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tv   Public Affairs Events  CSPAN  December 21, 2016 6:47pm-8:01pm EST

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yes. honestly, the polling industry goes through this, as you recall in 2012 it's more that the republicans pollsters had got the races wrong if one side of the other gets it wrong we don't like it if anyone gets it wrong because our job is to get it right. and we did do a self reflection in the industry after that. it wasn't just republican thing. it was a polling industry. you know some people may not believe this, but every pollster out there whether democrat or republican we want to try to get this right. one of the challenges for
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industry is a good poll tries to eliminate bias. and in particular bias and who is being selected to take the poll. it was a heck of a lot easier in the good old days of ten or 20 years ago when the predominant communication device of the american public was the landline. as obviously gotten a lot more complicated now. a lot more diverse. i think polling still has a role, it is important to know what people think, but i think that just restarting two, four, six years six years ago. what is going to be the best can also let's not forget the most efficient and effective way to truly get a random sample of people that ensures that someone if you're talking about a
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national poll has a much chance of being contacted if they live in anchorage alaska or marilyn. in the good old days when my mentor and pete friend peter hart was doing this, i want invite various peter you by saying how long ago that was, a lot lot of polls were done door to door, face-to-face. and clearly if you think about trying to reach people that is probably quote unquote the best way of conducting research. even if you don't have a landline someone can get you. and reach out out to you have to live somewhere. the issue with that of course is that it takes, when i look back at the polls at the firm i wear consider state-of-the-art, typical statewide survey would take 30 days.
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because you have to if bob is not home you have to go go to talk to someone else and maybe they're not home and obviously it's a time-consuming process. just again, number one, polling needs to be accurate. in these to be effective, it needs to be efficient. a 30 day field. or 15 days or 20 days just is not practical given where we are now in society. again, we have technology, i just sent like the line from the six my dell or man. we have the technology we just need to figure out what the new polling world looks like. maybe it's a blend of new technologies or maybe something else. we are also striving to figure out how to do her job better.
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>> on behalf of everyone here, you are one of the nation's premier pollster and were grateful for you to be here today. thank you. [applause] >> we are moving to the reception upstairs, thank you. >> this week on c-span two, book tv in prime time. tonight we look up books about american history. beginning at 8:00 p.m. eastern is the general versus the president, macarthur and truman at the brink of nuclear war. then the black calhoun's from silver war to civil rights with one african-american family. also "the winter fortress", how to sabotage hitler's atomic bomb. and then "most blessed of the patriarchs". to be and then "most blessed of the patriarchs". look to be in prime time each night on c-span2 starting at 8:00 p.m. eastern. >> this weekend on american
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history tv on c-span three, saturday afternoon just before five eastern, architectural historian talks about the construction of the brooklyn bridge. why manhattan needed the bridge and how transportation in the city changed at the turn of the 20 century. >> when the brooklyn bridge was open it to not put the fairies out of business. the the fairies were running at capacity. all through the 1880s and 90s. by the 1890s the city of brooklyn had reached 1 million people. >> on lectures in history. >> and that's the interesting thing about country music, that it is the music of poor white people, people who are privileged to be white and we'll talk about that in a second. also people who are underprivileged in terms of their class identity and economic opportunities.
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>> and then the emerging definition of a whiteness and blackness in colonial america and how it impacted the origins of country music. then, sunday afternoon afternoon at 4:00 p.m. unreal america,. >> a cautious congress, budget cutbacks in state and local administrative problems created evidence that this crusade may be slowed. or worse, may level often paid. this was the climate, the land, and the unfinished test that face lyndon johnson on the first of december, 1966. the film the president documents the final month of the year of president lyndon b. johnson, his meeting with mexico's pride president, awarding the medal of honor and celebrating the holidays with his family at his texas ranch. at eight p.m., on the presidency william hazel grove, author of matter president the secret president of edith wilson. she was woodrow wilson's second
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wife. for a complete american history tv schedule, go to c-span.org. >> at the presidential inauguration of donald trump is a friday, january 20. c-span will have live coverage of the day's events and ceremonies. watch ceremonies. watch live on c-span and c-span.org and listen live on the free c-span radio app. >> coming up next on c-span two, a a supreme court oral argument on whether immigrants facing deportation can be detained longer than six months without a
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bail hearing. this case is jennings versus rodrigues. >> will hear argument this morning in case 151204, jennings versus rodriguez. >> mr. chief justice and the court. congress provided extensive substantive and procedural protections whom the government issues to remove. they adjust the real concerns about recidivism and flight risk by providing for mandatory for criminal aliens and aliens arriving at her shorts. the ninth circuit undid that legislative balance invoking principles of balance to require the government to release the aliens less a government can prove every six months that detention remains necessary. the ninth circuit's decision is a serious misuse of the constitutional avoidance. with
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respect to arriving aliens there's no constitutional problem to avoid. even the ninth circuit recognized the statute and the vast majority of applications in any concerns about outlier cases can be addressed. with respect to criminal aliens the text of the statue forecloses the ninth circuit approach and the statute is constitution is written under this court's decision into more. the net result of the ninth circuit one size fits all rule is a regime at odds that congress enacted. it undermines dhs enforcement priorities and create incentives for aliens to delay proceedings. >> aliens don't fit in either of the categories that you discuss, they are not entrance and they are not people who have committed qualifying criminal -- so they are 25 a people. >> that's right, so they have
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had bond hearings are they often have had bond hearings. so were talking about individuals who had bond hearings or were unable to post bond. >> what would be the constitutional entitlement to keeping those people if they are not flight risk or a risk to the safety of the country. >> or others however you wanted to define that danger element. was a constitutionally tile entitlement arbitrarily to keep someone. >> ruth respect to the 1225 a one that there were talking about those are individuals who had bond hearings and had them tonight or what had been unable to post bond. the requirement that were concerned about is the burden of proof to show by clear and convincing evidence every six months that they are not a flight risk or not likely to recidivate.
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>> clarify two things. one, what have the people in that category done that make them subject to removal and to does the government look at the bond specification as discretionary? >> your honor, the government's practice with the letter question is to provide bond hearings consistent with the statute is my understanding. those are people who had bond hearings and we provide them there. i'm sorry your first question? >> so they may be individuals who have entered illegally but have not committed the kinds of crimes that make them admissible under 1182 or deportable under that would suggest you 21226c
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for the mandatory detention. so again for those we are objecting principally to the clear and convincing evidence standard which we think the ninth circuit had no basis for adopting. >> and bail hearings it's clear and convincing to show there is a public danger but only by a preponderance of the evidence to show flight risk. >> it does vary by this have a crime. in cases it's the alien it's a criminal who has to show by a preponderance that he's not likely to recidivate or be a flight risk. in some cases the government bears the burden. >> i think not for flight risk. >> that may be right. >> a clarifying question, for for an alien who is found in the united states illegally, has not
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been admitted, are they held under 1225b, or 1226 hey? >> if they are not detained within 100 miles of the border or within 14 days they have been there longer than those two things they are under 121226 a and not 1226 c. >> so i don't know how many of these would exist, but an alien who has resided within 14 miles of the border, how many miles? >> 100 miles from the border. >> that's possible who has been there for 20 years, they would still be held under 1225? >> they would be held under 12 to six a. if they hadn't committed other crimes and were not held under
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1226c. >> i'm assuming no criminal. timeout aliens who came into the united states illegally without being admitted who takes up residence 50 miles from the border. >> they would be held under 1226 a. and this is. >> let me finish, earlier you said you are objecting to the burden of proof. >> yes, your your honor. >> are you objecting to the concept and for prolonged detention without reason, is not appropriate for these aliens question that. >> we believe. >> and not being a flight risk or danger. >> whatever due process rights they have are met by the statutory scheme which gives them an initial bond hearing and
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then allows them to seek every determination. >> accept that additional regulation says that the length of the detention is not one of the factors that justifies reconsideration. >> that's correct. >> so if these are people who have been here for decades let's say, don't you think due process would require some periodic review to ensure these people are properly being held? >> your honor we don't think that. but the ninth circuit went beyond the and imposed a clear and convincing evidence standard which we think does materially change the government's burden and we do think the initial bond hearing in conjunction with the opportunity to bring forth changed circumstances. >> except you don't consider the length of detention. that's what
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a judge does and bail hearings and in almost every other detention which is at a certain point your calculus changes, the balance changes when the detention becomes unreasonable. >> so we do think that the way to think about the case for the people who are not in that category was that what the court said and i think this is the focus is that the purpose of detention is being served in the government is really reasonably quickly to accomplish removal and so were not in a situation where the end of the detention can be observed then absence very unusual circumstances, that is constitutional. we do think the scheme that we had in place with 1226 a individuals is constitutional.
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>> i was to ship to something else. >> i was going to shift to something else. let's shift to 1226c. and not focus on the statute so much but focus on the constitutional question. i think your brief indicates that you think there are some constitutional bounds. i would like you to talk to me about what those constitutional bounds are and when a judge would find them. >> we think they constitutional boundaries what justice kennedy step forth into muir. as he said there they are there to be an unreasonable delay by the governor government by pursuing deportation proceedings it could be necessary to inquire about the purpose of detention is not to facilitate deportation but for some other reason. it seems seems to us that the analysis that the court would undertake
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is has a been some sort of unusual situation or misconduct on the part of the government or delay that suggest the purpose of detention was not to effectuate removal. >> what happens if you can't point to any particular evidence of government misconduct but you're in a situation where the government has very big backlogs and everything is taking a long time. so the average would be that the government wouldn't make a decision for three years. could the court simply say will three years is too long. it doesn't matter what kind of evidence you have three years is too long. >> i think our position that situation would be that as long as the government was diligently , if it were 20 years we could go on and that might be a concern that we are no longer tried effectuate removal.
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we could take an argument in three years but that's not the situation we have. >> but you say right there you said 20 years. now as soon as you utter words like that you are outside and in conceding i think that were says the eg may release an alien described in paragraph one, these are the criminal once. >> this is 1226, two. >> the word strong is only if. now you're saying well it's not really only it. there are exceptional circumstances where, he's been here for 20 years and we haven't started a removal proceeding or let's say he has an emergency operation and has to be in the hospital. we all can exercise our wonderful legal imaginations and think of weird imaginations were
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only if is not really only if. >> i want to be clear, i don't think the attorney general has discretion to release in the situation i was just discussing. i think it's a constitutional ricard acquirements. due process would be implicated at that point. not saying that at some point the attorney general has discretion to release. >> is says only if you go to the witness program but my point was and you did it accidentally, but on purpose you said will 20 years would be different. >> to be clear i did it as a matter of constitutional law. >> but why? why not just say like all many things in the low words like any, or only if are always interpreted in light of unusual circumstances, not being absolute and you get something
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unusual. not not why not do that rather than appeal to the constitution. that might be a picky point. >> justice kagan kagan had asked me to set aside the statute. we really think that congress this was a deliberate categorical judgment by congress based on experience overlong number of years or congress had tried to deal with the concerns about recidivism and flight through a number of different mechanisms and what congress found was that it was very hard to predict tenet have very serious consequences and congress offered a judgment. >> do you suppose it's an area where your's safety val of haiti's corpus might come into play? >> absolutely. i think that goes into the interpretations of the arriving aliens. they legislating against the backdrop which provides what
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justice kagan had identified. and therefore with absolute text and that's is a limit to the exceptions that i think is pressing. >> if i could go back to the constitutional point. if you put it more aside i think would all look at our precedent and say, you cannot just lock people up without any finding of dangerousness without any finding a flight risk for an indefinite period of time and not run into due process. now you have to move your but that was based on the assumption that it was going to be a brief time, it was a based on statistics that have proved to be inaccurate. and you can do it through proceedings but to write the constitution itself does not set an outer boundary in the ways that we have consistently required and civil commitments cases. >> you have packed a lot in there and i'd like to take on a
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number of things there. the answer to your last question is, i don't think it's the focus on the amount of time that it's really the way the court should look at it and this i think was the insight, the amount of time increases in part precisely because as indicated congress has provided a substantial number of protections for individuals. the have a right to a lawyer at at their own expense and interpreter and a right to have evidence and use a to get evidence. they can appeal, but with that process comes time. a focus on just the length of time without the reasons for the delay and without looking for the fact that aliens routinely file for continuances and to impose this is really a mistake. respect to do more i would like to address your concern on a number of situations. you're right that the statistics
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we provide were inaccurate we apologize. >> i think it was partly the statistics that were provided and partly what the courts did with them. doesn't really matter who was to blame her who wasn't. i was just suggesting that in fact it says the average is five months but it turns out the averages a little bit more like a year. >> the reason i think the more rested on two pillars, first was the judgment that fight/flight risk and recidivism are two problems and that their bad at predicting and therefore congress could make the categorical judgment in this area of immigration law that mandatory detention was likely and the purpose of the detention was still being served and to effectually remove it and it was not going to be permanent or indefinite. those are true. it is true that this court assumed incorrectly that the
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length of detention was five and a half months. but in demure itself the alien had been detained and the court was sending that individual back for a hearing and a bia appeal. so under the court's assumption that there would be five and half months tacked on were talking about it detention for a year. with respect respect to time limits they're not trivial. these are serious matters and we recognize that. the current median times for the demure figure is around 233 days but has gone from 7 - 9 months. >> so when is it when it's not the alien's fault? you seem to suggest that budgetary matters or personnel matters is what is inflicting the delay and that's okay.
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you said 20 years as the endpoint, but given that we have it to process right not to be held indefinitely, even though it may have a distance point of release somewhere in an unknown time because the government now i understand if an alien ask for adjournment the dia judges who are overbooked are sometimes taking months to give them another date. at what point does the government's behavior come into this analysis? >> i think the governments. >> intentional or not, i would assume that if the government was delay because you wanted to you would say that's unconstitutional. >> absolutely. >> at what point does indefinite with a lengthy, far-off detention date become
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unconstitutional? >> we don't think the date itself is what makes it unconstitutional. but to be clear. >> know what makes it unconstitutional in my mind is the unreasonable delay or detention. >> so couple of points. first of all, it is not our view that most of the days were talking about our situations that are resulting for government resource problems or things of that nature. the record indicates that aliens routinely sit continuances and they do that for good reason which is to build the record, what most of the aliens are seeking is discovered aggression or release and if they're seeking that than they are going to want to build the record. i don't think the record is that most of the delay is lack of immigration judges and indeed
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demure expedites the proceedings that involved detained aliens. that is a government policy. >> assuming there is a constitutional limit of the type that is been discussed, do you think that can be addressed in a class-action? or can that be only addressed individually? >> we think it's the latter. we think that's a major flaw of the decision. and adopted a classwide rigid rule that applies to aliens the matter what is the cause of the delay matter whether their criminal alien or arriving alien. the matter of their seeking discretion or relief or not. that one-size-fits-all approach is not the right way. the way to do it is an individual challenges through proceedings. >> i don't quite understand that. why couldn't a court, whether
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the ninth circuit for this court in review of the ninth circuit say, here the constitutional guidelines, it might not be a one-size-fits-all, might might be a presumptive limit but the ability to go beyond that individual cases. but to set those guidepost and then let the individual determinations take place. >> in theory the short answer is the due process clause does not usually permit that kind of broad-based approach. it doesn't take cognizance of the various differences between the aliens on the ground. for example. >> when it be better to set guidepost that everybody in the country would know to follow? rather than have one suit cap up here and another and another place. and everybody would be treated differently, that that does not seem like a good immigration system. >> the first thing i would say
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is the one thing we know shouldn't be the case is what the ninth circuit has done which is the opposite which is to apply single standards everybody regardless of the cause of the delay. this gets at the very concern that the court that dissent to the majority in demure highlighted which is that kind of rigid rule creates an incentive for aileen to delay and we would not adopt -- >> i wasn't suggesting a rule quite as rigid as that. i was suggest that the courts pick up some of your language in your brief and say that the detention has to serve the purpose for which it is meant and presumptively that is, pick a number, nine months, one year, six months, whatever, something reasonable but only presumptively., something reasonable but only presumptively.
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there are some exceptional circumstance that could be extended. >> i think it would be within the court's power to do it. we don't think that's the way we would approach it. >> you do or you don't? >> we do not advise. >> we don't think the court should do it, that with the court has generally done in a due process situation is has applied challenges and we think that's a sensible way. >> in a class-action the court has to grant or deny relief. what would be the relief of the court says were not going to say what the situation is going to be for any members of the class but here are the thoughts about how individual determination should be made. >> that is why we don't think that's what the court should do. to be clear the court has the power to give guidance but we don't think that's the approach most consistent with the due process clause or the way to think about those categories of
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cases. >> we do suggest in our brief that there are indicators, 90% of the hearings are done within 14 months and 90% are done with a 19 months. what i think those weird offer to the court not as indications the due process clause has been violated but those situations one might reasonably, in an as applied challenge take advantage and take justice kennedy's opinion on the standard into the kind of search and inquiry we would think of. >> when we think 14 months or 19 months is a and a reason it is a reasonable time to detain.
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>> what i'm trying to suggest is that is part impartial of an overall scheme that offers tremendous process to the individual alien. part of the reason. >> but the process with at least respect to 1226 be is to ensure the person is not a flight risk or danger. >> it's congresses judgment that either there is a flight risk and a risk of recidivism and it's very hard to predict those. >> have a couple of questions i would like task. this is a complicated statute. >> i'll give you extra time to answer questions. were talking about three categories, the first is those on the border, that's mostly 1225, i don't see any words that would prevent interpreting statute from saying you have a bail hearing after six months and whatever standards, i'm not
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going with those, i'll put that in your mic is you're going to tell me the words in a minute. the more important part is the criminal parts. there i have divided my mind into three stages. stage i, the one, the person is released from jail in the statute says the attorney general will pick him up. and then there is a time where the he says i have the right to stay in the united states and the ag says no, you don't. and during that time we have the oas language. and then then we have the time where there's a final removal and there's a 90 day removal order. and those are 90 days you connected on the statue. statue. it's definite. then, the removal. ends and then on like you i don't think you can overrule
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that. let's start with the criminal. let's look at that statute. as you would like to interpreted, during that first time, remember the second time with you, the 90 days the third time you have to let him go after six months so were talking about the first. take my word for it, i think it's at six months now i might be wrong, i'm often wrong about what i think i said. so we are in the first parts, now in that first part it's an odd statute that can say you we can keep you for two years or three, or for, you've just been out of jail your term is over, your punishment is over but you have four more years of punishment while we tried to get to stage ii which is called the
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removal order. that's what's bothering me. it is bothering bothering me that is a lawyer produces an odd statute. as a person who tries to interpret the constitution i say what happened to the notion that you do let people out on bail when in fact they are not a flight risk. how how can they be punished for four more years. maybe it's the constitution, maybe they're so way around the only if language but the concern is the same. so now all my questions are out there and so do it you can. >> i will try to be brief because i'm cognizant of the chief justice generosity. i think it precludes is it at both stages. on page 156 a of the a of the appendix to the petition the statute starts out 1226 a that the illy may be arrested and detained pending a decision on whether they need to be
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removed. >> may. it does say made their. >> but then in subsection c of this and pending such decisions it attorney general may, it is says except first subsection c and that is one that says on it vigorously shall take into custody and release. >> c is the criminal. >> i i agree with that. >> thank you, i reserve the balance of my time. >> thank you counsel. >> thank you mr. chief justice. i think the dispute between the parties is narrower than it seems based on what my friend has just said. we agree that length by itself doesn't make this detention unconstitutional. we agreed there doesn't need to be a hard hard cap on detention, were talking about the need for an inquiry, the need for a hearing that is individualized rather than a categorical
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presumption to someone who is a danger flight risk. >> are you making a statutory argument? the ninth circuit's decision was based on an interpretation of the statute wasn't it? >> it? >> yes. >> are you making a statutory argument or constitutional arguments. >> both. i think the dispute is narrower. the primary focuses on whether the mechanism for implementing whether constitutional or statutory constraint or it it could be -- >> i understand that but it makes a difference whether were interpreting the statute or the constitution. >> on the language of the statute i think you have a tough argument. >> your honor, we can see after 1226c their interpretation is
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not complete and unreasonable. >> is a constitutional argument constitutional void minutes isn't just we don't think we can interpret it this way but we don't have the guts to say it's unconstitutional. so we'll put two things together say constitutional avoidance is what it means. >> understood your under, we think the constitutional's statutory interpretation's statutory interpretation is no less plausible in divided. you have a 90 day detention. followed by the time of release and the exception. >> what you do with only if? >> it applies to only the initial detention and people can be released immediately after being picked up if they're in the witness protection program but it doesn't speak clearly about when detention becomes prolonged. the statute says says you can detain beyond the removal time but it wasn't clear enough to authorize long-term
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detention. >> the term on the may it gave him permission, is he just pointed out there is may, may, that in criminal thought not talking about the border, there's a strong argument but there it says attorney general may release an alien described in paragraph one only if the witness protection program and he says how to get around that one. >> i only want to say one more thing about the statute because i don't want to belabor the point but five or four months after the decision congress passed the patriot act. the petri act clearly authorized long-term detention and six-month intervals. it didn't not only posterior cases but also in pending cases.
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that's cases like this one. so subsection a7 of that statute authorizes long-term detention, six-month intervals while the cases pending. authorizes substitute review over whether should continue and whether certification remains value but only in national security cases. and that provision that specifically authorizes long-term detention is limited to national security cases and pending cases makes the government's interpretation hard to make sense. in their view they have more authority to detain people with simple possession offenses or petty theft than they do of people who are accused of terrorism. they even have more authority in terrorism cases under 1226c the may have under the patriot act that congress gave them four months after. >> racing 122680, the patriot act provision makes the government's interpretation of 1226c super bowl us. >> to terrorism cases.
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to those where they are inadmissible on terrorism gray they already had it more authority in 1996. >> those are quite noticeable differences between the two provisions. i don't how far how far this argument can go. for one thing, the list in 1226 a, a, a, three, a, i listed six categories for of those are not included in the patriot act provision. >> that is true, but the terrorism round. >> in the patriot act meant to focus on terrorism. >> under 1226c1, the attorney general shall take into custody any alien who -- is inadmissible
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or deportable. so under 1226 a the attorney general, a a one, the attorney general what is a, a, a, three the attorney general has reasonable grounds to believe. it's a different standard. >> is it admissible just to mean that they believe weather not as been charged. we have to establish that there is a serious constitutional problem, there's no question about that. >> can i ask about your interpretation on 122 five. that's where it says the alien shall be detained for on the one provision says for further consideration and the other says for removal proceeding and you say that applies only until the proceeding starts.
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what applies after that in your view and where would we find it in the statute? >> is still 26 a is. >> is a very out interpretation firs proceeding. if i tell my children are going to visit them for christmas it doesn't mean i have have to leave on christmas eve. >> sometimes words read that way, other times four means for the purpose of. the way you know that this provision is two ways. first, if you are denied when congress wrote the statute they wrote the word pending rather than for, into a different subsection and that's a subsection for people who lose they are not in the class. our classes only those who are found to have a significant possibility of prevailing in their >> . . .
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>> >> who present themselves at the border the heather of the desert but the statute does not distinguish between the two. >> what happens if they present themselves?
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i have a right to be the united states in u.s.-made air route mistakes respect to me what happens to that person breaks through and they are crossing the desert you get a bond hearing. >> data want to leave i have a right to be here. >> then if you have incredible fear. >> what happens if you are a supporter? in thank you are subject to the parole process the lead jailer to is the one deciding. >> so what language of the statute does the government pointed at you don't get a bond hearing? >> and you can read it for then you can read and for the heather people saw going back to the constitutional
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question fitted is critically important whether the enforcement mechanism is available or instead comes from habeas. that is of the mayor with the legal system and reno from this record that most cannot file a habeas edition >> you mean as of legal matter? the mac as a practical they cannot but those cases take months to decide. the third circuit is the fastest took almost six months is therefore
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prolonged detention but the second problem is the court has never before held day due process right has been vindicated with pretrial detainees why did they get a bond hearing? >> in this day fundamental shift. >> and there is a hearing requirement by due process. and not dependent on filing the habeas position. and with that due process clause requires a hearing whether or not they have a
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lawyer. >> to call a more complex. and with that individualized determination and with that barrier to that at least on behalf of those four years and this court says for example, that a detainee engaged in tactics not entitled to the flight risk determination to be released and then available because of the east against the inquiry because somebody still has to look at some point this is dilatory tactics? >> that seems to be as strong argument against the class action to resolve these arguments the nature
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of the belief depends on the peculiar circumstances. >> i will give the procedural for that the government did not seek that they lost in the ninth circuit they rewrote in the summary judgment they conceded both commonality for purposes of this proceedings and. >> this was based on the interpretation of the statute but you want to affirm the alternative ground that it is unconstitutional side and of how far you can get with that argument if you want to be very strict and is before us to save the ninth circuit interpretation is wrong. >> guess that would be current the way it is litigated. >> is also consistent with
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the ninth circuit is interpreted? we do not have a constitutional issue before us. >> we argued in section one you are correctly did not rule on the constitutional grounds. but everybody in the class is argued to inquiry somebody has to look at the detention to decide if the detention is reasonable that is the argument. many people don't even get a bond said did those who do another 30% don't get out. >> is that a typical remedy to require an increase for every case? i would have thought that you can or cannot be detained with procedural across the board.
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>> the court requires a hearing in that particular case the court has to determine the conditions is lawful. but to consign individual detainee's effectively to close the door. >> said he said the present provisions of 1226a is inadequate response by the ims -- ins is the inadequate process. why greg. >> with t - - 1226a regulations they will holy exclude the criminal convictions close aliens to have been here a long time. >> we do believe that this
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is standard used and for periodic hearings but to be a meaningful hearing there has to be a way i would not even spend one day in jail alone 10 months in jail. i came here at the age of one i don't know anybody in the place i am from so i will be in my case that is the cancellation of removal which is true for more than half of the of mandatory subclass. >> where those arguments not available blacks give mcveigh are if we get everyone on to that statute. >> i know you want to look at 1226c but i am looking
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just that 1226a. >> it is all the class should understood the procedures the only disagreements is the aboard an of proof and the hearings be periodic because sometimes it could be three or four years or seven years so there has to be a review. >> a periodic review of long-term detentions. >> keyword not arguing they have to be at the ninth circuit in this simply the administrative review? >> as the decision maker that justice can eddie said there has to be a decision maker. >> you wouldn't be
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quarreling. >> yes the immigration judges step that is not what exists today as they enter stand it but does not abide to criminal convictions. >> i am trying to concentrate on 1226a what is with the administrative process quick. >> with clear and convincing on the argument but that link the detention to get a new hearing based on the fact but to be clearer well over half of the class to be meaningful relief of the
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conditions of 1226a talk about the writing to say this is everything but. >> so to go back to what we were having earlier if the government was in gauged very quickly and it was days substantial defense pet with a substantial defense does that none of sincerely mean
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it is in verse correlated to have a substantial defense is far more likely they're not davis because they have to go to immigration court to maintain their immigration status so that means they are not in a class of people the congress wanted to mandate the deportation of the means they have less serious crime like a foul in your not eligible from for removal most of that mandatory subclasses eligible. >> accused think that the flight risk so they said
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this is done in bad faith and keeps going on in dog in non that some place on the scale how can you address how something like that can come out with a categorical rule? >> releasing that we're only talking about getting the inquiry. but it does say has to be clear and convincing evidence. >> so if you have the bail hearing in a matter of days. >> and now i am focusing those set to come into the united states that i will
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not go back because i have a right to live here lay are coming and to say i am not going back to have a right to live here then there is no hearing? i don't get that until you get to the bar shall be detained and section 1229 says nothing about the tension to say that we will deter new according to 1229a if they don't have it tomorrow then you say now 1229a just does not been scheduled then you get bail after six months have you tried that?
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if it is correct to do not hold them for years without giving a chance to get back is freedom through a bail hearing if appropriate. i am still stuck on c.
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because you're dealing with hundreds of thousands with it is the administrative organization and if we can interpret the statute to have lots of discussion but i have not heard from you yet i see no way that they don't seem to get a hearing. >> but those people are not in a class. >> so the mother for the 90 days start, shouldn't there be an exception between the time they are released to the time we have the
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hearing? unpunished -- a person should be punished six months i have your argument but what do i do with of language? >> those two thoughts. assuming nobody would accept the way it is interpreted they all said with the six month rule with that due process clause with those in rules where they are needed to create uniformity of practice. >> that is not the constitutional argument? cemetery is day record but they could also be banned. >> but answer the question it is quite obvious what the court thinks where do they
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get this from my? >> maybe they didn't have the courage to the convictions to think it is unconstitutional of constitutional avoidance? >> i will not pretend to understand that they had seen prolonged detention problems for years that mandatory detention of the removal proceedings i had a client for and half years cannot appealing seven years so the court thought we need a system so i would suggest even with due process you need as system the judge doesn't know when to pull off of shelves to look and
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less you have a trigger that allows them to do that. they said in 2011 he was a statutory matter and there should be an inquiry and that we reject uh time period. >> so that night circuit remedy when to allow further . but here the court is requiring relief. this is just the increase so is it is just similar of mass removal is imminent editing error in is a tomb week window you should look
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to see if that flight risk justifies this. is not a cap of the tension at all but you go back to the of question of the third circuit four years later massive disagreement how you count this or that maybe it is cadaver nine months or 12 month window. is a can believe have to file the habeas petition just to get the inquiry of the due process clause so even if it is not as fixed some type of limit to go directly not to try to get the federal court to say could you please conduct?
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>> that looks like drafting the statutes of regulation. >> our job is to read the statute if it is unconstitutional the is our job we cannot just write a different statute. >> it is not that different from what the court did the tribunal process six month is the maximum time you can go to prison here is the administrative global. >> we are devising a constitutional limit. >> so now in the context of deciding the constitutional question? >> i am saying it is just unusual but when year talk
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about administrator bold rule that argument is made on the assumption is unconstitutional. >> for those that have gone into effect, i thought there was the claim because congress specifically authorized prolonged detention but it obviously that is not seem to be persuasive. >> you could have a couple of extra minutes. >> thank you mr. chief justice said that immigration make such a of a big difference if you can second-guess or not second-guess predecessor
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that joy appendix page the person with the non-violent criminal history gets the individualize assessment this is the ethiopian asylum seeker pass the background check and now the deportation officer just chooses not to believe him the judge says she already passed the background check that this person is who he says he is. to be a neutral decision maker whiff the incarceration and that is also part of the due process clause.
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>> i will be brief a sharp point on the page redact to shore up the construction of 1226c there were two fundamental differences with the first is that it allows for a certification with the deputy general but that is not reviewable it is different 1226c with the aim being gets the hearing subject to review. but it actually permits the attorney general to provide either with no likelihood of relief so there was some overlap but they are dealing with very different things with the limited group of
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also to address those statutory arguments for the reasons that justice kennedy said, page 1528, aliens shall be detained and then on 155 that they shall be detained. >> that is seeking more of a man in a foreign country and alien, a family in the united states, not the asylum seeker but says that want to go home immigration officer says know we will keep you locked up for five years because there's something wrong with her initial application for the
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piece says noted they say yes. so i am asking if he has a family in the united states if you were locked up five years without any hearing whatsoever or opportunity for bail even though he can get out by abandoning his family is that the position quite. >> that that individual would have been hearing with the habeas proceeding but that is not these statutory interpretation. not only is that correct but that has spent the interpretation that shall be detained for one formulation was then the original statute that was enacted
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1952 and has always been understood. >> and pending the removal decisions. >> is for the consideration of asylum vacation -- application. >> that is what i want to invoke the history for literally 100 years and it is always said understood it is through parole so the government is not saying they don't get processed with the determination but we don't think you get there as that matter of statutory.
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a separate parole authority the government's position explains how you apply parole in these situations. >> in case is submitted

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