and again, i can't stress enough that the government did not raise an iqbal claim as to the plausibility of these allegations. only now in the reply brief where they're trying to address a sole motive situation, or a but-for, which is all we're asking this court to address, the government has now said the allegations are implausible. i think that in many situations -- you know, with the absolute immunity point, if i could just turn to that for a second -- the history, as you said, justice kennedy, the government has conceded they don't have a case on their side. we have plenty of cases in which, as the historians' we have plenty of cases and that our similar. but we're talking about the government's burden. the government came forward with no historical evidence. this is not inconsistent with warrants generally. we have surveyed the history of war and said that there is no history and we will not grant immunity for arrest warrants. this is even clearer. we are talking about a fairly ancillary and rarely used process. process. because it can be not be that you can have community in all ca

and again, i can't stress enough that the government did not raise an iqbal claim as to the plausibility of these allegations. only now in the reply brief where they're -- they're trying to address a sole motive situation, or a but-for, which is all we're asking this court to address, the government has now said the allegations are implausible. i think that in many situations -- you know, with the absolute immunity point, if i could just turn to that for a second -- the history, as you said, justice kennedy, the government has conceded they don't have a case on their side. we have plenty of cases in which, as the historians' brief points out, and as our brief points out, in which there was not immunity for the arrest of a -- for the arrest of a witness, which is very different than calling a witness, justice sotomayor. and what we are talking about here also is the government's burden. so i don't think that's something we could have -- we could have waived, especially since the ninth circuit addressed it and put the government on notice that the government came forward with no historical

and again, i can't stress enough that the government did not raise an iqbal claim as to the plausibility of these allegations. only now in the reply brief where they're trying to address a sole motive situation, or a but-for, which is all we're asking this court to address, the government has now said the allegations are implausible. i think that in many situations -- you know, with the absolute immunity point, if i could just turn to that for a second -- the history, as you said, justice kennedy, the government has conceded they don't have a case on their side. we have plenty of cases in which, as the historians' brief points out, and as our brief points out, in which there was not immunity for the arrest of a -- for the arrest of a witness, which is very different than calling a witness, justice sotomayor. and what we are talking about here also is the government's burden. so i don't think that's something we could have -- we could have waived, especially since the ninth circuit addressed it and put the government on notice that the government came forward with no historical evidence.

and i would importantly say in the questions presented, the government raised an iqbal claim as to plausibility only as to a small part of this case which is no longer part of the case, which is, was mr. ashcroft involved in the specific statements in this specific affidavit. they did not allege that the allegations of a pretextual policy were implausible. so it is not before this court, it is not a question presented, and i think it is telling that the government didn't raise it. they are sitting on all the information about what happened after 9-11 as a policy matter, and they did not claim it was implausible. >> just a point of detail. i may not be recalling correctly. you said this statute is rarely used. i thought there were 4,000 material witness hearings a year. is that mostly because of the immigration? >> yes, justice kennedy, and i apologize if i wasn't clear. that what the -- what the court of appeals showed and what the statistics also show is that roughly 92% of the cases are immigration cases, where the person is already subject to custody, and there wouldn't be any need to use it