[00:00:01] Speaker 00:
Good afternoon, your honors.

[00:00:03] Speaker 00:
My name is Robert Powell, and appearing on behalf of the petitioner, Javier Martinez.

[00:00:08] Speaker 00:
I would like to reserve two minutes by wave rebuttal.

[00:00:11] Speaker 00:
All right.

[00:00:12] Speaker 00:
The issue before the court is a constitutional one.

[00:00:16] Speaker 00:
If there's no clear and convincing evidence that Mr. Martinez is a danger to the community, then his continued detention violates due process.

[00:00:25] Speaker 00:
Four years ago, the Board of Immigration Appeals found that Mr. Martinez does constitute a danger to the community based on two prior convictions.

[00:00:36] Speaker 00:
Two years ago, this court held that there's no jurisdiction to review the board's decision about danger.

[00:00:42] Speaker 00:
We present now in light of Wilkinson, there are two arguments as to why this court does have, habeas court does have jurisdiction over the danger finding.

[00:00:53] Speaker 00:
First, section 1226 E does not preclude questions of law.

[00:00:59] Speaker 00:
And Wilkinson, the Supreme Court's decision, makes clear that this mixed question is, in fact, a question of law that's reviewable as a question of law.

[00:01:09] Speaker 00:
So there is jurisdiction.

[00:01:11] Speaker 03:
Council, the one distinction, though, from Wilkinson is that 1226E, the return of jurisdiction over questions of law is not statutory.

[00:01:20] Speaker 03:
It's, as far as I can tell, it's only from our precedent, Singh, the Singh case, I think Singh versus Barr.

[00:01:29] Speaker 00:
So does that make any difference to the analysis?

[00:01:36] Speaker 00:
The legal standard, as Ewan Wilkinson was a statutory standard, extremely unusual hardship.

[00:01:44] Speaker 00:
Whereas here, it's not a statutory standard.

[00:01:48] Speaker 00:
Danger to the community is a judicially created or a constitutional standard.

[00:01:52] Speaker 00:
That should not make any difference in terms of the jurisdictional analysis.

[00:01:56] Speaker 03:
No, yeah.

[00:01:57] Speaker 03:
My question was really on the... It's Singh Beholder that held that there is...

[00:02:03] Speaker 03:
jurisdiction, appellate court jurisdiction over questions of law and constitutional law questions.

[00:02:08] Speaker 03:
Whereas in Wilkinson, what restored jurisdiction was statutory.

[00:02:13] Speaker 03:
I just didn't know if that made a difference on how we analyze this question.

[00:02:17] Speaker 00:
I do not think that should make any difference.

[00:02:19] Speaker 00:
Singh makes clear, as does this court's decision in Rodriguez versus Marin and in Leonardo versus Crawford, that there's whether or not the

[00:02:33] Speaker 00:
whether or not they're from a statute or the court's interpretation, they're still jurisdiction.

[00:02:39] Speaker 00:
So yeah, that should not make a difference with respect to the jurisdictional analysis.

[00:02:43] Speaker 00:
What those cases make clear is that where there's a question of law at issue, where there's a mixed question at issue, that's a question of law that the court has jurisdiction to review.

[00:02:55] Speaker 04:
Let's assume that it's a mixed question of law and fact and that we do have jurisdiction.

[00:03:00] Speaker 04:
Can you tackle the merits?

[00:03:02] Speaker 04:
Where was the error in the dangerousness determination?

[00:03:04] Speaker 04:
I know that given the passage of time, you'd like to have it sent back, but isn't there a separate procedural mechanism to try to get him a bond hearing?

[00:03:15] Speaker 00:
Well, I mean, I suppose theoretically, we could start over at ground zero and file another application.

[00:03:23] Speaker 00:
I guess we'd have to go to the district court.

[00:03:26] Speaker 00:
But we would suggest it's much more economical, just rather than having us file a whole new lawsuit, is to remand this case back to the district court for a determination based on the current conditions.

[00:03:44] Speaker 00:
Well, what's the basis of that?

[00:03:46] Speaker 00:
Oh, well, the court has jurisdiction, first of all.

[00:03:49] Speaker 00:
There has been a passage of time.

[00:03:52] Speaker 00:
You know, this court certainly has the authority to send the case back to the district court for a determination based on current conditions.

[00:04:00] Speaker 03:
When did that require a brand new constitutional analysis?

[00:04:03] Speaker 03:
Because I think the hearing here was provided because of seeing after six months, you're required to have a hearing.

[00:04:11] Speaker 03:
But I don't think any other case has said after that due process requires another hearing.

[00:04:16] Speaker 00:
The.

[00:04:19] Speaker 00:
Well, yeah, that's a separate question, is whether due process would require a separate lawsuit seeking a second hearing.

[00:04:30] Speaker 00:
But again, it's perfectly within this court's authority to send the case back for a determination by the district court based on current conditions, whether or not Mr. Martinez is a danger to the community.

[00:04:43] Speaker 02:
And if we don't do that, and if we're just reviewing the district court

[00:04:47] Speaker 02:
decision reviewing the board's assessment on the record before it, what is the standard of review that we would apply or that I guess the district court should apply to the board's dangerousness finding?

[00:05:02] Speaker 00:
Yes, so Wilkinson addresses in part this question about what an appropriate standard of review is where there's a mixed question at issue and Wilkinson indicates that not all mixed questions are alike.

[00:05:16] Speaker 00:
and indeed suggests that where the mixed question is heavily fact involvement, where there's a heavy factual component, that normally that suggests a discretionary standard of review.

[00:05:34] Speaker 00:
I would point out an important gloss on that, though.

[00:05:39] Speaker 00:
Wilkinson relies on the Supreme Court's decision in U.S.

[00:05:44] Speaker 00:
Bank versus Lake Ridge, very important.

[00:05:47] Speaker 00:
In that case, the Supreme Court indicated in footnote four

[00:05:50] Speaker 00:
that, yeah, normally, where there's a heavy fact component, a mixed question would involve a deferential standard of review, normally.

[00:05:59] Speaker 00:
But Footnote 4 makes clear that's not always the case, and in particular, where there's a constitutional dimension, the calculus changes.

[00:06:08] Speaker 00:
And there in Footnote 4, the Supreme Court cites several other cases in which there's a constitutional standard at play in the mixed question.

[00:06:17] Speaker 00:
The Ornelas case, for example, which is cited in our brief,

[00:06:20] Speaker 03:
which involves... You just recently provided the 28-J letter on Zaya, which Doug did say that that would require a deferential standard of review.

[00:06:31] Speaker 03:
That's correct.

[00:06:32] Speaker 00:
Shouldn't we follow Zaya?

[00:06:34] Speaker 00:
But Zaya is, it's not a constitutional standard.

[00:06:40] Speaker 00:
That's a good faith, whether there's a good faith marriage, which is a statutory standard, it's not a constitutional... Why is this a constitutional standard?

[00:06:47] Speaker 00:
We're just assessing whether or not he's dangerous or not.

[00:06:50] Speaker 00:
Yeah, no, well, the danger analysis, that's a mixed question involving a constitutional standard.

[00:06:59] Speaker 02:
Why is it a constitution?

[00:07:00] Speaker 02:
I thought with the board, is it Henry Guerra that sets out a bunch of factors governing detention?

[00:07:07] Speaker 02:
Isn't that the law that the board was?

[00:07:10] Speaker 02:
applying here?

[00:07:13] Speaker 00:
Because there's a number of different factors that are considered.

[00:07:18] Speaker 00:
Right.

[00:07:18] Speaker 00:
But that clearly does not make the issue discretionary.

[00:07:23] Speaker 02:
Well, no, I'm not suggesting it's discretionary.

[00:07:26] Speaker 02:
I guess I'm suggesting that the governing law, I mean,

[00:07:30] Speaker 02:
Your theory of how we get to review this is that it's a mixed question of law, in fact, because it's the application of this legal standard.

[00:07:38] Speaker 02:
What I'm saying is that the legal standard seems to me to come from decisions of the board, and therefore that would suggest a sort of independent reason as a matter of administrative law why we might provide some deference to the board's understanding of what that legal standard is.

[00:07:56] Speaker 02:
Am I wrong to think?

[00:07:58] Speaker 02:
think of it that way.

[00:07:58] Speaker 00:
No, I don't think, I think that is wrong because where there's a constitution, so the issue here, danger to the community, that has implications for whether or not the constitution is violated or not, right?

[00:08:11] Speaker 00:
I mean, the court has held that if there's not clear and convincing evidence of danger,

[00:08:18] Speaker 00:
then the continued detention violates due process.

[00:08:22] Speaker 00:
So that standard is really crucial in determining whether or not there's a constitutional violation.

[00:08:29] Speaker 03:
So in the- Why isn't it just two separate questions?

[00:08:31] Speaker 03:
One, whether he's dangerous, and then two, if he's not dangerous, then the detention then is unconstitutional.

[00:08:37] Speaker 00:
Right, yeah.

[00:08:38] Speaker 03:
If there's- So why can't we, when we review dangerousness, why can't we apply the deferential standard review?

[00:08:44] Speaker 00:
Yeah, well, that's, I mean, I think the Supreme, in the cases that are cited in that footnote four in the U.S.

[00:08:50] Speaker 00:
bank case, make that, explain why.

[00:08:53] Speaker 00:
Where it says, where there's a constitutional issue at stake, the calculus changes.

[00:08:59] Speaker 00:
It's not differential, but the de novo review is crucial in the constitutional context.

[00:09:07] Speaker 00:
And the rationale that the court gives for that, I think, is very important to understand.

[00:09:11] Speaker 00:
In the Ornelas case, for example,

[00:09:13] Speaker 00:
The reason why de novo review is important is so that the court can maintain control over that legal standard and how that's applied in particular contexts.

[00:09:26] Speaker 03:
Can I ask a question?

[00:09:27] Speaker 03:
When the district court here or the magistrate judge applied the de novo review,

[00:09:31] Speaker 03:
The district court also said that questions of fact are reviewed for clear error.

[00:09:38] Speaker 03:
But wouldn't that be precluded by 1226E?

[00:09:41] Speaker 03:
Can't we not review factual questions?

[00:09:46] Speaker 00:
Well, first of all, of course, in this case, the facts are undisputed.

[00:09:50] Speaker 00:
So that doesn't really come into play in this particular case.

[00:09:54] Speaker 00:
But don't you think we should set out, if we're going to say, we should set out what the standard review was in these type of cases?

[00:10:01] Speaker 00:
The other, our other argument is that section 1226e does not really apply in this case.

[00:10:07] Speaker 00:
Well, besides that.

[00:10:08] Speaker 00:
Yeah.

[00:10:08] Speaker 00:
I mean, if it does, then, yeah, I mean, I don't think the court needs to reach that issue.

[00:10:15] Speaker 00:
But if it did, I would argue that whether, if it's really a constitutional issue at play,

[00:10:23] Speaker 00:
that the facts should be reviewed, should be reviewed, maybe under a deferential standard, clear error standard.

[00:10:35] Speaker 00:
But again, I don't think the court needs to get to that issue in this particular case because the facts are not disputed.

[00:10:41] Speaker 04:
Our question took you over time, but that's fine.

[00:10:44] Speaker 04:
I have a quick question for you.

[00:10:45] Speaker 04:
I'll give you two minutes back, I promise.

[00:10:46] Speaker 04:
And Judge Miller also has a question for you as well.

[00:10:50] Speaker 04:
So he's been in ICE custody since 2018, right?

[00:10:54] Speaker 00:
For more than six and a half years.

[00:10:55] Speaker 04:
Is he still in ICE custody right now?

[00:10:57] Speaker ?:
Yes.

[00:10:59] Speaker 04:
Have there been any attempts to get him a bond hearing through the immigration proceedings?

[00:11:04] Speaker 00:
Not since this case had been filed.

[00:11:09] Speaker 02:
You alluded to your argument that 1226E doesn't apply at all, and I just want to make sure I understand that.

[00:11:15] Speaker 02:
I understand that the bond hearing is a product of our decision in Singh rather than the statute itself, but it still seems like what the attorney general is doing in the bond hearing is making a judgment about whether he will be detained and 1226C provides for his detention.

[00:11:33] Speaker 02:
Why isn't that a judgment regarding the application of this section?

[00:11:36] Speaker 00:
Yeah, so the bond hearing is not under Section 1226.

[00:11:44] Speaker 00:
What's at play, I guess, is the district court's order that the prolonged detention may violate the Constitution.

[00:11:54] Speaker 00:
So when the district court sent that back to the agency for determination, the district court could have made its own independent determination.

[00:12:04] Speaker 00:
But for a matter of convenience, I guess, as is typical, the district court sent the case back for a bond hearing, but not a bond hearing under Section 1226.

[00:12:15] Speaker 00:
That's a bond hearing held for purposes of the constitutional analysis.

[00:12:20] Speaker 00:
If that was a bond hearing held under section 1226 and 1226 is applied, then the statute says he's not eligible for bond.

[00:12:32] Speaker 00:
And so I think the answer to your question is that the bond hearing here is not a

[00:12:39] Speaker 00:
what we might call an ordinary bond hearing, the one held under Section 1226.

[00:12:44] Speaker 00:
But it's specifically a hearing held for constitutional purposes.

[00:12:51] Speaker 00:
So the decision made by the immigration judge has not made one applying.

[00:12:56] Speaker 02:
Isn't it kind of odd, though?

[00:12:57] Speaker 02:
I mean, Congress said, you know, you get hearings in limited set of circumstances, not including this one.

[00:13:04] Speaker 02:
And they also said, when you do, we want very limited review of it.

[00:13:11] Speaker 02:
And we have this sort of atextual exception where there's a hearing.

[00:13:15] Speaker 02:
And then because that's not provided in the text, we say, well, now we also don't apply what Congress clearly intended was that the hearings that did take place would have very limited review.

[00:13:24] Speaker 02:
It seems kind of.

[00:13:26] Speaker 00:
I think this court's decision in Leonardo versus Crawford directly answers your question, because in Leonardo versus Crawford, it's exactly on all fours with this case.

[00:13:39] Speaker 00:
The petitioner in that case was challenging a danger decision made by the immigration judge.

[00:13:47] Speaker 00:
It was a prolonged detention case in which the district court said the immigration judge has to decide whether or not there's a danger to the community.

[00:13:55] Speaker 00:
And in that case, this court held that, yeah, the court has jurisdiction, and section 1226E does not take jurisdiction away from, regarding that due process constitutional claim.

[00:14:13] Speaker 04:
Thank you.

[00:14:14] Speaker 04:
All right.

[00:14:14] Speaker 04:
Thank you, counsel.

[00:14:24] Speaker 05:
Good afternoon.

[00:14:27] Speaker 05:
This is Dana Camilleri for the respondents.

[00:14:30] Speaker 05:
The panel's prior decision finding that there was no jurisdiction to review what happens at the bond hearing after it was remanded from the district court was correct and Wilkinson does nothing to change that analysis.

[00:14:44] Speaker 05:
In fact, Wilkinson actually buttresses and re-emphasizes that discretionary decisions such as where the agency hears

[00:14:53] Speaker 05:
looking at equities to see whether he should be released or not are not reviewable and 1226e absolutely applies in this situation.

[00:15:03] Speaker 05:
It's not disputed that he's mandatorily detained and that authority came from 1226c and 1226e

[00:15:11] Speaker 05:
Clearly, Congress intended that this should not be a reviewable determination.

[00:15:15] Speaker 05:
He got his bond hearing.

[00:15:17] Speaker 05:
The agency weighed what was before, made the value judgments, which this court articulated in its first decision.

[00:15:26] Speaker 05:
And that is discretionary.

[00:15:30] Speaker 05:
There's no legal standard to apply.

[00:15:33] Speaker 05:
There's nothing in the statute.

[00:15:34] Speaker 05:
It does come from a matter of vera.

[00:15:37] Speaker 05:
which was a board decision.

[00:15:39] Speaker 03:
Couldn't something be both discretionary and then a mixed question of law and fact?

[00:15:49] Speaker 05:
Not really.

[00:15:50] Speaker 05:
I'm trying to imagine that because hard because this actually might be that case.

[00:15:54] Speaker 03:
I kind of agree with you.

[00:15:56] Speaker 03:
Obviously the dangerousness is discretionary, but it's also a mixed question.

[00:16:01] Speaker 03:
It could also be a mixed question of law and fact under which Wilkinson clearly clearly says that we have jurisdiction over.

[00:16:07] Speaker 05:
So I think there are really important distinctions between hardship determination and what we're looking at here, which is effectively balancing all these equities.

[00:16:16] Speaker 05:
Guerra talks very clearly about how an immigration judge should use their judgment in weighing these various factors, including dangerousness.

[00:16:24] Speaker 05:
Isn't that the same for hardship?

[00:16:27] Speaker 05:
No, Your Honor, because the hardship actually comes from the statutory

[00:16:32] Speaker 05:
exceptional and extremely unusual hardship.

[00:16:34] Speaker 05:
And additionally, you're not really balancing equities.

[00:16:36] Speaker 05:
The IJ is looking to see what the result of removal will be to the qualifying relatives.

[00:16:42] Speaker 05:
And so we would argue that there is a distinction now post-Wilkinson, but that this still falls under discretionary.

[00:16:49] Speaker 02:
Is the distinction that it's a balancing test?

[00:16:51] Speaker 02:
Because otherwise, I mean, I get that one is statutory and one comes from board orders.

[00:16:55] Speaker 02:
But in both, like, you have to look at a bunch of factors and, like, apply a lot of facts, which seems to be the feature that Wilkinson thought was important.

[00:17:07] Speaker 02:
And that's equally present here.

[00:17:09] Speaker 02:
So why is it different?

[00:17:12] Speaker 05:
Well, from our view, there are two important distinctions.

[00:17:15] Speaker 05:
One, none of these terms are in the statute.

[00:17:18] Speaker 05:
We also have 1226E, which is a specific carve-out, also not present for the hardship.

[00:17:25] Speaker 03:
Even in Gasparillo's equitable estoppel, right?

[00:17:29] Speaker 03:
I doubt that that was in the statute either.

[00:17:31] Speaker 05:
That's correct.

[00:17:34] Speaker 05:
But I think this court already found whether Guerrero or Lasparillo applied, and it should still find that it does not.

[00:17:41] Speaker 05:
as we talked about in our supplemental briefing.

[00:17:44] Speaker 05:
However, the other important distinction here is that there is no, when the agency is doing the bond determination, it's not mandatory that someone needs to be released.

[00:18:00] Speaker 05:
This is a mandatorily detained non-citizen.

[00:18:03] Speaker 05:
And what we are arguing is that Congress pretty clearly intended that things that happen at the bond hearing are not reviewable because that is just an IJ using their judgment in the first panel decision.

[00:18:18] Speaker 05:
There's a very good breakdown on how you could go either way.

[00:18:25] Speaker 05:
He's had some rehabilitation in jail and had some

[00:18:31] Speaker 05:
he's had success staying clean but he also has these two major drug trafficking.

[00:18:35] Speaker 03:
That's my problem with this is that the second sentence of 1226E says that no court shall, I forget the language, but set aside the decision of the Attorney General regarding this section.

[00:18:50] Speaker 03:
If we were to find there was no dangerous, that he was not dangerous, then presumably he would be let go, correct?

[00:18:57] Speaker 03:
And so I don't know how we square that with this direct statutory command not to set aside a decision of the attorney general.

[00:19:06] Speaker 05:
Yes, your honor.

[00:19:06] Speaker 05:
That is part of our argument that they're rendered.

[00:19:12] Speaker 03:
Yeah.

[00:19:12] Speaker 03:
I think the problem is really Singh versus Holder, which kind of puts us in this conundrum, which

[00:19:17] Speaker 03:
access to violate the statute essentially, and I just don't know what we're supposed to do with that.

[00:19:25] Speaker 05:
The district court initially, this predates my involvement in this case, but they initially granted and sent it back down for the bond hearing.

[00:19:35] Speaker 05:
He's had that bond hearing and we don't think that what happened there is reviewable because it is so discretionary and it is up to the DHS and the agency to determine whether

[00:19:51] Speaker 05:
a non-citizen should be detained or not.

[00:19:53] Speaker 02:
And you're not challenging the idea that under Singh, he was indeed entitled to a bond hearing and that Singh, you haven't challenged the continuing validity of Singh as it relates to this case, have you?

[00:20:06] Speaker 05:
No.

[00:20:06] Speaker 05:
He was ordered to have a bond hearing.

[00:20:09] Speaker 05:
He was given that bond hearing.

[00:20:10] Speaker 05:
He was provided the opportunity to present his evidence.

[00:20:14] Speaker 05:
And the immigration judge... I don't know if you're positioned to answer.

[00:20:17] Speaker 03:
Does the United States think that Singh is correctly decided?

[00:20:21] Speaker 04:
We're not challenging Singh.

[00:20:25] Speaker 04:
What is the status of his immigration proceedings, given the passage of time?

[00:20:28] Speaker 04:
Do you know where he's at in the process?

[00:20:33] Speaker 04:
Where his merits case is at?

[00:20:35] Speaker 05:
Yes, Your Honor.

[00:20:36] Speaker 05:
His merits case, I believe, is before the board, but that is probably a better question for opposing counsel.

[00:20:42] Speaker 05:
It was remanded, as Judge Buitre knows, to make a determination on CAT and administrative closure.

[00:20:52] Speaker 03:
And assuming that we do have jurisdiction over, what should be the standard of our review of the dangerousness determination?

[00:20:59] Speaker 05:
We think, as I pointed out in the 28-J, that under Zaya and it should be incredibly deferential, probably abusive discretion.

[00:21:08] Speaker 03:
Yeah, that's my question.

[00:21:12] Speaker 03:
What is deferential?

[00:21:14] Speaker 03:
I forget what Zaya used.

[00:21:18] Speaker 03:
use, suggest a more deferential standard.

[00:21:21] Speaker 03:
So maybe it'd be... Right.

[00:21:24] Speaker 05:
And as of today, no circuit courts, if you did decide that this is exactly like hardship, which again, we don't agree with, but no circuit courts have actually determined what that standard of review will be.

[00:21:38] Speaker 04:
You mentioned administrative closure.

[00:21:40] Speaker 05:
When did that come up?

[00:21:42] Speaker 05:
That came up in his first proceedings and it was, I'm trying to remember now, it was rejected and we made a futility argument before this court, which was not successful.

[00:21:56] Speaker 03:
And then just back on the standard, the district court applied a clearly erroneous standard to questions of fact.

[00:22:05] Speaker 03:
Does the United States think that we can't review questions of fact?

[00:22:09] Speaker 05:
Under Patel, we think that there's, I mean, I do agree with Bob that there's, it's not like the, I'm sorry, opposing counsel.

[00:22:19] Speaker 05:
I'm sorry.

[00:22:19] Speaker 05:
We've been on this case for so many years.

[00:22:21] Speaker 05:
I'm glad to hear you guys on first name basis, actually.

[00:22:24] Speaker 05:
I'm sorry.

[00:22:25] Speaker 05:
That's nice to see.

[00:22:27] Speaker 05:
We've had a lot of communications over the years, but I agree that we don't really have disputed facts necessarily.

[00:22:34] Speaker 05:
It's just how the decision maker views those facts.

[00:22:40] Speaker 04:
How does the passage of time tie into the analysis, if at all?

[00:22:44] Speaker 04:
I mean, at the same time, we've got the record, but we're also very cognizant of the fact that years have passed now.

[00:22:51] Speaker 05:
Well, I mean, he does still have, he still clearly falls under 1226C.

[00:22:56] Speaker 05:
They have the authority to detain him.

[00:22:58] Speaker 05:
And in fact, Congress has mandated that based on his convictions, he should be.

[00:23:03] Speaker 05:
That hasn't changed.

[00:23:05] Speaker 04:
Well, council thinks it's relevant and requested a remand for reconsideration.

[00:23:11] Speaker 04:
What is your view on that?

[00:23:12] Speaker 05:
Oh, I don't think there's that that should not happen though.

[00:23:18] Speaker 05:
There should be a decision based on supplemental briefing in our prior briefing from this court, but not a remand in order to redo these proceedings.

[00:23:28] Speaker 05:
It's not the government hasn't been dragging this out by any means.

[00:23:36] Speaker 04:
Any additional questions?

[00:23:37] Speaker 04:
Would you like to see the rest of your time back?

[00:23:40] Speaker 04:
I will.

[00:23:41] Speaker 04:
Thank you very much.

[00:23:42] Speaker 04:
Thank you.

[00:23:50] Speaker 00:
Yes, just a couple points, two points to follow up.

[00:23:54] Speaker 00:
First, with respect to the question about whether a mixed question might be partly discretionary and partly mixed question, even if in some sense there is a, quote, discretionary component or some fluidity in the concept, I think Wilkinson makes clear that even if it's, quote, discretionary in that sense, there's still a question of law.

[00:24:14] Speaker 00:
Wilkinson specifically says,

[00:24:16] Speaker 00:
And I'm just quoting from Wilkinson here that petitions raising mixed questions of law, in fact, are always, it says always, reviewable as a question of law.

[00:24:27] Speaker 00:
So again, even if there's some discretionary component there, Wilkinson says this is always reviewable as a question of law.

[00:24:35] Speaker 03:
So it's not a binary discretionary and versus mixed question law, in fact?

[00:24:38] Speaker 00:
Well, there is a discretionary, I think, in a legal sense, discretionary decision.

[00:24:44] Speaker 00:
For example, in Wilkinson, that second, after you get over the threshold issues, there is a second discretion, which is truly, in a legal sense, discretionary.

[00:24:58] Speaker 00:
There's no legal standards that apply at that stage.

[00:25:00] Speaker 00:
The cancellation part, you mean?

[00:25:02] Speaker 00:
Yes, yes.

[00:25:04] Speaker 00:
Yes, that's correct.

[00:25:06] Speaker 00:
The second point I would make is, as the court has noticed, Mr. Martinez has been in detention for six and a half years now.

[00:25:14] Speaker 00:
That's a very long time for immigration detention.

[00:25:17] Speaker 00:
We're back at square one.

[00:25:20] Speaker 00:
The case has been remanded for a new hearing on the merits of his claim for relief.

[00:25:26] Speaker 00:
Um, so we just ask that, um, you know, the court, if the court is going to remand that that can be done promptly, um, so that the, I, I think it is an, it seems to me an easy question whether or not the court has jurisdiction.

[00:25:39] Speaker 00:
That's quite clear in light of Wilkinson.

[00:25:41] Speaker 00:
Maybe there are some issues about the appropriate standard of review.

[00:25:44] Speaker 00:
But that can be sent back to the district court, and that can be dealt with there, at least so we get this moving on and have a prompt decision.

[00:25:51] Speaker 00:
I understand that sometimes it's important for the court to look at an issue carefully, and a decision might not come out for several months, and that's understandable.

[00:26:02] Speaker 00:
The other thing I would point out is that, you know, this court does have authority to release Mr. Martinez under certain conditions.

[00:26:10] Speaker 00:
The Nataraja case, for example, where this court did that, it released, ordered that the individual be released.

[00:26:17] Speaker 00:
That was done, what, 11 years ago by Judge Lasnik in the district court.

[00:26:22] Speaker 00:
Mr. Martinez, after he was sentenced, was allowed no violations.

[00:26:28] Speaker 00:
In fact, he reported, self-reported into the prison to begin his prison sentence.

[00:26:32] Speaker 00:
He's clearly, I would submit, clearly willing to comply with court's orders.

[00:26:38] Speaker 00:
And yes, he's been in six and a half years.

[00:26:40] Speaker 00:
And we request that one way or another that we get a prompt resolution.

[00:26:46] Speaker 04:
All right, thank you very much, Council, on both sides for your argument.

[00:26:49] Speaker 04:
The matter is submitted.

[00:26:50] Speaker 00:
Thank you.

[00:26:55] Speaker 04:
All rise.