Johnson v. Guzman Chavez
Oral argument transcript · No. 19-897 · October Term 2020 · argued January 11, 2021 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Vivek Suri, Assistant to the Solicitor General, for the petitioner
- Paul W. Hughes, Washington, D.C., 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 will hear argument this morning in Case 19-897, Pham versus Guzman Chavez. Mr. Suri. ORAL ARGUMENT OF VIVEK SURI ON BEHALF OF THE PETITIONERS
Vivek Suri: Mr. Chief Justice, and may it please the Court: Respondents are detained under Section 1231, not under Section 1226. In the first place, the text of Section 1231 refers repeatedly to an order of removal or to the aliens who have been ordered removed. That is clear from the caption, from the operative provision, and from the definition of the removal period. There is no dispute here that these aliens have been ordered removed. Indeed, that is the definition of reinstating a removal order. In the second place, Section 1226 supports that conclusion. The best way to see that is to lay Section 1226 alongside the reinstatement clause. Section 1226 says that it 1 applies pending a decision on whether the alien is to be removed, and the reinstatement clause says that these aliens shall be removed. Putting those two provisions together, it's clear that in the eyes of the law, the decision that has to be made -- that has to be pending for Section 1226 to apply has been made in this case. And if the Court finds all of that unconvincing, it should turn to the structure of the statute. Congress put the provisions governing reinstatement, withholding, and the selection of the country of removal all in Section 1231, not in Section 1226. That's a structural indication that it's Section 1231 that applies. I welcome the Court's questions.
Chief Justice Roberts: Now, Mr. Suri, if an alien is in withholding-only proceedings and there's no country other than the one, you know, as to which he claims statutory withholding or CAT relief, can you remove him?
Vivek Suri: No, we cannot, Your Honor.
Chief Justice Roberts: Well, then so your -- your emphasis that the distinction is 1 between whether and where really doesn't hold up across the board, does it?
Vivek Suri: I appreciate, Your Honor, that the distinction between whether and where can seem artificial in a context where there's only one option and that option potentially has been ruled out. Nevertheless, that is the distinction the statute requires us to draw, and we can see that in a few ways. First of all, in Section 1231(a)(7), Congress talks about a situation where the alien has been ordered removed, but removal to any country is impracticable or impossible because all of those countries have refused permission. Even in that context, it's 1231 that applies. That suggests that Congress did view whether and where as distinct. Second, that's the distinction that underlies the difference between withholding of removal on the one hand and asylum on the other hand. The Court hasn't said in its precedents about withholding and asylum that the two are functionally the same simply because, as a practical matter, whether and where can collapse 1 into a single inquiry. And --
Chief Justice Roberts: Well, when you say --
Vivek Suri: -- the final --
Chief Justice Roberts: -- "can collapse," that seems to me to suggest that the distinction you draw is -- is -- is not a valid one. You -- you call it -- you call it artificial, but it seems to me that it might be wrong at -- at least in the category of cases where there's no third country available. And I gather that's in the vast majority, right?
Vivek Suri: That is correct, Your Honor. But one last point I'd make to defend the distinction is that the very availability of withholding of removal in the first place depends on the Court's accepting that distinction. Recall that the reinstatement clause says that the removal order can't be reopened, can't be reviewed under any circumstances. The only way to square that with withholding is to say that withholding doesn't affect the removal order itself; it just affects the question where.
Chief Justice Roberts: Well, but isn't --
Vivek Suri: And one --
Chief Justice Roberts: -- why isn't -- since it depends upon -- whether you can actually remove the alien depends upon the particular circumstances of each case, whether there's a third country available. Why isn't that the touchstone that should be applied for -- whether it's persons in 1226 or 1231, the particular circumstances?
Vivek Suri: Because, in Section 1231, the words are "ordered removed." It doesn't refer to the practicalities of removal. And even in 1226, although the court of appeals read "whether the alien is to be removed" to refer to that practical question, Respondents themselves have abandoned that argument they had --
Chief Justice Roberts: Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Counsel, just briefly, I know this wasn't briefed, but could you just explain to me 1 briefly how the district court had jurisdiction under 1252 in this case?
Vivek Suri: In this case, Your Honor, this was a habeas corpus petition, and the Court in Zadvydas said that such a habeas corpus petition could be heard where the question is whether the government had the authority to detain the alien in the first place. The claim here is that the government doesn't have the authority to detain the alien unless it has provided bond hearings under Section 1226.
Justice Thomas: So that basically trumps 1252?
Vivek Suri: That is how the Court read these provisions in Zadvydas, and that's the precedent we've stuck with here.
Justice Thomas: Okay. Just, again, could you explain to me what we -- exactly we're reviewing here?
Vivek Suri: The Court is reviewing a determination that these aliens are entitled to bond hearings, but that determination depends on the contention that these aliens are detained under Section 1226 rather than Section 1231. So 1 that's the issue before the Court.
Justice Thomas: The -- if -- could you tell me what the difference is between "administratively final" and -- an "administratively final order" and a "final order of removal," if there is one?
Vivek Suri: Yes. The term "final order of removal" is ambiguous. It could refer to a situation where the agency has completed its review, but the courts haven't completed their review, or it could refer to a situation where both the courts and the agency have completed their review. The use of "administratively final" clarifies that ambiguity, makes clear that all we need to establish is that the agencies have completed their review. We don't need to ask about whether the courts are involved.
Justice Thomas: So does that mean -- so why doesn't it mean capable of being executed then if the agencies are done?
Vivek Suri: The definition of "finality" in 1101(a)(47) ties finality to whether the agency's review has been completed. And, here, the agency's review of the removal 1 order itself has certainly been completed. The only question left to decide is the particular country, but that's a distinct question, as this Court emphasized just last term in Nasrallah.
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: Thank you. Good morning. What percentage, if you know, of the individuals of whom it is -- you know, there's a preliminary thing, does this person have a reasonable fear that he will be persecuted or tortured or whatever if he's removed to country X? So think of the group of -- of -- where that is held by the ALJ or the administrative -- the immigration judge. That is held to be a reason. He has a reasonable fear. Then they go on to decide whether that fear is, in fact, correct, to make a finding on that. What percentage of those who fall into 1 the reasonable fear category, so the -- the immigration service will look into it, what percentage is it found that they are, that they do -- that they -- that they can't be sent to that country? Do you know?
Vivek Suri: Yes, I do. Our best estimate is around 11 percent.
Justice Breyer: Okay. So -- and, of those 11 percent, 98 percent never are sent anywhere, is that right? That's what we're told in one of the briefs.
Vivek Suri: Yes, that's right.
Justice Breyer: So it's about 10 percent of those who are sent in that will never leave the United States?
Vivek Suri: That's about right, yes.
Justice Breyer: Okay. So -- so given -- that's a fairly good percentage but not overwhelming percentage. So, with 10 percent who will never leave the United States, can we say that it is administratively final? I mean, with 10 percent of these people, they will not leave the United States. They have a fairly good shot, a fairly good shot. And why is it admin -- it's 1 certainly not administratively final as to those 10 percent. They're never going to leave.
Vivek Suri: The -- the best --
Justice Breyer: What do you think about that?
Vivek Suri: The best answer I have is this Court's decision last term in Nasrallah, where the Court said that a removal order's finality is not affected by CAT protection. And it doesn't matter whether 10 percent or 20 percent or some other percentage do or don't ultimately leave the country. The Court was very emphatic that the CAT order is distinct from and doesn't disturb the validity of the final order of removal.
Justice Breyer: So -- so, in your view, if, in fact, 98 percent of everyone who reasonably feared -- reasonably feared removal for prejudice and torture -- if 98 percent of them ended up never leaving the United States, do you think that this provision, 1330, 1231, would still require them to be held in custody without hope of bail for a long period of time, maybe several years?
Vivek Suri: Yes. Our --
Justice Breyer: Is that your view?
Vivek Suri: Yes. Our position turns on what is true in the eyes of the law, not what ends up happening in practice.
Justice Breyer: Well, there also are -- I'm not necessarily going to argue. I will point out that there are traditions. There is a constitution. There is a country where, by and large, we don't keep people in prison for years, whoever they are, persons, in -- for years without any chance of even getting bail. Now is that -- is that relevant to this?
Vivek Suri: Certainly, but the question about detaining people for years doesn't arise in the vast majority of these cases, and, when it does arise, the procedures in Zadvydas will address that problem.
Chief Justice Roberts: Justice Alito.
Justice Alito: Good morning, Mr. Suri. I have a couple of questions about statements that you make in your reply brief. You say that the statute makes detention mandatory during a removal period only for terrorists and criminal aliens. 1 So the two questions are these: First, does that mean that the Department of Homeland Security releases other aliens under supervision? And, second, is there a process for deciding which of these aliens will be detained and which -- which aliens will be released?
Vivek Suri: Justice Alito, as to the first question, if the alien is released, then, yes, it would be under supervision. As to the second question, the Department tries to detain aliens during the 90-day removal period to the maximum extent possible. Releases would occur only if there are operational constraints, such as a lack of detention space in a particular facility. And, no, there's no systematic framework for determining whether that decision is to be made. Rather, it's a case-by-case judgment depending on what's happening at that facility at that time.
Justice Alito: And who makes that decision?
Vivek Suri: That would be made -- I -- I don't know the answer to that question, but I 1 would imagine it's made by the local ICE field office.
Justice Alito: And what type of supervision occurs if there's release?
Vivek Suri: The supervised release conditions are set out in Section 1231(a)(3). It provides, for example, that the alien must appear before an immigration officer periodically for identification, must submit, if necessary, to a medical examination, and must obey written restrictions on the alien's conduct.
Justice Alito: All right. Thank you.
Chief Justice Roberts: Justice Sotomayor.
Justice Sotomayor: Counsel, I'm not altogether sure I understood Justice Alito's question to you or your response. Can you clarify for me, how many people are held -- are denied supervised release after the 90-day period?
Vivek Suri: After the 90-day period, I don't have exact statistics on that, but I took Justice Alito to be asking about the initial 90-day period, not after the 90-day period.
Justice Sotomayor: So I'll ask about after the 90-day period. How many people are granted supervised release after that 90-day period?
Vivek Suri: I don't have the statistics on that question, but Respondent cites a study -- cite a study that claims that 15 percent of the aliens are released at some point before the withholding-only proceedings are completed.
Justice Sotomayor: So 85 percent are restrained?
Vivek Suri: That's correct.
Justice Sotomayor: Now 1231(a) commands that the agency release immigrants -- remove immigrants within 90 days. You seem to have admitted to Justice Breyer that that, in most cases, is impossible for this class of alien. Now, if that is true, we have to pick between two provisions, 1221 -- 1226 and 1231(a), and determine which controls the question of whether these aliens can be released on bond or bail or supervision. Why should we not adhere to the basic 1 interpretive principle that counsels in favor of a harmonious reading and against choosing an interpretation that produces a substantial effect that is inconsistent with the text of another provision? If we accept your reading, basically, we're saying for this class of withholding-only -- withholding applicants, that they're never going to be removed within 90 days of the finality of their removal order. That just doesn't make any sense to me.
Vivek Suri: I -- I appreciate the force of the argument, but I have two responses to it. The first is that the obligation is subject by its own terms to the phrase "except as otherwise provided in this section." Then, if you go down to 1231(a)(5), the last sentence of that states that aliens with reinstated removal orders can be removed "at any time." We think that "at any time" takes precedence over the 90 days. The second --
Justice Sotomayor: Except --
Vivek Suri: -- point was --
Justice Sotomayor: I'm sorry. I -- I 1 -- I -- I'm not quite sure I follow that argument. You already admitted to the Chief Justice that you can't remove these people who are in withholding proceedings because the law doesn't permit you to.
Vivek Suri: I admitted to the Chief Justice --
Justice Sotomayor: So that --
Vivek Suri: I'm sorry, I didn't mean to interrupt. I admitted to the Chief Justice that, as a practical matter, these aliens can't be removed if there's no country willing to accept them. That was the same situation, by the way, in Zadvydas, where the government was searching for a country to which to remove the alien. That was analyzed under Section 1231.
Justice Sotomayor: And your second point, counsel, in response to my question?
Vivek Suri: My second point was that all that would raise is a structural inference about when the removal period would begin, but the Court shouldn't rely on the structural inference when there's an express text stating when the removal period begins.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. Suri, if I could take you back to your colloquy with the Chief Justice. You were answering his question on the assumption that there was no third country that was available. But I even want to take it a little bit further and ask you, suppose you had a third country that, for whatever reason, was willing to accept an alien. If -- if -- if that alien was currently in withholding proceed -- proceedings, you couldn't put him on a plane to that third country, could you?
Vivek Suri: We could after we provide the alien notice that we were going to do that.
Justice Kagan: Right.
Vivek Suri: But, without notice --
Justice Kagan: So that's what it would depend on, right? That -- that you would have to provide him notice, and if he had a fear of persecution or torture in that country, he would be given an opportunity to contest his removal to that country, isn't that right?
Vivek Suri: Yes, that's right.
Justice Kagan: So, in this situation, as to these aliens who are currently in withholding proceedings, you can't put them on a plane to anywhere right now, isn't that right?
Vivek Suri: Certainly. I agree with that, yes.
Justice Kagan: Okay. And that's not as a practical matter. That really is, as -- as you put it, in the eyes of the law. In the eyes of the law, you cannot put one of these aliens on a plane to any place, either the -- either the country that's referenced in the removal order or any other country, isn't that right?
Vivek Suri: Yes, that's right. And in order to prevail in this case, I have to convince you that the line between 1231 and 1226 is not when the government acquires the legal ability to carry out the order; rather, it's the entry of the order.
Justice Kagan: Okay. So, like, you have to convince me that it doesn't matter that you cannot deport the alien?
Vivek Suri: Exactly right, yes.
Justice Kagan: Okay. Let me ask you -- you know, suppose there's an alien who 1 just concedes removability and then seeks withholding relief, and the -- the -- the IJ enters the order of removability, of -- of removal, and -- and grants withholding, and then that's appealed by the government. Would -- would that alien be treated as if he were in 1226 or as if he were under 1231?
Vivek Suri: That would never arise in practice, but, if it did, that alien would be treated as under 1226 because, in that context, which I presume is outside the reinstated removal order context, what happens is that the withholding proceedings and the removal proceedings take part together. They're not bifurcated. And so, in practice, the immigration judge wouldn't enter a separate removal order until after the withholding issue also was resolved.
Justice Kagan: I -- I guess the reason I ask is because that seems very similar to me, is that you have a final order of removal and a pending withholding decision, and yet you're going to treat that alien under 1226 but 1 the aliens here under 1231. And I guess I'm wondering what difference that makes and what sense that differential treatment makes.
Vivek Suri: Yeah. If -- if we had a hypothetical world where the immigration judge were to enter an order of removal that everyone concedes is valid and then conduct separate withholding-only proceedings, then I agree, it would be 1231. All I'm saying is that doesn't happen.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Suri. I wanted to ask about a passage in your reply brief on pages 12 and 13. Your argument, as I understand it, is, under 1231, that there is a final order of removal dating back to the original order of removal. But, for purposes of 1252, the question becomes, is there some chance for judicial review of -- of the withholding-only proceedings? And -- and -- and that -- that statute also grants review only of the final order of removal. Judge Richardson acknowledged this difficulty in his dissent in the Fourth Circuit 1 and said that means that there's effectively going to be no judicial review of withholding-only proceedings. But the government apparently in the Fourth Circuit thought that there could be. And, here, on 12 and 13, I -- I -- I -- I see the government, forgive me, as maybe hedging its bets and -- and -- and -- and not really taking a position on this. And -- and my -- my question for you is, which is it? Is there review or not? And what do we do about the fact that 1252 uses the same -- very similar language as 1231, a final order of removal? Surely, a final order of removal can't mean one thing for -- in one statute and another in another. That would -- that would seem unlikely at least. So perhaps you can help me with that difficulty.
Vivek Suri: Certainly, Justice Gorsuch. First, since you asked me to take a position, yes, the government's position is that review would be available and that "final" would have to mean something different in 1252. Second, if you think that "final" has to have the same meaning across all contexts, 1 you should rule for us because the general definition of "finality," the reinstatement clause, and Nasrallah all indicate that these orders are final. And so we've offered up the idea that "finality" can have a different meaning in order to preserve the body of precedent in the lower courts about review of withholding-only orders. But --
Justice Gorsuch: Explain to me how -- how that works, though. How -- I mean, the term isn't "finality." It's a "final order of removal." And it's the exact same phrase in both statutes. How would the government have us interpret that differently here?
Vivek Suri: We'd have you interpret it differently on the understanding that "final" can mean different things in different contexts. For example, an order can be final for purposes of the court of appeals when the district court decides. It can be final for purposes of this Court when the court of appeals decides. It can be final for purposes of habeas corpus when the entire direct review process is complete. And so it is possible for "final" to 1 have different meanings. And the justification for giving "final" a different meaning in 1252 would be the presumption in favor of judicial review. But, as I said, if the Court disagrees with me about all that, then it would follow that these orders are final both in this context and in that context, and the aliens would lose in both cases.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you, Chief Justice. Good morning, Mr. Suri. In the Fourth Circuit's opinion by Judge Harris, the opinions offered a contextual argument, page 877, "The fact that the removal period is limited to 90 days strongly suggests that it is intended to apply only when all legal barriers to removal are cleared away," in other words, using the fact of the 90-day limit to help interpret these two provisions together. What's your response to that argument?
Vivek Suri: Justice Kavanaugh, the 1 first response is that the purpose of the removal period is to give the government time to identify a country of removal and to clear away the legal, diplomatic, and practical obstacles to removing the alien to that particular country. So it doesn't make sense to say that the removal period begins only when all of the legal barriers are cleared away when the whole point of the period is to give time to clear away some of those barriers. Second, the removal period definition says that the removal period begins upon the completion of three specified events, and those three specific legal barriers are the only ones that need to be cleared away. It's inconsistent with that specification to say, you know, actually, the removal period begins not only when those three barriers are cleared away but when some other unspecified universe of additional barriers also is cleared away.
Justice Kavanaugh: I want to pick up on one of Justice Breyer's questions. I think you acknowledged that some significant number of noncitizens in this circumstance could be detained for several years, and you indicated 1 that Zadvydas would be the answer to that, claims under Zadvydas. Your colleague on the other side says, instead of going through that trouble, why not read the statute here to avoid that potential constitutional problem as a matter of constitutional avoidance. And they say in their brief, "Congress simply did not write a statute that would render constitutional violations routine." Why don't we follow the lead suggested there?
Vivek Suri: Let me first correct this idea that detention could last for years. In the vast majority of these cases, the detention will last three to four months before the immigration judge issues his decision, and that's no problem, even on Respondents' very unusual case, which will last more than six months. Now, more than six months, we have both Zadvydas procedures, which the Zadvydas court has already told us cures any constitutional problem. And we also have the regulatory procedures for post-order custody 1 review. And, finally, in all these cases, the alien is being detained because we've made a determination that the alien is a flight risk or a risk -- or -- or a danger to the community. That's the trigger we've used to detain the alien under Section 1231(a)(6) for more than three months. Now, if those criteria are satisfied, they should be detainable even on Respondents' view.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Counsel, I have a question about the post-order custody review. Once the removal period ends once you hit that 90-day mark, do the regulations that govern the post-order custody review automatically kick in so that the detained noncitizen gets some sort of hearing?
Vivek Suri: Yes, they automatically kick in, and what happens in practice is that the government tries to conduct the review shortly before the removal period has expired.
Justice Barrett: And let me ask you this: In your response to Justice Sotomayor, you said that 85 percent of noncitizens in this category remain restrained after the removal period ends. And I'm wondering why the default isn't set to release with supervision. And -- and here's my reasoning: As I look at the statute, the removal period itself is 90 days. But, if it's the alien's fault that the government is not able to remove the alien during this 90 days -- and I'm looking at the period -- the provision in (a)(1)(C), which says, if the alien fails or refuses to make timely application for travel documents, et cetera, that removal period, as defined in the statute, let's say it might be 200 days. But then I'm looking at (a)(3), which talks about supervision after the 90-day period and says, you know, if the alien does not leave or is not removed within the removal period, defined as 90 days in the statute, it says the alien shall be subject to supervision under the regulations. So why isn't the default that, if it's through the fault of the government or no fault 1 of the noncitizen that removal doesn't take place within the removal period, why isn't the default supervision, rather than, as you suggested to Justice Sotomayor, continued confinement?
Vivek Suri: Let me make two answers to that, Justice Barrett. The first answer is that (a)(1)(C) isn't about what happens after the removal period; rather, it's a tolling provision. The 90 days themselves are extended. It doesn't talk about what happens after the 90 days. And then the second answer is that we agree that for aliens in general, for the whole universe of aliens, not just those with reinstated removal orders, yes, to provide relief is the default, and the findings specified in (a)(6) must be made before the government can continue to detain those aliens for more than 90 days. Our point is simply that because these particular aliens have already been removed from the country, have defied their removal orders, and have come back into the country illegally and been caught, there's a particularly strong 1 basis for concluding that those aliens are a flight risk. And within that subset of aliens, it does make sense that (a)(6) kicks in.
Justice Barrett: Thank you.
Chief Justice Roberts: A minute to wrap up, Mr. Suri.
Vivek Suri: Mr. Chief Justice, I think a lot of the questions today have focused on the practicalities and whether the government in practice would have the ability to remove these aliens. But I'd like to just remind the Court quickly that Respondents themselves have abandoned that argument. Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Hughes. ORAL ARGUMENT OF PAUL W. HUGHES ON BEHALF OF THE RESPONDENTS
Paul W. Hughes: Mr. Chief Justice, and may it please the Court: This case addresses narrow circumstances: individuals who, after removal, face persecution, returned here to escape, and have already been found to have a reasonable 1 fear of persecution. 1226, not 1231, governs detention. During withholding proceedings, the INA does not authorize removal. When the government lacks authority to remove, the decision on whether the alien is to be removed from the United States remains pending. This is the language of 1226: "Whether removal will occur cannot be divorced from where. If withholding is granted, the answer to where an individual is removed is virtually always nowhere." 1231 is not a fit. It defines the removal period as the time the government shall remove the noncitizen. It is for securing travel documents and effectuating removal. The government's contrary view is not plausible. It would have the removal period begin and end long before it could remove the person anywhere. And 1231(a)(1)(A) is the gateway. First, it defines the removal period. That time cannot begin before the INA authorizes the government to do the one thing required, remove. Second, this conclusion is required by 1 the first clause of (a)(1)(A). It says, "except as otherwise provided in this section." Withholding relief is provided for in 1231. When there is withholding, the government cannot remove, meaning there is no removal period. Third, this makes sense of Congress's determination that the removal period lasts 90 days. And all of 1226 provides indefinite detention while proceedings are underway; then, after the INA authorizes removal, the removal period begins and 1231 applies.
Chief Justice Roberts: Counsel --
Paul W. Hughes: Thank you.
Chief Justice Roberts: -- your -- your clients have been ordered removed. And wouldn't -- wouldn't you expect that their detention would be governed by a provision that is entitled "Detention and Removal of Aliens Ordered Removed"? It -- it seems --
Paul W. Hughes: Two --
Chief Justice Roberts: -- it seems to fit your clients precisely.
Paul W. Hughes: Two responses, Your Honor. That's overinclusive. As the structure of 1231 makes clear, there are a variety of 1 individuals who can be described as ordered removed that the statute makes plain are not subject to 1231 detention. So that argument the government proffers I -- I don't think can lead to the conclusion. The second point, though, is, what is the order that is -- is critical here? And in this context, you can't separate out the reinstatement order. We agree that when the underlying order of removal is reinstated, that order, of course, has effect, but it only has effect when it's merged with the reinstatement order. And -- and -- and let me explain that. When you have a prior order of removal that's being reinstated, the reinstatement order makes certain critical determinations, for example, that a noncitizen is actually the same person as at issue in that prior order; additionally, that the noncitizen unlawfully entered the United States. Until you have that determination that is in the reinstatement order, the underlying order of removal does not have legal effect under the INA.
Chief Justice Roberts: Well, what do 1 you do --
Paul W. Hughes: You must have both --
Chief Justice Roberts: -- what do you do about 1231(a)(5), which says that a reinstated removal order "is not subject to being reopened or reviewed"? I mean, you're -- you're taking the position that the withholding-only proceedings prevent that order from becoming final, and yet that would seem to me to be reopening and reviewing it.
Paul W. Hughes: Well, Your Honor, I think the Court dealt with this in Fernando Vargas, and the government doesn't disagree that notwithstanding what does look like categorical language in (a)(5), there is still the right to withholding that's provided for by statute in fulfillment of the United States' treaty obligations. And I think the best way to reconcile that (a)(5) language that Fernando Vargas tells us we have to reconcile with the right to withholding is to understand that reinstatement is a process. This is how the regulations describe it, for example, 8 C.F.R. 208.31(a). It talks 1 about the reinstatement process. And we think that that reinstatement process is conclusive and final at the time that the withholding-only proceedings conclude and that order is subject to execution. But --
Chief Justice Roberts: I suppose is -- is -- is your answer the same to what we said in Nasrallah, that a CAT order "does not affect the validity of the final order of removal"? Is that --
Paul W. Hughes: Yes, Your Honor.
Chief Justice Roberts: Yeah. I'm sorry. I'm sorry.
Paul W. Hughes: So there's two responses --
Chief Justice Roberts: I just -- I just want to make sure that your -- you'd have the same answer to the previous question I asked.
Paul W. Hughes: Yes, Your Honor. Two responses. It's a question of when is it that it becomes final. But, second, stepping back -- and -- and I know -- I believe this gets to the administrative finality trigger in (a)(1)(B) -- we believe if the Court looks there, for all the 1 reasons I just described, you would not conclude it's administratively final until it -- it -- it's executable and that process concludes. But that's --
Chief Justice Roberts: Thank you.
Paul W. Hughes: -- our second argument.
Chief Justice Roberts: All right. Thank you, counsel. Justice Thomas.
Justice Thomas: Thank you, Mr. Chief Justice. Mr. Hughes, I'm a bit confused. Would you -- so we had a removal order that Respondent was subject to. We agree on that. Respondent returns to the country. Now what happens to that underlying removal order in your assessment?
Paul W. Hughes: Your Honor, for that underlying removal order to be reinstated, there has to be certain determinations that are made, which includes identifying that the person at issue is the same person that was subject to and deported on the first time pursuant to that removal order; second, that the individual, in fact, unlawfully reentered the country rather 1 than --
Justice Thomas: Let's assume that's -- let's assume those -- that's accurate, that -- that we're not debating the factual part. What's the effect of the process of reinstating removal?
Paul W. Hughes: Your Honor, when you have that reinstatement order, it does bring back to life the underlying order of removal. And so, with the underlying order of removal and the reinstatement order paired together, that, when that process is final, does authorize the United States to remove an individual when that -- when that process is concluded.
Justice Thomas: So what -- why is that -- how -- how do you reconcile that? And this goes back to the Chief Justice's point. How do you reconcile that with what the Court said about CAT orders in Nasrallah?
Paul W. Hughes: Two reasons, Your Honor. First is, when do we think that this process reaches conclusion? And we think the process reaches its conclusion, it's administratively final, at the point that it's -- it's executable. And that's important because, 1 otherwise, the categorical language of (a)(5) would seem to allow the government to remove an individual during the pendency of the withholding process. But the government doesn't take that position. My friend on the other side made that quite clear, that they cannot do so. That would be in violation of the statute. But my -- my first point, if I can for a moment, is that we don't think the Court even needs to reach (a)(1)(B) and administrative finality, and that's because (a)(1)(A) is the gateway that defines what the removal period is. And if the removal period -- if the government categorically does not have authority to remove, it makes no sense to conclude that the removal period, the 90 days during which the government shall remove, has begun. It simply doesn't meet the definition without even getting into the -- the -- (a)(1)(B).
Justice Thomas: Thank you.
Chief Justice Roberts: Justice Breyer.
Justice Breyer: Well, your last point, "except as otherwise provided in this 1 section," what is -- what is -- where does it otherwise provide that -- that -- that you have this, say, the torture as the statute claim and the persecution claim?
Paul W. Hughes: Yes, Your Honor. It's in (b)(3). 1231(b)(3) is the provision of 1231 that says, when you have a withholding claim, the attorney general may not remove an alien. And so Your Honor is precisely right, it's that "except" clause which shows that when the government does not have authority under the INA to remove, the removal period does not begin. And -- and that makes sense of this statute, that the 90 days during which the government has one obligation, to remove, that's why this is the time period Congress wrote in. It's also why, in (a)(1)(C), the noncitizen has certain obligations, for example, to cooperate in obtaining travel documents. That whole structure of the statute makes clear that the removal period is -- as that title says, removal period, it's when the government shall remove. And so --
Justice Breyer: Why -- now you -- you 1 -- you mean to -- do you mean to abandon the administratively final? The way I have been reading that is a possibility, though it favors you -- don't tell -- tell me I'm wrong right now if I'm wrong, please, because it won't do any good. (5) -- (a)(5) -- you know, (5) says reinstatement. So you reinstate an order. The order says, Smith, go. Now we cannot question that order that says, Smith, go. That's what it says in (5). You don't question that. But there are some things you could bring up. You could say: By the way, I'm Jones; I'm not Smith. And now you could also say: By the way, I don't want to go to country X because they're going to murder me, et cetera. And what supports that is the date the order of removal "becomes" -- it doesn't say the date it was reinstated. It doesn't say became final. It says "becomes final." And so something must have the possibility of happening between the time you entered the order saying -- an old order -- go, Smith, and the beginning of the removal period. Now is that correct?
Paul W. Hughes: Yes, Your Honor. We absolutely make and embrace that argument throughout.
Justice Breyer: All right. If -- if you make and embrace that argument, I can think of two things that stand between entry order, go, Smith, and the beginning of the removal period, i.e., administratively final: one thing, when you say: Hey, I'm not Smith; I'm Jones. Second thing: I won't -- don't want to go to country X, they're going to murder me. Are there a third, fourth, and fifth thing?
Paul W. Hughes: I -- I think that's principally it, Your Honor. I'm not aware of other things that would be in the way.
Justice Breyer: Okay. Thank you.
Paul W. Hughes: And -- thank you, Your Honor.
Chief Justice Roberts: Justice Alito.
Justice Alito: Mr. Hughes, I want to follow up on the question that Justice Kagan posed to Mr. Suri. Do you agree that while an alien is in withholding-only proceedings, DHS has the 1 authority, the legal authority, to remove the alien to a third country so long as it provides the alien with notice of that third country removal and the alien does not express a fear of persecution or torture with respect to the third country? In -- in those circumstances, do the statute and regulations authorize DHS to put the alien on a plane leaving the country?
Paul W. Hughes: Yes, Your Honor, if those conditions have been satisfied. And what that would typically result in would be a warrant of removal to that particular country, a 205 warrant of removal. And that would authorize, under the INA, removal to that -- to that country. And we would agree, when that occurs, that 1231 applies. But that requires, as you indicated, several legal steps between where Respondent is in our circumstances to the INA authorizing that.
Justice Alito: In Nasrallah versus Barr, you were successful. And I wonder how you can reconcile the argument that the Court accepted there about administrative finality 1 with the position that you are -- you are taking here.
Paul W. Hughes: Well, Your Honor, I think there's -- there's multiple reasons, but our first argument to start is the gateway provision of (a)(1)(A), which is to say it defines and limits the removal period as the time that the government can actually execute on the removal order. And that is explained by the first clause, "except as otherwise provided in this section." And withholding is within this section and alleviates or precludes the government from executing on the removal order. So I don't think the Court even has to get to (a)(1)(B) in order to resolve this case. And that makes 1226, which this case fits perfectly within that language, harmonious with 1231 by understanding what the very definition of "removal period" is. And that obviates the Court from even having to address questions of finality. But, if the Court does get to questions of finality, and for all the reasons Justice Breyer explained, the process becomes -- becomes administratively final when this process 1 concludes at the time of withholding. And -- and my friend on the other side has --
Justice Alito: Let me ask you -- let me squeeze in one more question. To what degree is your argument dependent on the statistics that were discussed earlier about the feasibility of removal to a third country? Suppose that there was a third country or third countries that -- that were willing to accept these aliens. Would you have an argument then?
Paul W. Hughes: Well, Your Honor, if there was that for a third country, I don't think we would even have those proceedings because, presumably, instead of spending all this time and effort litigating these cases, the government would just remove individuals to those third countries. And so I think we'd be in a very different scenario. If the government did have that country to identify, I agree we'd be in -- in very different circumstances. It -- it -- it just doesn't, and that's -- that's why we're here.
Chief Justice Roberts: Justice Sotomayor.
Justice Alito: But do you think --
Justice Sotomayor: Counsel, how much of your argument depends on your due process concern? As I understood, one of your arguments in your brief is, if we read it the government's way, we're inviting the potential of due process violations. Is that correct?
Paul W. Hughes: Yes, Your Honor. The government's point that Zadvydas, they think, is the back-end protection here, I think, is revealing on that end because that --
Justice Sotomayor: All right. So that -- that's my question to you. If the process provided by the government's regulations are not satisfactory, can't the noncitizen do what you did here, just get habeas review, and why wouldn't that be enough?
Paul W. Hughes: Your Honor, I think that this goes to the very purpose of constitutional avoidance, as Justice Scalia explained to the Court in Clark v. Martinez, which is to say, rather than set up a structure where the court 1 has -- courts have to do individualized determinations as to whether or not detention is constitutionally excessive in individual cases, if there's a plausible alternative reading -- and we think our reading is absolutely plausible -- it makes the most sense to infer that Congress chose a statutory structure that was not going to lead to routine and predictable constitutional violations in at least some case. Now my friend on the other side says it might not be in most of the cases, but Justice Scalia addressed that in Clark v. Martinez and said, if there's any predictable range of cases that leads to unconstitutional outcomes, that's pretty good evidence that's not the proper construction of the statute if there's a plausible alternative.
Justice Sotomayor: One of the amici here set out why they thought the administrative review process under 1231 is not adequate. Are you accepting the arguments of that amici?
Paul W. Hughes: Yes, Your Honor. I think you may be referring to the ACLU. And --
Justice Sotomayor: Yes.
Paul W. Hughes: -- it's exactly the arguments that this Court in Zadvydas adopted, which is to say there's no neutral arbitrator. One of the de minimis requirements of due process is before prolonged deprivation of liberty having a neutral arbiter. And what the Court in Zadvydas said is it wouldn't be enough for a deprivation of property if there was a non-reviewable administrative agency that makes a -- a property deprivation, and the same rules should govern in fundamental liberty interests.
Justice Sotomayor: But answer Justice Thomas's question. Why wouldn't the habeas proceeding be enough to give you that review?
Paul W. Hughes: Well, again, it goes back to the constitutional avoidance principle. Even if there is an option to vindicate the constitutional rights, here, we're addressing what's the proper construction and interplay of 1226 and 1231. And given that we believe that this is very plausibly read as being in 1226, the constitutional avoidance doctrine in -- informs us that we shouldn't select the construction of 1 the statute that is going to lead to grave constitutional concerns and the need to bring individualized habeas actions.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan.
Justice Kagan: Mr. Hughes, just on the constitutional point again, is -- is your understanding -- I guess I'm a little bit confused as to what the government is -- is saying about Zadvydas and -- and -- and how it serves as a backdrop. Is -- is your understanding that, once six months passes, all of the people in your clients' position will be able to get hearings under Zadvydas?
Paul W. Hughes: No, Your Honor, it's not my understanding, and it's actually quite the contrary. When these individualized claims are brought, the government resists them. So it's not the case that they get individualized hearings under -- under Zadvydas, no.
Justice Kagan: Well, why is that? What -- what grounds does the government resist them on? On -- on -- on the view that removal is -- is -- that they haven't satisfied the 1 standard of -- of reasonable foreseeability of removal? Is that the idea?
Paul W. Hughes: That is the argument that the government advances and then the lower -- the courts have to address that argument on an as-applied basis, yes, Your Honor.
Justice Kagan: I mean, could you give me a little bit more on that? Like, what does the government say and what have courts been holding with respect to this?
Paul W. Hughes: Your Honor, there's mixed results in the lower courts, that they -- they are a bit all over the map as to what they think the standard for Zadvydas would be in this context. The government makes the argument that if there are proceedings ongoing, the whole -- there is not reasonable foreseeability that is satisfied for that due process test. The -- the -- the noncitizens routinely make the argument that, because of the prolonged nature, regardless of that foreseeability, there still needs to be an individualized detention. My understanding is that the district 1 courts are -- are somewhat mixed on this question. And many courts have found, notwithstanding the government's contrary argument, that there's very serious due process concerns that require a -- a hearing, an individualized hearing, in those circumstances over the government's objection to that principle.
Justice Kagan: But the government's argument, as it goes through these cases one by one by one, is that -- is that aliens who are in withholding proceedings even after six months do not get Zadvydas hearings because, in that case, detention -- in that case, removal is still foreseeable?
Paul W. Hughes: Yes, Your Honor, that's correct.
Justice Kagan: Okay. That's all. Thank you.
Chief Justice Roberts: Justice Gorsuch.
Justice Gorsuch: Good morning, Mr. Hughes. One of the government's main structural arguments in response to your 1226 submission is that Congress placed both the provisions 1 governing restatement of removal orders and provisions governing withholding orders in 1231, not 1226. What -- what do you say to that?
Paul W. Hughes: Thank you, Your Honor. So, to begin with the reinstatement provision, that's (a)(5), I think it's understandable that it's in Section 1231 because, as we've explained, in more than 98 percent of cases, the individual does go immediately to Section 1231 detention and is promptly removed from the United States. This case is about the very rare exception when individuals have satisfied a reasonable fear interview, which is -- which is a very high threshold under the standard.
Justice Gorsuch: I understand that. But, again, both the withholding as well as the reinstatement are in 1231. So you're -- you're just saying, well, I'm -- I want to talk about withholding. But that's in 1231 too. So what -- what -- what do we do about that?
Paul W. Hughes: Your Honor, I think one way to think about withholding -- and this goes 1 to the hypothetical that I believe Justice Kagan posed earlier -- is it's very normal for individuals in removal proceedings to concede their removability, and -- and not in reinstatement cases, but just in normal removal proceedings, to concede everything about removability and that the removal -- to only advance a withholding claim. That happens day in and day out in the immigration courts, and that's non-controversially subject to 1226 detention. These cases look exactly like that, and they fit well within the category of 1226, of protracted proceedings that make the determination as to whether the INA --
Justice Gorsuch: I -- I -- I understand all of that, and I'm sorry to interrupt, but what -- what rational explanation is there for Congress to have placed that in 1231 then?
Paul W. Hughes: Well, in -- because Congress was placing where individuals are sent in the -- the 1231(b). With (b)(2), you have the list of countries and in (b)(3) the -- the -- the list of countries for withholding where 1 the individual could not be sent. I think that's the rational basis on which this was structurally placed in 1231. But I don't think that bears on the detention question when we know that individuals in outside reinstatement proceedings who only have withholding claims are uncontroversially subject to 1226 detention, as -- as I think my colleague earlier agreed.
Justice Gorsuch: What do we do about the fact that we don't normally think of agency action becoming final just because a party doesn't press a request for additional agency action? This administrative finality argument all depends on the absence of any request for further agency action from an individual. That seems an unusual way to define "agency finality." Can you help me with that?
Paul W. Hughes: Yes, Your Honor. And, again, to start with, and I hate to keep repeating, but I -- we don't think you get to finality. But -- but, if you do get to finality, 1 you know, the key way to think of it is the reinstatement process, when does that conclude, and we think that when it's actually executable is a natural way to think of administrative finality. And -- and, again, the government's position, I think, has real problems here because, as they articulated earlier, they think that "finality" means two different things in this same particular statutory scheme. They agree that there's --
Justice Gorsuch: Right. Yeah, I got that argument. Thank you, Mr. Hughes. My time's expired. I'm sorry.
Paul W. Hughes: Thank you.
Chief Justice Roberts: Justice Kavanaugh.
Justice Kavanaugh: Thank you. And good morning, Mr. Hughes. Looking at the language of 1226, it, of course, says "pending a decision on whether the alien is to be removed." And then, when you go to 1231, it makes clear that that decision on whether the alien is to be removed has really already been made automatically in the case of someone who 1 reenters the country illegally because the prior order of removal is reinstated. So I know we're -- I'm covering ground that's been covered, but just trying to make sense of the precise text of these two provisions. It gets difficult to say that there's a decision pending on whether the alien is to be removed when the statute itself says they are to be removed. "Shall be removed" is the language of 1231. Can you help me on that?
Paul W. Hughes: Yes, Your Honor. Two responses. First, this -- that argument rests on the government separating out the whether and the where. And I think, for reasons the Court well understands, we don't think it's anywhere near plausible to say you can decide the whether question under 1226. It's the where question, and 98 percent of the time it's going to be nowhere. That just is not actually deciding the whether question under 1226. But the second point, to -- to address the reinstatement provision in (a)(5), this goes back to the point I was earlier making. We appreciate that that language reads absolute in 1 its terms, and that's why it has to be reconciled with withholding, because, if the Court read that to its absolute terms, that would mean it -- it would nullify withholding proceedings for individuals in this category. It would mean that individuals could immediately be removed. The government agrees that that's not a plausible reading of the -- the statutory text given the -- the -- the U.S. obligations here. And so the way that it gets reconciled is to appreciate the process of reinstatement and when that reinstatement can be deemed final, thus triggering the obligations or the rights under the -- the (a)(5) reinstatement process. That, we think, is most naturally understood to be when these withholding proceedings conclude, resulting in an order that is executable and administratively final.
Justice Kavanaugh: And these provisions, are they part of the '96 Act?
Paul W. Hughes: Yes, Your Honor, I believe -- I believe they are. The withholding provisions predate that, but -- but the provisions you're referencing, yes, Your Honor.
Justice Kavanaugh: Yeah. And the '96 Act, as -- as we discuss often, was, of course, meant to be very stringent, so it's not surprising that the language of (a)(5)'s worded that way. One of your main responses -- and you were talking about this with Justice Kagan -- is going past the -- the six-month Zadvydas period. I guess my question is, why don't -- there are -- there are cases pending in this Court on that question, the constitutional Zadvydas due process point. Isn't that the better way to analyze this, rather than reconfiguring the statute to get to that result?
Paul W. Hughes: Well, Your Honor, we don't think this requires any reconfiguration of the statute at all. We think we're naturally within 1226. And as for 1231, we think the government has a substantial problem with explaining how the removal period, which is the time during which the government shall remove, can begin and end long before the government has authority to remove anyone anywhere. So we certainly don't ask for any 1 reconfiguration of the statutes. We just want 1226(a) and 1231 applied by their terms.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett.
Justice Barrett: Counsel, when you were answering Justice Kagan's questions and then again when you were answering Justice Gorsuch, you pointed out that you thought it would be anomalous for those noncitizens who concede removability and litigate only withholding claims to remain within 1226, whereas those who have reinstated orders and litigate withholding-only claims would be treated under 1231. And I just want to make sure that I'm tracking that because the government says the guide -- the dividing line here is once a final order of removal has been entered. And in the normal case, you know, the mine run of cases in which withholding claims are litigated, as you point out, those are in the removal proceedings themself. So, under the government's view, it would make sense that those were under 1226, 1 rather than 1231, because, in that situation, there is no final order of removal. So explain to me what the anomaly is.
Paul W. Hughes: Well, Your Honor, the -- the -- the explanation was why (b)(3) reasonably exists in 1231 and why we would draw that inference, because, if we were, then that category of cases, I think, would -- would come out differently. I appreciate that that is the government's rule, and -- and that's a rule that -- that does not fare well for us. Our rule, of course, is quite different. It turns on whether or not the INA authorized removal of the individual, and that tracks directly from the text of 1226 and 1231. We think that's the rule the Court should adopt in construing these statutes.
Justice Barrett: Okay. And let me ask you this. So we're comparing here two statutes, 1226 and 1231, and -- and I'm trying to figure out how much of the scheme in 1226 that's advantageous in terms of offering a bond hearing to the noncitizen is regulatory and how much is statutory, because, in your brief on 1 page 7, you say, "After an initial custody determination by DHS, Congress determined that a noncitizen is entitled to a bond hearing before an IJ." But, as support for that, you cite a regulation, not a statutory provision. And as far as I can tell, in 1226 itself, the bond hearing looks discretionary because it says that the alien may be released on bond. So why is a bond hearing an entitlement under the statute as opposed to the regulations? And why would it have to be before an IJ, rather than an official from ICE, as a matter of the statute?
Paul W. Hughes: Well, thank you, Your Honor. 1226(a)(2), of course, the statute directly requires a -- a bond hearing where there is not the -- the bond carrying requirements in 1231. So it's a direct distinction between the detention provisions. Your Honor, of course, is correct that -- that it being squarely assigned to an IJ has been done by matter of regulation, 8 C.F.R. 236.1(b). That's certainly the way that this has been implemented. I think there may be a 1 reasonable argument that the bond requirement carries with it the requirement of a neutral arbitrator. But, regardless, that is how DHS for decades has implemented this. So the legal structure that comes to the Court is a statute that requires the bond and the -- the implementing regulations that put that before a neutral immigration judge.
Justice Barrett: Thank you, counsel.
Chief Justice Roberts: A minute to wrap up, Mr. Hughes.
Paul W. Hughes: Thank you, Your Honor. We believe that the language of 1226 here fits perfectly. This is absolutely individuals who are in detention pending a decision on whether the alien is to be removed from the United States. Again, we think the government's position has a very critical flaw, that they take the position the removal period begins and almost always ends before they can remove the individual anywhere. And we believe that (a)(1)(A) is -- is the critical provision here because it defines the removal period as the time during which the 1 government must have this authority. And it also excepts from the removal period other provisions in -- in 1231 when the government doesn't have authority to remove, which includes the withholding provision. That's squarely the case here. Finally, we've certainly not retracted in any -- our argument has been consistent throughout this case. The government's incorrect in saying we've somehow backed away from our argument. It has always been whether or not the INA authorizes removal of the individual. It's what we've said in the court of appeals, in the district court, and consistently throughout. Thank you, Your Honor.
Chief Justice Roberts: Thank you, counsel. Mr. Suri, you have three minutes for rebuttal. REBUTTAL ARGUMENT OF VIVEK SURI ON BEHALF OF THE PETITIONERS
Vivek Suri: Mr. Chief Justice, if we take a fair view of this case, we've got some strong arguments under the text of Section 1231, 1 particularly the title, "Detention and Removal of Aliens Who Have Been Ordered Removed." They've got some reasonable arguments under Section 1226. How can you say that someone -- that there's been a decision about whether to remove someone when it's not clear that there's any country available? So I'd like to talk in this rebuttal about a few tiebreakers you might use to side with 1231 over 1226. The first is that even with respect to their arguments in 1226, all they've been able to show is that those provisions are ambiguous. You can read those provisions to refer to practicalities of removal, or you can read it to refer to the legal decision, i.e., the order of removal itself. The phrases in Section 1231, by contrast, are fairly clear. "Ordered removed" means ordered removed. And these aliens have certainly been ordered removed. So, in those circumstances, what the Court should do is use the clarity of Section 1231 to resolve the ambiguity in 1226. It shouldn't use the alleged ambiguity in 1226 1 to override the clarity of 1231. The second tiebreaker is the structure of the statute. Congress put the removal -- reinstatement of removal provision in Section 1231. It also put the withholding provision in Section 1231. So, if you find yourself thinking that the text of 1226 and 1231 pull in opposite directions, the structure of the statute tells you that Section 1231 should win out here. The third is -- the third tiebreaker is this Court's precedent. In order for Respondents to prevail, they have to adopt a definition of "administrative finality" that's directly contrary to this Court's decision just last term in Nasrallah. They have to say that a CAT or withholding order does reset the finality of a removal order, indeed, that a mere request for such protection resets the finality. We don't -- that's directly contrary to what the Court said, which is that a CAT order does not disturb the validity of a final order of removal. The other relevant precedent is this Court's decision in Zadvydas. The aliens in 1 Zadvydas find themselves in precisely the same circumstance that Respondents are talking about here. The government's looking around for some country to which it can remove them, and there may be no such country available. The Court didn't say in those circumstances, oh, the decision about whether to remove these aliens hasn't been made, so we're under 1226. It said those aliens were under 1231, and it provided certain procedural protections while they remained there. That's exactly what we ask the Court to do here. Thank you.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:05 a.m., the case was submitted.)