[00:00:00] Speaker 00:
Good morning, Your Honors.

[00:00:02] Speaker 00:
May it please the Court?

[00:00:04] Speaker 00:
I represent the petitioner, Mr. Mohammed Al-Khadi, a native and citizen of Yemen, in this petition for review in which the Board of Immigration Appeals reversed a decision of the immigration judge, granting Mr. Al-Khadi's application for adjustment of status.

[00:00:24] Speaker 00:
The so-called frivolous asylum bar is one of the most draconian provisions of the Immigration and Nationality Act.

[00:00:31] Speaker 00:
Because once this finding is made, the alien is permanently ineligible for any immigration benefits under the INA.

[00:00:40] Speaker 04:
And I just want to make sure we have the correct procedural posture of this case and what's at issue.

[00:00:48] Speaker 04:
After remand, the IJ found that your client was subject to the bar.

[00:00:52] Speaker 04:
You're not, we're not today reviewing that decision, are we?

[00:00:57] Speaker 04:
In other words, I think there's more than substantial evidence to support the notion that your client filed a frivolous application.

[00:01:05] Speaker 04:
Your argument today is it should have never been sent back to the IJ to make that determination, right?

[00:01:11] Speaker 00:
Your Honor, the frivolousness determination and frivolous finding are interconnected.

[00:01:17] Speaker 00:
So we are saying that immigration judge was bound on remand

[00:01:22] Speaker 00:
That's right.

[00:01:24] Speaker 04:
But your contention today is not that the immigration judge erred in making a frivolous finding.

[00:01:31] Speaker 04:
Your argument today is that the BIA erred in sending the case back to the immigration judge to do that.

[00:01:39] Speaker 00:
Yes, but the BIA, the immigration judge felt compelled.

[00:01:44] Speaker 04:
I understand.

[00:01:44] Speaker 04:
I understand that the judge felt compelled to.

[00:01:47] Speaker 04:
But whether she felt compelled to or didn't feel compelled to, you're not attacking, you're not saying that finding is not supported by substantial.

[00:01:55] Speaker 00:
That's correct.

[00:01:56] Speaker 00:
That's correct.

[00:01:57] Speaker 04:
So that leads me to my real question.

[00:02:01] Speaker 04:
I'm trying to figure out what the BIA did here.

[00:02:04] Speaker 04:
The briefing seems to treat this as whether the BIA made a

[00:02:08] Speaker 04:
determine whether the statute required the IJ to do what he did on remand.

[00:02:16] Speaker 04:
Another way of reading it, because there's other stuff in the opinion, is that, look, as a matter of orderly administration, whether or not you're required to do that in the first instance, we want you to.

[00:02:29] Speaker 04:
because then we'll have a whole case in front of us for review.

[00:02:33] Speaker 04:
And if we're looking at statutory interpretation, we might reach one conclusion.

[00:02:37] Speaker 04:
If we're looking at the BIA and the AG structuring the way they do things as a matter of procedure, we might reach another conclusion.

[00:02:46] Speaker 04:
So which of the two was the BIA doing and can we tell?

[00:02:50] Speaker 00:
Your Honor, I believe the BIA was doing the first question you referred to.

[00:02:56] Speaker 00:
We believe that the BIA did not want to address

[00:02:59] Speaker 00:
the discretionary finding issue, they just wanted to say that once the DHS raises the frivolousness issue, that the judge is required by law to make a... Required by statute.

[00:03:15] Speaker 00:
Yes.

[00:03:16] Speaker 00:
That's what they're saying.

[00:03:17] Speaker 00:
And we disagree with that.

[00:03:19] Speaker 00:
We disagree because we believe that the text, the structure, and the history of the frivolous bar provision all compel the conclusion

[00:03:28] Speaker 00:
that immigration judge has discretionary authority whether to initiate a fibrous inquiry or not.

[00:03:35] Speaker 04:
So let's say I agree with you on that for a moment, just for purposes of discussion.

[00:03:40] Speaker 04:
Could the AG, through the BIA and the IJ, there's sort of a trinity here.

[00:03:46] Speaker 04:
They're all the AG.

[00:03:48] Speaker 04:
Could the AG say, look, the statute doesn't require you to make that determination, initially, IJ.

[00:03:56] Speaker 04:
our procedures will sure work better if you do.

[00:03:59] Speaker 04:
I want you to make all the determinations put up in front of you in the first instance, and then when they come up to the BIA for review, if it disagrees with one, it'll be able to review the other.

[00:04:10] Speaker 04:
As a matter of regulatory procedure, could the AG set up subjudger procedure?

[00:04:18] Speaker 00:
I believe the agency could, as long as there's, as long as it's proper guidance.

[00:04:24] Speaker 00:
Right.

[00:04:24] Speaker 04:
The statute doesn't prohibit that procedure.

[00:04:27] Speaker 04:
You're just saying it doesn't mandate it.

[00:04:29] Speaker 00:
That's correct.

[00:04:30] Speaker 00:
Okay.

[00:04:30] Speaker 00:
Thank you.

[00:04:30] Speaker 00:
Yes.

[00:04:32] Speaker 00:
We believe that the board's interpretation of the frivolousness bar provision was in conflict with its earlier decision, which requires that if the frivolous analysis under matter of YL is satisfied,

[00:04:48] Speaker 00:
that a frivolous finding must be made.

[00:04:50] Speaker 02:
And given that interpretation, what do we do with that?

[00:04:54] Speaker 02:
We've got two different opinions, roughly 10 years apart, that seem to be mutually inconsistent.

[00:05:00] Speaker 02:
So what do we do with that?

[00:05:02] Speaker 00:
Well, Your Honor, when the agency's decision is inconsistent and it doesn't address the prior ruling, then it is not reasonable under Chevron and should not be given any deference.

[00:05:16] Speaker 00:
The board's decision gives absolute power, veto power, to DHS over frivolousness determinations, which violate the immigration judge's authority to exercise independent judgment and discretion in adjudicating cases.

[00:05:31] Speaker 02:
Do we have to, as you well know, the Chevron issue is pending before the Supreme Court.

[00:05:37] Speaker 02:
Is it your view that we cannot decide this case without reference to Chevron and its teachings?

[00:05:46] Speaker 00:
Yes, Your Honor.

[00:05:47] Speaker 00:
The reason being that even if the Supreme Court were to reverse the Chevron doctrine, we believe that Chevron doctrine applies only if the statute is ambiguous and all tools of statutory interpretation have been exhausted.

[00:06:02] Speaker 00:
We believe that the text structure and history of the entire statutory provision compels the conclusion that immigration judges have the discretionary authority

[00:06:12] Speaker 00:
not to entertain frivolous determination.

[00:06:15] Speaker 03:
So I think, is your answer then to Judge Smith's question no, we can do this without Chevron?

[00:06:21] Speaker 02:
Yes, Your Honor.

[00:06:22] Speaker 03:
Okay.

[00:06:22] Speaker 03:
Okay.

[00:06:23] Speaker 02:
I misunderstood as well.

[00:06:24] Speaker 02:
Oh, yeah.

[00:06:25] Speaker 03:
What, before the IJ on remand from the BIA did, where it appears that the BIA provided

[00:06:38] Speaker 03:
some discretion, assumed some discretion and whether or not that was consistent with other cases, that's a different question, but they assumed that there was room for the IJ to maneuver after making the findings.

[00:06:49] Speaker 03:
Did you argue that the IJ could exercise discretion in favor of your client even after the findings?

[00:06:58] Speaker 00:
Your Honor, we did not argue because we felt that the BIA case law was quite clear in matter of XMC, that immigration judge was required if the frivolous analysis was satisfied to enter a frivolous finding.

[00:07:14] Speaker 04:
But you did have the language in the BIA's decision in this case saying, we're not sure you have to.

[00:07:21] Speaker 04:
And that's exactly the problem with this case, Your Honor.

[00:07:24] Speaker 04:
I know it's a problem, and I guess I'm trying to figure out.

[00:07:27] Speaker 04:
It's just a fact.

[00:07:28] Speaker 04:
You could have argued that to the IJ, given the BIA's decision.

[00:07:31] Speaker 04:
It would have been futile.

[00:07:33] Speaker 04:
Wait, maybe.

[00:07:35] Speaker 04:
That was Judge Smith.

[00:07:36] Speaker 03:
Yeah, I guess.

[00:07:37] Speaker 04:
You had two conflicting BIA decisions.

[00:07:39] Speaker 04:
You could have gone to the IJ and said, the second one in my case controls, not the old one, couldn't you?

[00:07:45] Speaker 00:
But we believe that the immigration judge lacked the authority.

[00:07:49] Speaker 00:
Immigration judges only follow what BIA dictates.

[00:07:52] Speaker 03:
But here it was on remand from a published opinion that specifically police purported to grant that authority.

[00:08:01] Speaker 03:
So do you think you've given the procedural posture that we've worked out with Judge Hurwitz here, have you properly preserved this issue?

[00:08:11] Speaker 00:
We believe, Your Honor, that in this case,

[00:08:14] Speaker 00:
That would not have been the right tactic or we felt that the better way to go would be to challenge the decision immediately and to give more guidance so the immigration judges can have more guidance and not guess what they need to do.

[00:08:30] Speaker 00:
We believe that BIA had the chance to fix this in the first instance, and they should not be... Could it fix it in the first instance?

[00:08:39] Speaker 00:
Your Honor, they should have explained in their decision that, well, even if the matter of YL analysis was satisfied, that they would, that the judge still has discretion not to enter a frivolous finding, but they never, they left it to another day inexplicably.

[00:08:55] Speaker 04:
Here's my concern, and I'm not sure which way it cuts, I just want to...

[00:08:59] Speaker 04:
lay it out for you.

[00:09:02] Speaker 04:
BIA says something like, we can't engage in our appellate review here unless we know whether or not the facts establish frivolousness.

[00:09:16] Speaker 04:
And so we'd like you to go back and tell us that.

[00:09:19] Speaker 04:
You don't have to enter a frivolous determination.

[00:09:22] Speaker 04:
We can do that.

[00:09:23] Speaker 04:
That's a matter of law, as opposed to as a matter of fact.

[00:09:27] Speaker 04:
But we can't make factual findings.

[00:09:29] Speaker 04:
So I sort of read the BAA decision, although I must admit it's susceptible of several readings, as saying, set this up so we can engage in appellate review.

[00:09:41] Speaker 04:
You find the facts.

[00:09:42] Speaker 04:
If you find the facts, establish frivolousness.

[00:09:45] Speaker 04:
It can come back to us, and we can then say, gee, you may have wanted to exercise your discretion, but we review that de novo, too.

[00:09:53] Speaker 04:
And given these facts, we don't think you should, and we'll apply the bar.

[00:09:57] Speaker 04:
Why shouldn't I read the opinion that way?

[00:09:59] Speaker 00:
Your Honor, more fact-finding was not necessary.

[00:10:01] Speaker 00:
In fact, the DHS's appeal to the Board, they never asked for additional fact-finding.

[00:10:07] Speaker 04:
In fact, they said that- Yeah, but the board said, the board said, we can't find the facts.

[00:10:13] Speaker 04:
DHS is saying that this application is frivolous.

[00:10:17] Speaker 04:
We can't engage in fact finding in the first instance.

[00:10:20] Speaker 00:
You know, they were trying to analyze the statute.

[00:10:22] Speaker 00:
They were not saying that they couldn't find that in the first instance, the facts in this record did not show a frivolous analysis satisfied.

[00:10:31] Speaker 00:
Could they have?

[00:10:33] Speaker 00:
If the facts were not properly developed, yes.

[00:10:36] Speaker 04:
Could the board on the record in front of it, in this case, have said, the facts established for the business, we're going to apply the bar?

[00:10:45] Speaker 00:
Yes.

[00:10:45] Speaker 00:
Without remanding?

[00:10:47] Speaker 00:
Exactly.

[00:10:47] Speaker 00:
Because that's why additional fact finding was not necessary.

[00:10:51] Speaker 00:
We believe the facts were clear.

[00:10:52] Speaker 00:
The DHS even never raised that issue.

[00:10:54] Speaker 00:
In fact, the DHS on their appeal to the board

[00:10:58] Speaker 00:
asked the board to enter a frivolous finding based on the record.

[00:11:01] Speaker 00:
And there was no additional fact finding on remand because facts were clear.

[00:11:05] Speaker 00:
So the question here is not whether immigration judge could not have entered a frivolous finding in the first instance.

[00:11:12] Speaker 04:
This all goes back to where I was trying to lead you.

[00:11:16] Speaker 04:
What do you want us to do in this case?

[00:11:18] Speaker 04:
Even if under your view of the case, it seems to me we should remand it to the board.

[00:11:25] Speaker 04:
and say, gee, you interpreted the statute wrong, but you can enter a frivolousness finding all on your own, and that would be the end of the case, because that's what you just told me.

[00:11:39] Speaker 00:
No, Your Honor.

[00:11:40] Speaker 00:
What I was saying was that the legal issues and the factual issues were ripe

[00:11:45] Speaker 00:
for adjudication before the board.

[00:11:47] Speaker 00:
There was no need for the board to send it.

[00:11:48] Speaker 04:
But the board never reached the frivolousness issue because it sent it back to the IJ.

[00:11:53] Speaker 04:
And you're telling me now what it should have done is reached it on its own.

[00:11:57] Speaker 04:
And I think if you're right, what we ought to do is say to the board, gee, you didn't need to send it back to the IJ.

[00:12:04] Speaker 04:
You could have reached this issue entirely on your own based on the record and have at it.

[00:12:09] Speaker 00:
Well, Your Honor, the frivolousness issue was not before the board.

[00:12:12] Speaker 00:
The issue was not whether

[00:12:14] Speaker 00:
there was a frivolous finding or could have been a frivolous finding, the issue was discretion.

[00:12:19] Speaker 04:
So are you saying that the IJ's decision not to make a frivolous finding takes frivolousness out of the case forever?

[00:12:30] Speaker 00:
No, Your Honor.

[00:12:32] Speaker 04:
Because the board plainly has the ability to say, you know, we'd like to know whether this was a frivolous application.

[00:12:39] Speaker 00:
But Your Honor, that was not the issue before the board.

[00:12:41] Speaker 00:
The issue before the board was whether the judge has discretion not to engage in a frivolous analysis.

[00:12:49] Speaker 00:
The issue was not.

[00:12:50] Speaker 04:
Follow me on this, because this is important to me.

[00:12:53] Speaker 04:
Let's assume we agree with you that the board erred in saying that the IJ had the discretion not to engage in a frivolousness analysis.

[00:13:02] Speaker 04:
You do agree the board can review de novo the exercise of that discretion.

[00:13:08] Speaker 00:
Yes.

[00:13:09] Speaker 04:
And it could then say, gee, IJ, we really want a frivolousness analysis, or as you say, and this record makes it so clear that this was frivolous, that we'll just enter a frivolousness analysis.

[00:13:24] Speaker 00:
Yes, that would be a separate issue altogether.

[00:13:26] Speaker 04:
Okay, so those are both things that would be open to the board if we agree with your position.

[00:13:30] Speaker 00:
Yes.

[00:13:31] Speaker 04:
Thank you.

[00:13:32] Speaker 02:
Yes.

[00:13:32] Speaker 02:
Do you want to save any of your time for rebuttal?

[00:13:34] Speaker 00:
Yes, Your Honor.

[00:13:35] Speaker 00:
It's entirely up to you.

[00:13:36] Speaker 00:
Oh, sure.

[00:13:37] Speaker 02:
Whatever the remaining time is.

[00:13:38] Speaker 02:
40 seconds.

[00:13:39] Speaker 02:
Okay.

[00:13:39] Speaker 02:
Thank you.

[00:13:40] Speaker 02:
Okay.

[00:13:42] Speaker 02:
Okay.

[00:13:43] Speaker 02:
Ms.

[00:13:43] Speaker 02:
Takelitt.

[00:13:53] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:13:54] Speaker 01:
I'm Lauren Takelitt, representing Merrick Garland, United States Attorney General.

[00:13:59] Speaker 01:
In a presidential opinion, the board clarified the procedure that the immigration judges must follow when the government raises the frivolousness bar issue.

[00:14:07] Speaker 04:
Why must they follow that procedure?

[00:14:09] Speaker 04:
Is it because the statute requires it?

[00:14:13] Speaker 01:
No, it is because the board is reliant upon the immigration judge to make findings of fact for them to then rule on.

[00:14:23] Speaker 04:
But how do I tell them?

[00:14:25] Speaker 04:
I must admit, I can't tell that from the BIA's opinion.

[00:14:29] Speaker 04:
And I'm not sure I can tell it from the briefing on either side, most of which is devoted to whether or not the board's interpretation of the statute is entitled to deference.

[00:14:41] Speaker 01:
I believe your honor actually made the exact point, which is that the INA does not require or prohibit the procedure that the board is prescribing here.

[00:14:51] Speaker 01:
However, there's just silence in the statute.

[00:14:56] Speaker 01:
It is not clear when the attorney general must undertake the inquiry.

[00:15:00] Speaker 01:
And silence in the statute does not mean that the immigration judge inherently has discretion.

[00:15:06] Speaker 01:
It means there's a gap for the agency to fill.

[00:15:09] Speaker 01:
and here the board reasonably filled that gap.

[00:15:13] Speaker 04:
But it purported to be interpreting the statute, and it purported to be saying the statute requires the IJ to do that.

[00:15:22] Speaker 04:
And I have some difficulty with that position in a statute that says if.

[00:15:26] Speaker 04:
So let's assume that I think that as a matter of law, the statute doesn't require that.

[00:15:33] Speaker 04:
What do we do with this case?

[00:15:37] Speaker 01:
Even if the statute doesn't require the procedure that the board established, the board's procedure is a reasonable procedure for an appellate body, i.e.

[00:15:47] Speaker 01:
it relies on the immigration judge's fact finding.

[00:15:50] Speaker 01:
And so establishing that reasonable procedure that is not contrary to the statute should be afforded deference.

[00:15:59] Speaker 02:
Let me ask you this.

[00:16:00] Speaker 02:
We ask your friend.

[00:16:03] Speaker 02:
What role, if any, Chevron should play in our analysis?

[00:16:06] Speaker 02:
Is it the government's view that we can decide this case without reference to Chevron because the statute is not ambiguous?

[00:16:17] Speaker 01:
I would not say that you could decide it completely without deference.

[00:16:21] Speaker 01:
The statute and the regulations are silent on when the immigration judges have to undertake this inquiry.

[00:16:27] Speaker 01:
However, it's not reliant upon Chevron.

[00:16:30] Speaker 02:
I can say it's our difference as opposed to Chevron difference, right?

[00:16:34] Speaker 01:
Yes, any form of difference in the sense that there is some ambiguity.

[00:16:40] Speaker 01:
I think also the ambiguity comes from determines, is determines an application of a legal statute or is it some level of discretion?

[00:16:51] Speaker 01:
There's ambiguity in several different places here and that ambiguity

[00:16:57] Speaker 01:
the board is answering it with a reasonable procedure.

[00:17:00] Speaker 03:
I guess there's, on one read of it at least, there's not just ambiguity.

[00:17:04] Speaker 03:
There's, I think as you've said, there's just an absence of regulation on this.

[00:17:11] Speaker 03:
And what do we make of the fact that typically when the department wants to structure procedures, it's something that the Supreme Court has criticized us for.

[00:17:25] Speaker 03:
It does regulations.

[00:17:27] Speaker 03:
In other words, there's not this room for a generalized gloss to say what they can or can't do outside of the regulations, because elsewhere, there are the requirements for findings.

[00:17:39] Speaker 03:
Doesn't the department usually put that in regulation?

[00:17:42] Speaker 01:
It can, but it need not.

[00:17:44] Speaker 01:
The formal adjudication is another method of establishing agency procedure, and we have a precedential opinion here.

[00:17:55] Speaker 03:
if we're trying to figure out

[00:17:58] Speaker 03:
where the bottom of this authority lies, where would we look?

[00:18:05] Speaker 03:
Just the general statutory authority of the attorney general, do you have a site for us?

[00:18:13] Speaker 03:
Because one of the problems is when we have the BIA in a published opinion, maybe not being as clear as it could, and potentially conflicting with one or more of its prior opinions,

[00:18:27] Speaker 03:
Um, we have to measure that to something and what we probably ought to be doing is measuring it with respect to either the agency's own regulations or the statute.

[00:18:37] Speaker 03:
And, and I don't think it's really a question of ambiguity.

[00:18:42] Speaker 03:
It's a question of just an absence of authority.

[00:18:45] Speaker 03:
Can you fill that?

[00:18:49] Speaker 01:
Yes, but I can't give you a direct site to a specific regulation on the Attorney General's power here.

[00:18:57] Speaker 01:
It's just the understood inherent authority of the agency to set its own internal procedures.

[00:19:05] Speaker 01:
All that is required here is that the immigration judge make findings of fact.

[00:19:10] Speaker 01:
That doesn't require that the immigration judge find YL satisfied.

[00:19:15] Speaker 01:
If you look at the- Is that right?

[00:19:16] Speaker 04:
Look at the last paragraph of the BIA's decision, what it instructs the immigration judge to do.

[00:19:24] Speaker 04:
Doesn't it instruct him that he also has to decide whether the bar applies?

[00:19:29] Speaker 01:
He has to decide whether the bar applies.

[00:19:31] Speaker 01:
That doesn't mean that he has to determine

[00:19:35] Speaker 01:
that it applies.

[00:19:36] Speaker 03:
But isn't that what XMC held?

[00:19:40] Speaker 01:
No.

[00:19:40] Speaker 01:
XMC is dealing with a completely different issue than this case.

[00:19:43] Speaker 01:
XMC is about whether a withdrawn asylum application can be used as the basis for the frivolousness bar applying.

[00:19:54] Speaker 01:
And that language that the court highlighted in its order read in context

[00:20:01] Speaker 01:
The agency just wasn't even considering the aftermath of YL in that case.

[00:20:07] Speaker 01:
All it was doing is trying to decide, can we use a withdrawn application?

[00:20:14] Speaker 03:
So it's the government's position, notwithstanding what the IJ understood the law to be, that an IJ can make the inquiry as required by the opinion here, but need not make the determination of frivolousness.

[00:20:32] Speaker 01:
The government's position is that the board left that question open.

[00:20:36] Speaker 03:
Well, then we're back to how can that question be open if the governing statute starts with the word if?

[00:20:47] Speaker 01:
Well, so I think what's important here is that the various YL factors, the analysis that the board is requiring immigration judges undertake when the government raises,

[00:21:02] Speaker 01:
Those inform whether the filing is truly deliberate.

[00:21:06] Speaker 01:
If you look at the language in YL, it's talking about both the third and fourth factors, the opportunity to explain and whether or not there's evidence supporting the IJ's finding.

[00:21:18] Speaker 01:
Both of those are supposed to, sorry, no.

[00:21:24] Speaker 01:
The opportunity to explain informs whether there is that frivolousness finding.

[00:21:31] Speaker 04:
So I guess what you're saying is that even if the application appears frivolous on its face, the YL factors are not satisfied until somebody has an opportunity to explain.

[00:21:43] Speaker 01:
Exactly.

[00:21:43] Speaker 04:
Okay.

[00:21:44] Speaker 04:
Now, but I'm still reading, I'm still hung up on what

[00:21:49] Speaker 04:
the BIA did here, it said if the immigration determines these requirements, the requirements of YAL have been satisfied, she must make the necessary findings of fact and conclusions of law and determine whether the mandatory bar to relief applies in this case.

[00:22:09] Speaker 04:
Is there a difference between determining whether it applies and applying it?

[00:22:13] Speaker 04:
That's cutting the salami pretty thin, isn't it?

[00:22:17] Speaker 01:
Yes.

[00:22:17] Speaker 04:
So she was told she had to apply it if she made the necessary findings of fact and conclusions of law after conducting the YAL analysis, wasn't she?

[00:22:27] Speaker 01:
If those applications of fact to law then indicated that the bar was met, i.e.

[00:22:33] Speaker 01:
if she found that it was frivolous.

[00:22:35] Speaker 04:
So she really wasn't left with a discretion to whether or not to apply the bar, was she?

[00:22:43] Speaker 04:
Once the factual findings had been made.

[00:22:45] Speaker 01:
Once the factual findings have been made and then supported that conclusion, I mean, we can have a hypothetical situation.

[00:22:52] Speaker 04:
I guess I'm trying to figure out whether it was really left open to her to apply the bar or not, because this language says, go through the YL analysis, if those are met, and then make the necessary findings of fact and conclusions of law, and determine whether the bar applies.

[00:23:10] Speaker 04:
And if you determine whether the bar applies, I think that means determine whether to apply the bar.

[00:23:15] Speaker 01:
Correct, yes.

[00:23:18] Speaker 01:
The daylight between the YL factors and the specific finding of frivolousness is small, if at all.

[00:23:31] Speaker 01:
But that's not the issue that the board was deciding here.

[00:23:34] Speaker 01:
They're leaving that question open another day.

[00:23:36] Speaker 01:
They might look at this and then say, yep,

[00:23:39] Speaker 01:
You're right, Your Honor, that daylight doesn't exist, and so after this, but they left that open in this case.

[00:23:44] Speaker 01:
That's not the issue.

[00:23:46] Speaker 02:
Go ahead, Jason.

[00:23:47] Speaker 02:
As I understand it, in this case, once the BIA remanded this to the IJA to make the frivolousness determination, the petitioner did not appeal that back to the BIA.

[00:24:05] Speaker 02:
They waited for the appeal period to expire and then appeal directly to the Ninth Circuit.

[00:24:10] Speaker 02:
Normally, if you don't appeal the decision, in effect, you've waived your right to appeal the issues made by the lower court.

[00:24:20] Speaker 02:
What happens in this case?

[00:24:22] Speaker 02:
Does that apply here, or is what the petitioner did appealing directly to us without first appealing the IJ decision back to the BIA?

[00:24:32] Speaker 02:
What role does that play?

[00:24:36] Speaker 01:
I don't believe that inherently

[00:24:39] Speaker 01:
Procedurally what they did is wrong or in fact your brief says we have jurisdiction.

[00:24:44] Speaker 01:
Yes.

[00:24:45] Speaker 01:
Yes, you have jurisdiction the issue I think is that they are not able to challenge the frivolousness determination and we actually consulted with Eeyore and asked like if

[00:25:00] Speaker 01:
you remand, does that undo the immigration judge's finding?

[00:25:04] Speaker 01:
And they said it would depend on what your instructions are on remand.

[00:25:08] Speaker 04:
Well, that's why I was asking your friend.

[00:25:11] Speaker 04:
I always like to ask both sides, what are we supposed to do here?

[00:25:15] Speaker 04:
I understand what you want us to do.

[00:25:17] Speaker 04:
You want us to say that the board's decision was correct.

[00:25:21] Speaker 04:
But let's assume that we think it's a statutory interpretation decision and that it's wrong as a matter of interpreting the statute.

[00:25:28] Speaker 04:
and that I don't buy your argument that it's really just a procedural decision.

[00:25:32] Speaker 04:
What do we do in this case?

[00:25:35] Speaker 04:
I mean, we can't say that the agency is precluded from looking at frivolousness just because the IJ didn't, because the BIA could say on appeal, either based on the record or

[00:25:49] Speaker 04:
in the exercise, you've abused your discretion in doing this on the equities.

[00:25:55] Speaker 04:
So I'm trying to figure out what's our roadmap from here if we buy the other side's argument.

[00:26:00] Speaker 01:
If you buy the other side's argument and remand, it could be as simple as the board needs to

[00:26:08] Speaker 01:
reconsider the procedure that it's establishing.

[00:26:11] Speaker 01:
It doesn't inherently undo what the immigration judge did.

[00:26:15] Speaker 01:
It doesn't necessarily solve any problem for petitioner.

[00:26:19] Speaker 01:
And in fact, given the board's analysis of this case,

[00:26:24] Speaker 01:
It seems unlikely.

[00:26:25] Speaker 01:
All it does is create some ping pong back and forth.

[00:26:28] Speaker 04:
Can I go back to the question that Judge Johnstone started with?

[00:26:32] Speaker 04:
If this, let's assume that this is not a statutory, only a statutory interpretation decision.

[00:26:38] Speaker 04:
If it were only a regulatory decision, tell me what regulation the, you say the board has the power to promulgate regulations in published decisions.

[00:26:50] Speaker 04:
Tell me, what case says that?

[00:26:53] Speaker 01:
What case says the board can promulgate?

[00:26:55] Speaker 04:
In other words, I don't see any regulation here that speaks to this issue.

[00:26:59] Speaker 04:
I do see a regulation that says the board can come up with procedures.

[00:27:03] Speaker 04:
Yes.

[00:27:03] Speaker 04:
So I'm trying to figure out, is this a board interpreting another regulation or promulgating one on its own?

[00:27:11] Speaker 01:
The board here is interpreting both the implementing regulation and the INA 1158D6.

[00:27:20] Speaker 04:
Yeah, and I was asking you to assume that it interpreted 1158 incorrectly.

[00:27:25] Speaker 04:
So if it interpreted 1158 incorrectly, what's the independent support for the procedure that it came up with?

[00:27:34] Speaker 01:
The implementing regulations would be the first spot.

[00:27:38] Speaker 01:
However, those I would also say... Those don't speak to this.

[00:27:40] Speaker 01:
Yeah, those are also silent on this issue.

[00:27:42] Speaker 01:
So I believe you would be deferring to the inherent authority to establish internal procedure.

[00:27:47] Speaker 03:
Ms.

[00:27:48] Speaker 03:
Tacklett, so I guess I was expecting the government and the attorney general to be a little more jealous of the discretion that the if confers.

[00:28:01] Speaker 03:
And so you're suggesting, so the government has no position on whether, when the DHS asks for a frivolousness finding

[00:28:10] Speaker 03:
that leads directly to a mandatory determination, not just the inquiry, but the determination.

[00:28:17] Speaker 03:
You don't think that's before us here and you have no position?

[00:28:22] Speaker 01:
When the government requests the inquiry, they are only requesting the inquiry.

[00:28:26] Speaker 01:
They are not then mandating that the frivolousness bar apply.

[00:28:31] Speaker 03:
But you're saying

[00:28:33] Speaker 03:
you don't have a position and you don't think it's before us, that the BIA can then say under one reading of this decision and a possible reading of some of these other decisions that once the inquiry is triggered, the determination is mandatory.

[00:28:49] Speaker 03:
And that last line of the decision.

[00:28:50] Speaker 01:
The determination on whether the bar applies, yes.

[00:28:55] Speaker 01:
Once you begin the inquiry, then... I'm sorry, are you asking... Then you're stuck with wherever it leads.

[00:29:01] Speaker 03:
There's no discretion at the end after the inquiry?

[00:29:05] Speaker 01:
I would say the discretion comes primarily in listening to the explanation under the fourth YL factor of the opportunity to explain, and that would inform whether or not the second YL factor.

[00:29:19] Speaker 03:
That's not discretion, that's compulsion.

[00:29:23] Speaker 03:
If the findings support, the if might suggest that even if the findings support,

[00:29:32] Speaker 03:
The attorney general can still, at the back end, exercise discretion on the determination.

[00:29:41] Speaker 03:
Your position is that there's no discretion.

[00:29:44] Speaker 01:
Given the mandatory shall after the language, I think that the statute and the regulations are clear that once that determination is made, there is no discretion.

[00:29:57] Speaker 01:
No.

[00:29:57] Speaker 03:
And the determination is mandatory under this decision.

[00:30:02] Speaker 03:
In other words, the findings

[00:30:05] Speaker 03:
If the findings support frivolousness, the IJ has no choice, the Attorney General has no choice, the Attorney General shall once the findings are made and the findings are required.

[00:30:17] Speaker 02:
Yes.

[00:30:19] Speaker 02:
Other questions?

[00:30:20] Speaker 02:
No.

[00:30:20] Speaker 02:
Very well.

[00:30:20] Speaker 02:
Thank you very much.

[00:30:21] Speaker 02:
So you have some rebuttal time, sir?

[00:30:28] Speaker 00:
Thank you, Your Honors.

[00:30:30] Speaker 00:
Your Honor, this decision

[00:30:33] Speaker 00:
is it cannot be reconciled with the BIA's decision in matter of XMC.

[00:30:39] Speaker 00:
Plain and simple, if we are having difficulty figuring things out, just imagine how immigration judges would feel.

[00:30:45] Speaker 00:
In this case, the record is clear that immigration judge felt compelled to enter a frivolous finding because the board left that question open.

[00:30:55] Speaker 03:
How do you respond to your friend's distinction of XMC as being differently situated procedurally?

[00:31:01] Speaker 00:
Your Honor,

[00:31:03] Speaker 00:
We believe the language in XMC is quite clear.

[00:31:07] Speaker 00:
It clearly says, the words clearly say that if the factors in matter of YL are satisfied, the consequences shall follow.

[00:31:18] Speaker 00:
I believe any reasonable reader of that

[00:31:21] Speaker 00:
decision would come to that conclusion.

[00:31:24] Speaker 04:
Did the board here say anything different?

[00:31:26] Speaker 04:
See, I think when you get to its last paragraph, it said, look, go back and you haven't looked at the YL factors.

[00:31:33] Speaker 04:
Look at the YL factors.

[00:31:35] Speaker 04:
If you make the necessary findings and fact and conclusions of law, then you must determine whether the bar applies.

[00:31:43] Speaker 04:
And it seems to me, I don't know if that left any discretion up to the

[00:31:48] Speaker 00:
But the board also said that we are not saying that immigration judge must enter.

[00:31:55] Speaker 00:
There would be no reason for it to say that if it was agreeing with the matter.

[00:31:59] Speaker 04:
Now I'm wondering, after listening to your friend, that what it was saying was it wasn't discussing the YL factors at that point.

[00:32:05] Speaker 04:
It was saying, merely finding that it was frivolous is not what requires you to enter the bar.

[00:32:14] Speaker 04:
what you required to enter the bar only after you analyzed all four of the YL factors, only one of which is the frivolousness of the application.

[00:32:23] Speaker 04:
Is that a fair reading of what they did?

[00:32:27] Speaker 00:
No, Your Honor.

[00:32:28] Speaker 00:
I do believe that the fair reading of the statute would be the Second Circuit approach.

[00:32:35] Speaker 00:
You have discretion to initiate frivolous analysis and also discretion after frivolous analysis

[00:32:41] Speaker 00:
to not enter a frivolous analysis.

[00:32:44] Speaker 00:
We believe that is the rule.

[00:32:45] Speaker 00:
And I believe that, yes, if the court were to conclude that the BIS decision is correct, then remand would be appropriate for the board to address whether, even if YL factors are satisfied, does the judge have discretion not to enter?

[00:33:01] Speaker 00:
Very well.

[00:33:02] Speaker 02:
Thank you very much for your argument.

[00:33:04] Speaker 02:
The case of Al-Qaeda versus Garland is submitted.

[00:33:09] Speaker 02:
Before we adjourn for the day, I just want to say to the students, you've been very patient.

[00:33:15] Speaker 02:
This has been a very technical argument day.

[00:33:17] Speaker 02:
We didn't have any murder cases for you or anything like that.

[00:33:20] Speaker 02:
Sometimes we have those.

[00:33:22] Speaker 02:
But our law clerks will meet with you while we are in conference, and the judges will come out, and if you want, we can talk about things other than immigration cases.

[00:33:32] Speaker 02:
Okay.

[00:33:34] Speaker 02:
I'm sorry.

[00:33:35] Speaker 02:
Oh, right.

[00:33:37] Speaker 02:
We also are here by are submitting the case of USA versus state of Idaho.

[00:33:44] Speaker 02:
Also Maldonado.

[00:33:48] Speaker 02:
Got one more.

[00:33:49] Speaker 02:
Fuentes Maldonado versus Garland are is also submitted.

[00:33:53] Speaker 02:
The court stands adjourned for the day.

[00:33:56] Speaker 04:
All right.