily compels detention. Now, the other respect in which -­

Justice Ginsburg: Mr. Stewart, there are -- there is something in between. It doesn't have to be release, you are fancy free. You can -- they can monitor. They can use monitoring devices to check on the person who's been released.

Malcolm L. Stewart: There are various forms of monitoring and supervision that the government can use. I think it's still basically release even though it's release upon Official 1 conditions or with some form of monitoring. But the Court in Demore versus Kim says the Due Process Clause doesn't require Congress to use the least restrictive means with respect to detention of aliens. That -­

Justice Breyer: The statute doesn't say -­

Justice Kagan: Mr. Stewart?

Chief Justice Roberts: Justice Breyer?

Justice Breyer: The statute doesn't say about whether there'll be bail hearings or not. It just says arrest and detain. We detain people whenever we stop them for Miranda briefly, whenever -- not for -- you know, stop and search, frisk and search, et cetera. We detain them when we arrest them. Normally, if you were to say detain somebody, you would then possibly -- in most cases, you'd give them a bail hearing, all right? Now, why is the statute different here? In X-K-, I think, the agency said we'll give some of the people, those found within 100 miles of the border, we'll give some of them bail hearings. And, of course, if they're Official 1 found more than 100 miles from the border, they always get bail hearings.

Malcolm L. Stewart: Right.

Justice Breyer: But the people who -­ who are just arriving at LAX, you know, or LaGuardia or JFK or something like that, and who have a credible -- a credible claim of prosecution, they don't get bail hearings. Now, that to me is a little odd, particularly when, as Justice Sotomayor said is true, we give triple ax murderers, at least people who are accused of such, bail hearings. Are they dangerous? Are they risk of flight? Some of these people in the first category, you know, they might have relatives in Los Angeles. They might even have a green card which somebody decides is no longer valid. And so what's the basis for reading the word "detained" sometimes to allow bail hearings at the discretion of the agency; other times not to allow bail hearings and keeping the people possibly for a year, a year and a half, in a jail cell without -- sorry, I don't mean my voice to rise -- but -- but with -­ without even a bail hearing? Where? Where -­ Official 1 I mean, the word "detain" doesn't say that. It just doesn't say.

Malcolm L. Stewart: Well, Sections 1225 and 1226 have traditionally been understood to get at different categories of aliens. 1226 is the provision that we use when we arrest somebody who is within the -- who has entered the United States -- or is within the United States; 1225 is the one we use when we are dealing with aliens who arrive at our shores. Now, there is a tweak to that principle. And you alluded to the category of aliens who are within 100 miles of the border and have been in the country for fewer than 14 days. For most purposes, those are treated as though they were people who just arrived. The BIA has issued the decision in Matter of X-K­ that -- you know, you can agree with it or disagree with it, but it says for purposes of the bond hearings, we read the regulations to say they have -- they should be treated for bond hearings as though they had been arrested in the interior.

Justice Breyer: They are just as much the people you mentioned at the beginning, Official 1 those are just as much people who have no right to be in the country, just as much people who haven't been here for more than a few hours, just as much. And yet the agency itself thinks there's no problem with giving them bail hearings.

Malcolm L. Stewart: The BIA has never suggested that aliens who come to the border and are detained at a checkpoint are entitled to what the aliens are given in -- under Matter of X-K-. And I don't think there's any justification for bootstrapping that ruling.

Justice Kagan: But the BIA made that distinction because it thought that the regulation prevented other aliens coming to the border from receiving bail hearings. But it read the statute as not imposing such an obstacle.

Malcolm L. Stewart: The -- the statute says with respect to the -- the arriving aliens that these people shall be -- shall be detained for further consideration -­

Justice Kagan: Yes, and what I'm saying is the BIA read the statute in exactly the way Justice Breyer indicated. So are you Official 1 saying that the BIA was simply wrong in X-K-? Because X-K- said the statute doesn't say, the statute is perfectly consistent with bond hearings being given; it's only this regulation, and the regulation only applies at the border.

Malcolm L. Stewart: Well, even if you adopt that reading of the statute and even if you accept the decision in X-K- to -- to that extent, the authority under 1226, which is at page 156a of the petition appendix, this deals with people who are detained within the country. And it says, except as provided in subsection (c) of this section, which deals with criminal aliens, and pending the decision -- such decision, namely the decision whether the alien should be removed from the United States, the Attorney General may continue to detain the arrested alien or may release the arrested alien. And it's the regulations that provide for bond hearings for people who are arrested inside the country. So -- but even if you read that statute to authorize the executive branch to grant bond hearings for individuals who are Official 1 newly arriving at the border, nothing in the statute says that that's compelled and certainly nothing in the Constitution says that that's compelled. And if I could return to it for a second, to your question, Justice Sotomayor, when you asked is there anything comparable in other areas of the law or why would immigration be unique? I think you -- you can think of the -- the plenary power doctrine, the idea that the political branches have plenary or nearly plenary power to regulate nearly initial admission as simply an idiosyncratic feature of immigration law, but you could also think of it as an immigration application of a more general principle. That is, it's often the case that the government has to provide greater process when it tries to take away something that an individual already has than it would have to provide when it decides whether to give a benefit to an individual in the first place.

Justice Sotomayor: But what -- some process. Here, what you're saying, at least with respect to this 1225(a), is no process.

Malcolm L. Stewart: Well -­ Official

Justice Sotomayor: Because you have an executive, a parole IB -- INS member deciding whether someone should be paroled or not, and no neutral magistrate of any kind is looking at that executive decision to ensure it's not arbitrary. There's something fundamental about that in due process, which is someone should be looking at whether this is neutral or not.

Malcolm L. Stewart: Well, somebody is. I mean -­

Justice Sotomayor: Some neutral party.

Malcolm L. Stewart: Some -- but it -- it could certainly be the case as far as the Constitution is concerned that, in many situations, a person who applies for government benefits, for instance, could get the process that -- that Congress specified. If Congress specified that an employee of the Social Security Administration would make a decision as to an initial award of benefits and didn't provide -- Congress has provided for judicial review, but if Congress didn't provide for judicial review, I think that the answer as a Official 1 constitutional matter would be you have no Due Process Clause property interest -­

Justice Kagan: Mr. Stewart, is -- is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

Malcolm L. Stewart: It is premised on that. Now, we do have the -­

Justice Kagan: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -­ that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?

Malcolm L. Stewart: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.

Justice Breyer: That's an interesting --

Justice Kagan: Okay. So -- but they do have some constitutional rights, not to be Official 1 tortured, not to be placed in hard labor. Why isn't it -- it pretty close to that, not to be placed in arbitrary confinement, arbitrary detention?

Malcolm L. Stewart: Because when they arrive -- I mean, if by "arbitrary" you meant -­

Justice Kagan: "Arbitrary" means that nobody gave them an individualized hearing, and so we don't know whether they're being held for any good reason. Nobody's made that decision. So, usually, in our -- you know, usually, in our constitutional law, we think that that's a problem.

Malcolm L. Stewart: Now, I -- I think, Congress, consistent with the Constitution, could have abolished parole altogether and could have said, as a categorical matter, no newly arriving alien will be allowed to enter the country until he or she has persuaded the decision-maker that the right answer ultimately is to let that person in. I think that would be a constitutional scheme under this Court's decisions, but Congress has historically offered parole as a form of process by -- to -­ Official

Justice Breyer: Visitors too? I mean, you know, people overstay their visitors' visas. And we find a businessperson who, in fact, has overstayed his visa. Oh, you're here too long; we'll put you in a cell and we'll keep you there for 13 months. Could they do that?

Malcolm L. Stewart: Well, they could put him in -­

Justice Breyer: Constitutionally?

Malcolm L. Stewart: They could -- well, they could put him in a cell -­

Justice Breyer: No, I mean, the only answer has to be no, doesn't it?

Malcolm L. Stewart: Well, the answer -- the answer could be he is arrested; he has an entitlement under the statute in that circumstance to a bond hearing. We don't think he has a consti -- a -- a -­

Justice Alito: But doesn't he have -­

Justice Breyer: No, wait, what I'm thinking of is this. You've got me thinking at the beginning of somebody standing at the airport outside the gate or standing at -­ outside the gate down at, say, in Mexico, or Official 1 Canada, possibly. That isn't what happens. What happens is they're told to that person: You want to go home? Go. And he says: But I have a legal right, I think, to be in the United States. Very well, come in. Now he's physically in the United States. And what we do to the person physically in the United States, because he has shown that he has a credible fear of persecution, is we put him in a little reception area which looks an awful lot like a cell. And we keep him there for 13 months, possibly, or a year without a bail hearing, and maybe without anything. Now, that's the problem. And it seems to me if I'm right -- and you'll correct me if I'm wrong -- but if I'm right, it's not quite -- I mean, it has a lot of implications because there are a lot of people in that category, and -- and to say they have no rights at all or even no rights, not to be confined arbitrarily, dah-dah-dah, I'm pretty nervous about that.

Malcolm L. Stewart: Well, again, I tried to be more precise with Justice Kagan. It's no Official 1 right -- no constitutional right to be admitted into the country. And when the alien simply arrives at the border, the only alternative to release him to the community, subject perhaps to some form of supervision, is detention. And I think it's also worth pointing out that with respect to these class members, the people who were actually detained for more than six months, fewer than 5 percent ultimately prevailed on the ground that they were not removable; that is, to the extent that mistakes were made at the border as to an actual entitlement -­

Justice Breyer: Wait, but I thought 40 percent eventually win, something like that.

Malcolm L. Stewart: A number of them win, but on discretionary grounds. They obtain asylum or they obtain cancellation of removal, but they don't establish a legal right to be there.

Justice Breyer: Mr. Stewart -­

Justice Kennedy: Do you agree that detention violates due process, if there's an unreasonable delay in that detention?

Malcolm L. Stewart: I would -- if the Official 1 unreasonable delay is attributable to the government in its prosecutorial capacity.

Justice Kennedy: And how should the Court assess that reasonableness when delays result from backlogs? Let's -- let's suppose that Congress has provided only one-tenth of the necessary immigration judges to avoid unreasonable delays. Is that attributable to the government?

Malcolm L. Stewart: I would not attribute that to the government. And I think I'd like to focus on the two primary categories.

Justice Kennedy: So, if immigration judges were not available for a year and a half, that's not an unreasonable delay because we just can't count that?

Malcolm L. Stewart: Well, with respect to the arriving aliens, there still is the constitutional rule that they have no due process rights in connection with their initial entry into the country.

Justice Kennedy: But we -- we -- we started from the premise that you say that there can -- due process is violated when there's an unreasonable delay attributable to Official 1 the government. And my question is going to be how -­ how can we measure that?

Malcolm L. Stewart: Well, you're -­

Justice Kennedy: Isn't -- isn't a bright line rule, six months, nine months, whatever it is, an easier way than to say, well, are there enough immigration judges -­ which there aren't -- how -- how can we -- how can we measure this?

Malcolm L. Stewart: Well, let me say a couple of things in response to that. The first, in your concurring opinion in Demore versus Kim, you said that detention, in that case you were talking specifically about criminal aliens who were detained under 1226(c), but you said detention might become unconstitutional if the government was unreasonably prolonging the detention for some purpose unrelated to its original purposes; namely, preventing flight risk and preventing danger to the community. And so, for instance, if DHS officials were -- believed that the alien was going to win asylum at the end of the day and wanted to Official 1 keep him confined for as long as possible, and protracted the proceedings for that purpose, that would establish -- if you could prove that, that would establish a valid constitutional claim under that theory. The other thing I would say about the various bright line rules that have been -­

Justice Kagan: But if I could just push on Justice Kennedy's question a bit, I mean, for those -- that class of aliens, we are talking about people who have been in this country, who clearly do have various constitutional rights. And are you suggesting that if the backlog is five years, it's okay to keep them there for five years without a determination of whether they pose any risk of flight or whether they're dangerous?

Malcolm L. Stewart: I would say that is not unconstitutional. And one of the -- one of the points I would make is -­

Justice Kennedy: But you have to also say under your premise that it's not unreasonable, because I thought you agreed that detention violates due process when there's an Official 1 unreasonable delay.

Malcolm L. Stewart: I would -­

Justice Kennedy: Now you're saying, oh, well, there's no constitutional right. This doesn't -- this doesn't match.

Malcolm L. Stewart: Well, I would say a delay attributable to unreasonable action on the government's part. And I think with respect to the criminal aliens -­

Justice Kagan: So five years of backlog or suppose that the government decided to appeal from an adverse decision and that that created a -- a further delay of two or three years.

Malcolm L. Stewart: Let me give you my most extreme answer, and then let me give you a -- a backup answer. The most extreme answer is the criminal alien who is detained for more than six months, unlike every other form of detention that are -- is discussed in the briefs, that alien always has the option of terminating the detention by accepting a final order of removal and returning home. Official

Justice Kagan: I take it that that's your most extreme answer because it doesn't sound all that good. (Laughter.)

Malcolm L. Stewart: Well, the -- the -- but the other -- the other -- no, the other nuance to the most extreme answer is Congress, as we've said, has provided certain bases; asylum in some instances; cancellation of removal is a more prevalent form of discretionary relief for aliens who are convicted of criminal offenses and have been confined under 1226(c), Congress had no constitutional obligation to create those discretionary bases on which an alien can -- can try to remain in the country. And so Congress -­

Justice Alito: What if we -­

Malcolm L. Stewart: I'm sorry.

Justice Alito: Go ahead.

Malcolm L. Stewart: Congress could have said all of the aliens who fit within the categories covered by 1226(c) will be removed without regard to discretionary forms of relief because those will be unavailable. And if Congress can take that step, it Official 1 can also take the step of saying we will give you some hope of discretionary relief, but our resources are thin, and it may take a long time for us to rule on your case.

Justice Alito: You -­

Chief Justice Roberts: It seems to me I'm just -- just looking at your supplemental reply brief. And you say that if the process lasts longer than 14 months, it could fairly prompt an occasion for review.

Malcolm L. Stewart: I mean, it -- it could be -­

Chief Justice Roberts: -- it sounds close to a concession.

Malcolm L. Stewart: Well, I could be wrong, but I believe we were talking there about the immigration judge stage of the proceedings. And what we were saying was in order to decide whether a case is an outlier, you should look to -- to statistical evidence about how long do particular stages of a case typically take. And if a particular -- if there is an as-applied challenge and the evidence is this particular stage of the case has taken wildly longer than it ordinarily does, that should Official 1 prompt further inquiry. But if due to resource constraints or whatever it became typical for proceedings in 1226(c) cases to take three years, I think we'd endorse a different principle.

Justice Alito: That -­

Chief Justice Roberts: Yes, I think -- I think I interrupted Justice Alito.

Justice Alito: Well, I was just going to say if -- let's assume that there is a -­ that it would be a constitutional violation if there is unreasonable delay. What is the best way to deal with it? Is it for us to impose some sort of a time limit, a hard time limit, or would it be better to deal with it the way we deal with Speedy Trial Act -- speedy trial -- not Speedy Trial Act -- constitutional speedy trial claims where you look at -- at all of the factors of a particular case?

Malcolm L. Stewart: It would be much better to go the -- the latter route. And I think there are several differences between the case -- this particular setting and the cases in which the Court has adopted bright line rules, Official 1 but the one that I would focus on most intently is I'm not aware of any situation where the Court has imposed a bright line constitutional deadline where the duration of particular steps was so much within the control of the person who is asserting the constitutional right.

Justice Sotomayor: Mr. Stewart, individual consideration, like a habeas, if we granted a habeas -- if we say habeas will take care of this, the courts can look at it. What are they going to look at? I think they're going to look at whether or not you've unreasonably delayed and decide, well, there's a possibility, so let's give this person a bond hearing. The issue here is whether the Constitution sensibly would say give people a bond hearing after a certain amount of time, because then that independent neutral adjudicator can decide whether the reason the alien is being held is that he's a national security risk, he's committed a crime that's so heinous that he shouldn't be let out because he's a danger to the community, or if it's a 1226(a) class member who was picked up merely Official 1 because they were in a sweep, but there's no criminal record, they have strong ties to the community, they own property, they should be let out. Why would it be sensible to put that person in an individual situation as opposed to creating a rule that says after a certain amount of time, government, explain why this person is dangerous?

Malcolm L. Stewart: If the Court thinks the Constitution actually imposes a six- or an eight-month deadline, this case is a perfectly appropriate vehicle to say it. We think that the analysis of whether there is a constitutional violation depends on consideration of a variety of factors, including the extent to which the alien was responsible for the delay. If I may, I'd like to reserve the balance of my time.

Chief Justice Roberts: Thank you, counsel. Mr. Arulanantham. ORAL ARGUMENT OF AHILAN ARULANANTHAM ON BEHALF OF THE RESPONDENTS Official

Ahilan T. Arulanantham: Thank you, Mr. Chief Justice, and may it please the Court: I think my friend's presentation clarifies the basic difference between the parties in this case. In their view, as he says, removal and a detention are just two sides of the same coin. And we fundamentally disagree with that provision -- position for both doctrinal and practical reasons. For doctrinal reasons, it goes far beyond anything this Court has ever said with respect to the power to detain non-citizens. All the way back in Wong Wing, when the Court in 1896 first said that there is a power to detain, they did so in the next sentence by analogizing to the pretrial criminal process. You have the power to detain, but only if the detention is necessary to ensure that the person appears or to prevent, you know, a danger to the community. Similarly, in Carlson v. Landon, the height, arguably, of the government's detention power, the Court said we won't impute dangerousness to everybody who's facing deportation proceedings. Instead -­ Official

Justice Ginsburg: You -- you mentioned -- you mentioned the pretrial detainee, but there is nothing like a six-month requirement. If somebody is being detained, the remedy that the Ninth Circuit provided a hearing every six months, that is -- is not provided to pretrial detainees.

Ahilan T. Arulanantham: Your Honor, let's leave the periodic part of that aside for just a moment. As for the initial six-month hearing, the analogy there is to the -- the bond hearing that you get within days promptly, as the Court said in Salerno, after your arrest in the pretrial detention context. And if instead my friend's position is correct, Your Honor, that just the fact that you're in deportation proceedings itself is sufficient to justify your detention, then Congress could pass a law that mandated the detention of every person in removal proceedings. And, in fact, my friend said that with respect to, you know, people arriving at the border.

Justice Kagan: Well, we -- we know Official 1 that Demore said that this was permissible as long as it was for a matter of months. Isn't that true?

Ahilan T. Arulanantham: Yes, two things, Your Honor, that it was a brief, and also that the-- the detainee had conceded their deportability. And I think both are extremely important here. Obviously the detention times here are something like either eight or 10 times, depending on who you talk to, more than those in Demore, but, in addition, our class members are detained for a long time because they are pursuing defenses to their cases. And many of them, 40 percent for the -- almost 40 percent for the Mandatory Subclass, two-thirds for the Arrivings, won their cases even when they were detained, you know, and I expect that number to go up.

Justice Kagan: So I agree that there's a significant difference about the time. I guess I'm less sure whether there's a difference as to that second factor because it's -- I think many of your clients are pursuing cancellation of removal, which I Official 1 believe was the same as in Demore; is that not correct?

Ahilan T. Arulanantham: No, it is not, Your Honor. This is an important point. So the only relief, as the Court understood the claim in Demore, which was not actually what was true of Mr. Kim, but as the Court decided the case, the only claim he was -- relief he was seeking was withholding of removal. And withholding of removal does not give you a right to remain in the United States. You lose your green card and can be deported to any country, except for one, you know, unless conditions change in that country. It's a form of weaker kind of asylum protection. In contrast, cancellation of removal, which is half the Mandatory Subclass is eligible for that, if you win that, you keep your green card. You're never ordered removed. And the same is true for adjustment of status, is also true for asylum, for the Arriving Subclass. So there's a fundamental difference here. Those people get a path to citizenship, actually, you know, through that case. Official 1 And the reason why that matters so much is because the Court treated the concession of deportability as like a proxy for flight risk in Demore and accepted that as a proxy, a categorical generalization because the detention was brief, right?

Justice Gorsuch: Counsel, can you help me -­

Ahilan T. Arulanantham: But that is a poor proxy for our -- excuse me, Your Honor. Excuse me.

Justice Gorsuch: You know what, I'm sorry. I'm way over here. I was hoping you could help me with a couple of jurisdictional tangles I'm snarled up in. One is 1252(b)(9), which as you'll recall, indicates Congress's intent to strip courts of jurisdiction over final orders of removal, attack -- collateral attacks on them. What do we do about that, in your view? And then also (f)(1), which the Ninth Circuit worked around by saying, in part, it was interpreting the statute, not restraining the statute. But if we go down constitutional grounds, we would be restraining the statute -­ Official

Ahilan T. Arulanantham: Yes.

Justice Gorsuch: -- at least through a declaratory judgment, which, of course, the government -- we would expect them to abide it much like an injunction. So how do -- how do we handle those two problems?

Ahilan T. Arulanantham: Yes, Your Honor.

Justice Gorsuch: I'd like the government's view on that too.

Ahilan T. Arulanantham: Yes, Your Honor, (b)(9) unfortunately is not briefed, but the government has said repeatedly that it doesn't apply to detention claims. And that makes sense because the only time you can challenge it is in a petition for review of your final removal order, which in this case is after all the detention has already happened. So -­

Justice Gorsuch: Right.

Ahilan T. Arulanantham: -- so they've read the statute, as have we, to not bar detention claims.

Justice Gorsuch: And -­

Ahilan T. Arulanantham: As to (f), Your Honor, also unfortunately not briefed and I think waived insofar as the Ninth Circuit ruled Official 1 when at the time that the Ninth Circuit -­

Justice Gorsuch: Can it be waived? That would be an initial question I guess I'd have.

Ahilan T. Arulanantham: Yes, I think it can be waived, Your Honor. It doesn't -- it just goes to the remedial power. It doesn't go to subject matter jurisdiction.

Justice Gorsuch: Okay.

Ahilan T. Arulanantham: And the -- the Ninth Circuit ruled -- recognized that there was a constitutional claim in the case at the time it issued its class certification order. The government argued (f) at that time, and never sought certiorari, but if Your Honor also has concerns about it I would say, you know, it says the Supreme Court has the power.

Justice Gorsuch: Right.

Ahilan T. Arulanantham: Because it exempts the Supreme Court, and, you know, we're here now. It's a habeas petition.

Justice Gorsuch: Right.

Ahilan T. Arulanantham: And it also doesn't mention habeas at all, which was the basis for the Court's jurisdictional ruling in Demore Official 1 v. Kim. And since then actually Congress amended the Real ID Act and they put explicit mentions to habeas in other provisions of 1252, but they didn't do it in (f), so I think there's a, you know, a reasonable statutory argument -­

Justice Gorsuch: Thank you.

Ahilan T. Arulanantham: -- to that, Your Honor. You know, going back, though, to Your Honor's question, Justice Kagan, you know, they viewed deportability, the concession, as a proxy for flight risk. And what we know now, at least as to our group of people who have substantial defenses, is it is a horrible proxy for flight risk. And, you know, we have people in our case who have citizenship claims -- excuse me, have married U.S. citizens, and they have a petition. And they're going to win their case. They're just waiting for the DHS to decide the petition. And they get detained like eight months, 10 months waiting for this petition to get decided. That person has no reason to flee. Official 1 We also have alternatives to detention now, intensive supervision, gets extremely, extraordinarily high appearance rates by the government's own witness testimony, and so the idea that the immigration judge can't just look at that to individually assess whether or not you actually do present a flight risk, it seems like the due process clause should require that here, even if it didn't require it in Demore.

Justice Kagan: You know, thinking about Demore again on just the timing issue, Demore makes a big point of saying how short the times are here and most of them are 90 days. And even at the top end, it's only five months. But Mr. Demore himself was six months. So I guess my question is does that mean that your proposed remedy, which is a six-month line, just doesn't fit with Demore, given that we sent Demore back and he was -- he continued to be detained?

Ahilan T. Arulanantham: Your Honor, I think the Court decides, the opinions should be read to decide the claims that are argued. And Mr. Kim never argued that my detention is, I concede, fine, for the first six months, it Official 1 only became unconstitutional after that time period. He never made the argument that, for example, there's a long history, even in the criminal context, with respect to petty offenses versus, you know, serious ones. Six months is treated as a really significant limitation because of the jury trial right. He didn't argue that Zadvydas required, you know, because Congress previously doubted the constitutionality of detention beyond six months, that that was the relevant line. So I don't think Demore controls the question. I think it is open. And I think, you know, I think I've sort of given you some of the reasons why I think six months is a logical rule. You know, this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months. So I think it would be extraordinary to do that. Demore certainly didn't say that. Demore said the vast -- the outlier cases for the tiny percent involving appeals will be four Official 1 and a half months, and most of them are 47 days. And the Court didn't understand I think what the Court here obviously does now about backlogs and about also the way the immigration process is structured. So, if you want to apply for cancellation of removal, for example, you have to take what they call a continuance. If my lawyer -­

Justice Ginsburg: Would you -- would you clarify the relief that you're seeking now? I don't know of any regime, maybe there is one, where someone who is being detained has to be brought before a judge every six months. Is it, as you pointed out, with the pretrial detainees, there's an immediate bail hearing. But is there any -­

Ahilan T. Arulanantham: Yes, Your Honor.

Justice Ginsburg: Yes?

Ahilan T. Arulanantham: Yes, Your Honor. The agency's own regulations governing Zadvydas detainees, people who have lost the right to live here, there's -- there's two of them, 241.4 and 241.14. The second one provides for IG bond hearings every six months for people Official 1 who are especially dangerous. So they're detaining them, notwithstanding Zadvydas, because they are a national security threat or sex offenders, and there's a couple of other provisions there. 241.4 provides it every year. And there are other civil commitment schemes that do it every year. It's true that six months is rare, although the agency does do it in this, you know, in this other context. Our main concern, Your Honor, is that this is a group of unrepresented people. So -­

Justice Alito: But that can be done by -- it can be done by Congress. It can be done by regulation. But it's quite something to find six months in the Constitution. Where does it say six months in the Constitution? Why is it six? Why isn't it seven? Why isn't it five? Why isn't it eight?

Ahilan T. Arulanantham: Yes, Your Honor, it doesn't say it in the Constitution. It didn't say 14 days in Justice Scalia's opinion in Shatzer.

Justice Alito: Yeah, that's the only example I can think of, but there, that's Official 1 entirely within the power, the control of the -- of the government entity making the arrest. So you arrest somebody, you've got a certain period of time, the 48 days -- the 48 hours. It would have to be short, and the 48 hours is just -- provides clarity. But this is -- this is different. There are many factors that can go into the question of whether the delay is unreasonable. Isn't that true?

Ahilan T. Arulanantham: Well, I don't think that -- let me answer two ways, Your Honor. First, Congress previously doubted the constitutionality of detention beyond six months in Zadvydas. It's also in McNeil a useful benchmark for a civil commitment -­

Justice Alito: Well, how -- do you say Congress doubted the constitutionality -­

Ahilan T. Arulanantham: I'm just quoting -­ I'm just quoting the Court in Zadvydas. And that's it. But, Your Honor, the -- the other argument for it really arises from the fact that, you know, when detention becomes prolonged, something is fundamentally Official 1 different. So you have to draw a line somewhere, or else you don't end up with, you know, an administrable rule. And what we -­ what we've seen in the decade of litigation on this subject since Demore is that the lower courts that failed to -- I mean, it didn't even start out that way. The Ninth Circuit first said detention was unconstitutional if prolonged, or construed the statute in light of that, in 2005. And then there were more cases. Four and a half years detention, I had a client in 2006; seven years detention in Casas-Castrillon, another case that came, I think, another year later. The Third Circuit, the same thing happened. They first said it was unconstitutional or, excuse me, they construed the statute to avoid the constitutional problem, which I know Your Honor is not a huge fan of, but, you know, they did that first, and then four -- four years later, there's been two other cases. And so then they start saying we have to have some kind of guidepost. So that's I think the rationale -­ Official

Chief Justice Roberts: Those are certainly -­

Ahilan T. Arulanantham: -- for a temporal rule.

Chief Justice Roberts: Those are certainly outlier cases. And, you know, they obviously -- concerns are heightened as you get beyond -- as you extend the time period. But six months, I mean, the time period that you've selected, how long -- what is -­

Ahilan T. Arulanantham: Yes, Your Honor.

Chief Justice Roberts: Give me some sense of how I can figure out how often that is an issue with respect to the broad group of people that are -­

Ahilan T. Arulanantham: Absolutely, Your Honor. If you look at EOIR updated statistics, so the government's statistics that they published in FY 2015, which they cite in their -- somewhere in their -- in their briefs, is when they -- when they corrected the error in Demore v. Kim, they cited it there, the updated statistics were published, 90 percent Official 1 of all detention cases under mandatory detention finish in less than six months. So six -­

Justice Kennedy: What did you say?

Ahilan T. Arulanantham: Less than six months. So six months, our class, is the outliers. You know, we are the outliers. And the reason for that is because our class is the people who have substantial defenses. And it is true that -­

Chief Justice Roberts: Well is that -- but just taking the outliers, the government makes the point that in many cases those individuals are compiling an evidentiary record to substantiate their -- their claims. So that that should be taken into account in considering how -- how long it is. And I suppose the government's alternative of individualized assessment, which would take into account whether or not the people are using the time to compile a record or not and are particularly interested in getting out now as opposed to in three months or whatever, why doesn't the suitability of individualized -- the availability of Official 1 individualized relief through habeas or another procedure become more plausible to the extent you're dealing with a smaller category of cases?

Ahilan T. Arulanantham: So although it's only 10 percent that go beyond six months, it's still thousands of case. You know, if you take just snapshot data on any given day, we got that data for our class, it was 400 people in the Central District of California on any given day. It was a 1,000 people over the -­

Chief Justice Roberts: Some of whom -- some of whom, as we've been discussing are there because they're compiling evidence -­

Ahilan T. Arulanantham: Right.

Chief Justice Roberts: -- to make -­ allow them to make a stronger case, and it's not clear why -­

Ahilan T. Arulanantham: Understood.

Chief Justice Roberts: -- that shouldn't be a consideration that diminishes their claim.

Ahilan T. Arulanantham: Right. Understood, Justice. So let me answer that portion of it. We fundamentally disagree on the Official 1 question whether you get a hearing to assess whether your detention is lawful or not where the reason for the delay is because you're compiling a record and pursuing relief. I think, you know -- I agree that if you want to give up and go home -- you know, Mr. Rodriguez came here at the age of one, so, you know, I'm not sure where home is, but, anyway -- and, in fact, a huge majority, something like two-thirds of the Mandatory Subclass, came here prior to the age of 21. So -- and they have -- 60 percent have U.S. citizen children or spouses. But anyway, if, you know, if you want to leave, then you can give up and you control the length of time in your case; true. But if you want to apply for any relief, or make any defense, you want to contest the charge, anything like that, you do not have control over how long your case will take anymore.

Chief Justice Roberts: I'm not talking -- I understand -- I understand I think both the government's point and your response about you hold the keys in your pocket and why Official 1 that's not satisfactory in -- in every case. But my question is that it's -- it's not everybody who is -- the government is not entirely responsible for the length of time that the individual or the individuals are being detained.

Ahilan T. Arulanantham: Yes, and, Your Honor -­

Chief Justice Roberts: And -- and I'm just trying to get a number. You say 400 people in -- in -- in where? In the Central District -­

Ahilan T. Arulanantham: In the Central District of California.

Chief Justice Roberts: Central District of California.

Ahilan T. Arulanantham: Yes.

Chief Justice Roberts: And the number of people who are not partially responsible for that delay themselves is -- is some smaller percentage of that.

Ahilan T. Arulanantham: Yeah.

Chief Justice Roberts: And I'm wondering, as the number gets smaller and smaller, at some point the prospect of Official 1 individual rather than -- individual application rather than unusual class-wide relief becomes a more palatable option.

Ahilan T. Arulanantham: Understood, Your Honor. I think if the Court were to hold that you don't even get a hearing, you don't even get to look at your detention, if you are partly responsible for the delay insofar as you're litigating your case, then almost nobody will get out, and you're right that the number of habeas petitions will be very small, you know, assuming that this would be done through individual habeas petitions. But I disagree with the premise because I don't think it's fair to say that you control the length of your detention just -- I mean, you control it in the sense that you could give up, but beyond that, you do not control it.

Chief Justice Roberts: No, control is -- right. I'm thinking something of the way we approach speedy trial claims. In deciding whether or not you've been deprived of a speedy trial, you have to take out of the calculation times when you've asked for a continuance and Official 1 so on and so forth.

Ahilan T. Arulanantham: Right. And that analogy is -- is I think fundamentally misguided, you know, because the Speedy Trial Act gives you release, and it gives you dismissal of the prosecution if, after you do the calculation you describe, you know there has been a violation. It applies even if people are not detained, right, because the government has a separate obligation to pursue a proceeding in an expeditious manner. There's probably some speedy trial-like constraint also in the immigration context, but we haven't argued that. The Due Process Clause is a separate constraint, which is detention has to be necessary to serve its purpose. And even if you are litigating your case in good faith, because you're a U.S. citizen's wife or because Mr. Rodriguez has, you know, a baby child at home, he misses the first three years of his child's life, you know, that is because he's pursuing relief. So, in that sense, he is responsible. But it doesn't make him a flight risk. You know, and Official 1 so all we're saying is that, for that reason, you should be able to get the hearing on due process grounds, not speedy trial, you get it on due process grounds when the detention has become prolonged. And while the judge may say, you know what, you are pursuing dilatory tactics, you don't have a good faith claim here, or I think you're going to flee, I think even putting an ankle monitor with a GPS device on you is not going to be good enough or you have a horrible criminal history, then that's fine; that person gets detained. But the other people for whom that is not true, which is a lot of people in our class, you know, those people should have the chance to -- to make the case in front of the immigration judge. Your Honor -­

Justice Alito: Well, why do you say -- why do you say it should -- it should happen at six months? Why shouldn't it happen immediately?

Ahilan T. Arulanantham: Your Honor, we -­ we thought it should happen immediately. In Demore v. Kim, we lost. And I think that the Official 1 Court accepted the idea that a categorical generalization, rather than an individualized assessment, was okay for brief detentions as to people who had conceded their deportability. So -- and that's essentially it, you know. If -- if -- that may be fine and you don't need that hearing on day one, but once your case has taken a long time, deprivation of liberty is greater, then you need -­

Justice Alito: But what -- does that reflect the idea that there is a significant flight risk in this category of cases? That's why there's the six-month rule?

Ahilan T. Arulanantham: You know -- sorry, you mean the six-month rule from Demore? Congress -- Congress said, and we disagree with this because I think -- the Congress said that there was significant flight risk concerns here. That was because of their lack of bed space, you know, but that's -- that's -- that ship has passed, as long as Demore is good law; you know, the -- the Court said, you know, that's a -- that's a sufficient justification. But it didn't foreclose our showing in a case like this. Official

Justice Gorsuch: Counsel, building on that, I can imagine some individuals thinking that they have a good argument that they should be released before six months, at some point between zero and six months. Would the class-wide relief preclude those claims and, if not, and we're going to be doing individualized claims anyway for the period of zero to six months, what -- what do we gain by creating this bright line rule?

Ahilan T. Arulanantham: We defined the classes that we thought was the outer limit. I agree with you. I think there may be -- Your Honor, excuse me -- that there may be people who are entitled to hearings before that. I don't read this as foreclosing that because, you know, the maximum -- or the sort of most favorable relief we sought was detention -- excuse me -- was -- was hearings at six months. So I think we've foreclosed -- yeah, we've foreclosed the claims we pled but, you know, don't -- don't foreclose, you know, for the -- for the things that we didn't ask for.

Justice Gorsuch: So we're still going Official 1 to have individualized claims between zero and six months and individualized claims, I assume, between six months and 12 months and so forth?

Ahilan T. Arulanantham: Well, hopefully not the latter if -- if we were to win on six months, but as to the initial -­

Justice Gorsuch: Well, why not? If they're detained at six months, but conditions change between six and 12, I would -- I would want to bring a habeas petition at that point.

Ahilan T. Arulanantham: I under -- I understand, Your Honor. So first, as to the short, the before six months, as a practical matter, very unlikely because it is impossible to get a habeas adjudicated most of the time before six months. The American for Immigrant Justice brief at page 31, it co-lists the statistics.

Justice Gorsuch: I would hope that in detention habeas petitions get prompt attention.

Ahilan T. Arulanantham: You would hope so, Your Honor, but in practice -­

Justice Gorsuch: Yeah. Official

Ahilan T. Arulanantham: -- it -- it takes 19 months in the Eleventh Circuit. It takes about 14 months, I think, in the Third. The fastest circuit -­

Justice Gorsuch: To get before a judge at all or to have it finally adjudicated?

Ahilan T. Arulanantham: To have it finally adjudicated.

Justice Gorsuch: Okay.

Ahilan T. Arulanantham: To have it finally adjudicated. But -- but part of the problem, Your Honor, is they're assessing all these individualized factors, which they don't know about, because they don't have the case in front of them, and that takes time. The immigration judge -­

Justice Breyer: How has it worked? I'd assume that the reason six months is not picked out of the air but, rather, six months reflects what's -- reflects Zadvydas, where it wasn't absolutely six months, it was presumptively six months.

Ahilan T. Arulanantham: Right.

Justice Breyer: And you could say Official 1 your continued detention was unreasonable prior to six months, and you could say it was reasonable up to eight months, all those things were true of that case.

Ahilan T. Arulanantham: Right.

Justice Breyer: Now, how has that worked out? I assume that it has worked out that the problems that had been raised are not overwhelming and, therefore, for purposes of uniformity, which gives the government some time, like many times what it has in an ordinary criminal case, to proceed, and yet doesn't have the extreme detention, that that's where that number comes from. So how has that worked out in the Zadvydas context?

Ahilan T. Arulanantham: Your Honor, let me answer both that and then just finish answering Justice Gorsuch's question. I think Zadvydas has worked out quite well. You know, after -- there was one big dispute, which is does it apply to excludeables. That was resolved in Clark v. Martinez. You know, I don't -- I'd be Official 1 surprised if Your Honors have seen a cert petition. I certainly am not aware of one arising out of Zadvydas. You know, in contrast, the Demore rule, you've got our case, you've got Prayopp, which is currently pending before this Court, and there is other -- I mean, there's a lot of litigation that arose from trying to figure out the limits on Demore, unlike Zadvydas. Just to go back briefly, Your Honor, the immigration judge, if they are the one conducting the hearing, it does not take them long to make this assessment. The hearings take about 10 to 15 minutes actually just because they have the merits case, right. The habeas court, totally a different story. As to the -- the later habeases, Your Honor, that's part of the justification in our view for periodic review. It is also a rule of administrability. It ensures that there's another look at the hearing -- at the detention after one month -- excuse me -- after one year. You know, it might be that what was sufficient to detain at six months, that -­ that's not sufficient to detain after six Official 1 years, which is how long Mr. Rodriguez's case, you know, took to finish. And in their view, all of his detention for that entire time would have been justified because it's his fault, he is the one who is trying to challenge his claim. And even when he gets to the Ninth Circuit, the government confesses error, and then remands it back, you know, but -- but he's still the one pursuing relief. And he can go home to Mexico, which he hasn't been since the age of one. And so that's why -­

Chief Justice Roberts: Well, I don't think the government -- I don't think the government says that the entire period is his fault because he's pursuing relief. I think their point was there are discrete periods where they're actually trying to compile a record. They're not suggesting simply because he's seeking relief, they can keep him as long as they want because he can always give up the relief.

Ahilan T. Arulanantham: I -- I would hope that is their position, Your Honor. I guess my Official 1 -- my broader point would still be that the fact that he's pursuing relief, if it's dilatory, that should -- you should not let that person out, and the immigration judge can make that assessment. If it's a plausible claim, a colorable claim, which it obviously was in his case, then he shouldn't have to be locked up.

Justice Ginsburg: May I ask a -­

Justice Sotomayor: Counsel, can I go to the 12 -­

Justice Ginsburg: May I ask you a procedural question before? Suppose we reject your constitutional avoidance question. Would there be any impediment to the relief you are seeking if we were to remand it to the Ninth Circuit to take a first view of the constitutionality?

Ahilan T. Arulanantham: I mean, obviously, the Court could do that, certainly. It's within its power to do that. I'm not sure if that's -- but we're continuing to press the construction claim as well, although I haven't discussed it, but, yes, the Court could do that. Official 1 That being said, the Ninth Circuit I think quite clearly viewed the relief as necessary to vindicate constitutional rights. It said that at the end of the opinion, that the purpose of these hearings is to make sure that the detention actually serves its purpose. So, you know, I can come back for Number 3 perhaps, Your Honor.

Justice Sotomayor: Counsel, can I ask you a practical question?

Ahilan T. Arulanantham: Yes.

Justice Sotomayor: I -- I have seen the statistics that since the Ninth Circuit order, under the 1226(a) category, there have been more people released than previously. Why? Under 1226(a), you get a bail hearing before an INS judge. The burden is on the -- on the -- on the immigrant to prove that they're not a flight risk and are not a danger to the community. And they can make a motion to have that situation relooked at.

Ahilan T. Arulanantham: I have two guesses, Your Honor. Sorry. Sorry.

Justice Sotomayor: Yeah. And so what is it that has changed the outcome so much? Official

Ahilan T. Arulanantham: Right. So I'm not -- I'm not actually aware of the particular statistics you're referring to, but my two guesses as to why there might be more releases, one is the burden shifts after six months, even for 1226(a) detainees, and they get also a requirement that alternatives to detention be considered under the injunction. That didn't exist under regular 1226(a). And second, Your Honor, as a practical matter, we know, you can see it in the Metidat declaration, in the Inlander declaration, even people who are eligible under changed circumstances for bond hearings, they don't have lawyers, they don't know that rule. They don't read the regulation. Whereas when you have a periodic hearing, the people get the hearing automatically and they're more likely to get access to the Court. I mean, for sure --

Justice Breyer: What is your answer -- what is your argument on statutory -- I don't get the statutory part on the second part.

Ahilan T. Arulanantham: Yes, Your Honor. Official

Justice Breyer: Which is that, you know, the criminals, they finish their sentence, they're finished. After there's a final deportation order, you can only keep them six months, roughly, while you're looking for a country, but in between the time they are released, finish sentence, and there is no final deportation order, keep them for months and months and months without a bail hearing. So, but the statute says shall take them into custody when he's released from his prison time, and then it says the Attorney General may release only if, basically, the AG is necessary witness protection.

Ahilan T. Arulanantham: Right. Your Honor, let me -­

Justice Breyer: Now I can't figure out a way, how do you interpret the statute to get around that even under constitutional components?

Ahilan T. Arulanantham: Right, Your Honor. Let me briefly answer that and then turn to Arrivings, because I see that my time is limited and we haven't discussed that yet. We have nothing new to say on the Official 1 subject. The two arguments were Your Honors' decision in Zadvydas required that Congress speak in clear terms to authorize a prolonged detention. We read only if as allowing release even as to brief detentions, and we know that Congress understood this because in the Patriot Act they did clearly authorize detention beyond six months even for pending cases under 1226a, with no parentheses. That's -- that's the argument. If I may turn briefly to the Arrivings, Your Honor. Just three quick points. You know, first, my friends twice in their briefs defended or cited Matter of X-K­ as though it was a description of the law. So, on the question whether you do get a bond hearing under 1226(a) if you cross in the desert and shortly after are arrested but then pass the credible fear interview, they -­ they -- I thought they had endorsed that. They say it in their -- in their brief. He now relies on the regulation. If you look at our opening brief on this question, which is unanswered by the government, the Official 1 problem with the regulation, with relying on the regulation is that the statute, 1226(a), says attorney general in it. And the attorney general cannot then turn around and give that authority to the DHS. If Congress gave it to the attorney general, the attorney general's delegate has to exercise that. And that's the BIA's decision in the Matter of Garcia/Garcia, that the immigration judges are the attorney general's delegate. So that's why they are the ones who have to decide as a statutory matter when someone passes the credible fear interview and are in their full removal proceeding, whether they're entitled to release on bond. And the advantage of that -- I mean, I think that's the best reading of the statute, period, even if there's no constitutional problem because, you know, as we discussed last time, Justice Kennedy, there's a neighboring provision for people who are denied credible fear that says you shall be detained pending the removal proceeding. This one only says shall be detained for the proceeding, like I'm standing in line for the movie or I'm studying Official 1 for an exam, you know, that's how we read the provision. And certainly, if you add the constitutional question of whether, if you can't put them to hard labor, as in Wong Wing, and you can't torture or -- or shoot them, you also can't detain them for no reason whatsoever, you know. And the government concedes -- I -- I -- I took my friend to be saying we agree or at least in practice, not as a constitutional matter, but we released the people who are not a danger or flight risk after they have passed a credible fear interview. So then our constitutional dispute is really quite narrow, it's just whether the jailer gets to make that decision, I think you're not a danger or a flight risk, or instead a neutral, the immigration judge, who's got the case, should be the one making the decision. Because we both agree that if they're not a danger or a flight risk and they've passed the credible fear interview, they should get out. You know, and as we saw, you know, Official 1 two-thirds of this class, these people who passed the credible fear interview, they win asylum, even when they're detained. You know, that number surely goes up when you get out of -- when you get out of prison, when you're talking about a class of people who have fled horrific persecution in some cases. And in that situation, we think that it's entirely appropriate for the Court to find that those people have a right to be free from arbitrary detention. And that's the reason why we would request the Court affirm the injunction as to the Arrivings, as well as with respect to everybody else.

Chief Justice Roberts: Thank you, counsel. Mr. Stewart, two minutes. REBUTTAL ARGUMENT OF MALCOLM STEWART. ON BEHALF OF THE PETITIONERS

Malcolm L. Stewart: Thank you, Mr. Chief Justice. I'd like to focus on the criminal aliens, because I think I spent most of my initial time on the arriving aliens. Justice Kagan referred to the Official 1 correction of the statistics that were before the Court in Demore versus Kim, but I think it's important to -- to emphasize that most of what the Court thought to be true at the time of Demore was true; that is, the Court said this detention has a natural stopping point because it lasts only as long as the removal proceedings are ongoing. That's still true. The Court said the large majority of cases, the IJ's decision is not appealed, and in those cases, the average and median times of detention are about a month, and that was true. The one respect in which the detention times have turned out to be much longer than the Court in Demore thought they were was in the category of cases around 10 to 15 percent where an appeal from the IJ decision is taken to the BIA. But the large majority of those cases are cases involving an alien who loses before the IJ and takes his own appeal. And so to the extent that the Court was misinformed about the -- the statistics, it's really in a category of cases where it's the alien's own volitional choice that causes a further stage of the Official 1 proceedings to be triggered. That's not to say that the alien is at fault. It's to say that the Court should use the same methodology that it uses under the Speedy Trial Clause, the Speedy Trial Act where in determining whether a delay has been undue, the Court focuses on the reasons for the delay, whether it's attributable to some improper act by the government. Counsel -- opposing counsel said at the end that really the constitutional dispute as to the arriving aliens has been crystallized. It's just a question about who makes the decision. And that goes to the very essence of this Court's holdings, that aliens at the threshold have no constitutional rights under the due process clause.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:05 p.m. the case was submitted.)