[00:00:16] Speaker 03:
Good afternoon, Your Honors, and may it please the Court.

[00:00:19] Speaker 03:
My name is Lauren Cole.

[00:00:21] Speaker 03:
I am pro bono appointed counsel for the petitioner, Alalia Asefa-Buru.

[00:00:26] Speaker 03:
With the Court's permission, I would like to reserve three minutes of my time for rebuttal.

[00:00:32] Speaker 03:
This case concerns the availability of special rule cancellation of removal and the complementary domestic violence waiver authority, ameliorative statutory

[00:00:51] Speaker 03:
However, the BIA and the argument responded adopts endorsed an overly restrictive and incorrect reading of the waiver authority, which precludes waiver of domestic violence convictions if they are also CIMTs or aggravated felonies.

[00:01:10] Speaker 03:
That is wrong for two main reasons.

[00:01:36] Speaker 03:
good moral character relief and incorporated the waiver authority into cancellation of removal and adjustment of status proceedings.

[00:01:52] Speaker 02:
Your friends briefs say that if we were to adopt your interpretation

[00:02:07] Speaker 02:
convicted of an aggravated felony would do no work at all.

[00:02:11] Speaker 02:
That is, the statute in your interpretation would mean exactly the same thing if those words were present in subsection four and if those words were totally removed from subsection four.

[00:02:25] Speaker 02:
Is that correct?

[00:02:26] Speaker 02:
No, Your Honor, that's not correct.

[00:02:28] Speaker 02:
So what work in your interpretation, what work did the words and has not been convicted of an aggravated felony

[00:02:40] Speaker 03:
of the statute, that phrase, and has not been convicted of an aggravated felony, it's a belt and suspenders approach by Congress.

[00:02:50] Speaker 03:
So it's making absolutely clear that if your aggravated felony is not subject to the domestic violence waiver, i.e.

[00:02:59] Speaker 03:
if you were convicted of an aggravated felony for armed robbery, for instance, the waiver authority does not touch that.

[00:03:12] Speaker 02:
If you have the statute as it's written and the statute removing the words and has not been convicted of an aggravated felony, would there be

[00:03:40] Speaker 03:
So, Your Honor, I understand, Your Honor, our reading of the statute, even if you say that there's some redundancy in our reading of the statute, it doesn't mean that those words are completely surplusage.

[00:03:57] Speaker 03:
So, they do have meaning under the statute.

[00:04:21] Speaker 03:
So I would answer, Your Honor, in that it's not necessarily different, but Congress is making clear that if you have an aggravated felony conviction for something that isn't a crime of domestic violence, then that conviction would not be waivable under the domestic violence waiver by virtue of the statute.

[00:04:41] Speaker 04:
Your Counsel, let me approach this from a little different direction.

[00:04:46] Speaker 04:
I realize that the government argues this

[00:04:50] Speaker 04:
statute is unambiguous, and that you also argue that the statute is unambiguous, that there is a reading that, at least in some people's view, renders the statute ambiguous, and that is that the statutory references that are in that the prior phrase is not deportable under paragraphs

[00:05:20] Speaker 04:
1G or 2 through 4 of Section 1227A include aggravated felonies.

[00:05:32] Speaker 04:
But then those felonies are subject to paragraph 5.

[00:05:40] Speaker 04:
And paragraph 5 says that the waiver provision, the special rule,

[00:05:50] Speaker 04:
may apply to the authority in 1227A7 may apply to those aggravated felonies.

[00:06:04] Speaker 04:
But then, and it could have ended there, but then it goes on to say it has not been convicted of an aggravated felony, which you could say is

[00:06:18] Speaker 04:
There would, in answer to Judge Gold's questions, you would say, yes, there are people for whom that would make a difference, whether that language was in there or not, which is... I don't think it was my question.

[00:06:37] Speaker 04:
For me?

[00:06:38] Speaker 04:
It was not my question.

[00:06:40] Speaker ?:
Oh.

[00:06:41] Speaker 04:
It was Judge Bennett's question.

[00:06:43] Speaker 04:
Oh, I'm sorry.

[00:06:44] Speaker 04:
I'm sorry.

[00:06:46] Speaker 04:
I'm confused.

[00:06:48] Speaker 04:
I'm sorry.

[00:06:49] Speaker 04:
I'm looking at the little boxes on the video screen.

[00:06:55] Speaker 04:
I'm sorry.

[00:06:56] Speaker 04:
Yes, Judge Bennett.

[00:06:59] Speaker 04:
If you're convicted of a negative felony, you're both subject to paragraph 5, and you're not subject to paragraph 5, which would render the statute ambiguous.

[00:07:13] Speaker 04:
But you didn't argue that, I don't think.

[00:07:18] Speaker 04:
a reading of the statute that's out there.

[00:07:22] Speaker 04:
I'm wondering what your reaction is to that.

[00:07:24] Speaker 03:
Yes.

[00:07:25] Speaker 03:
Yes, Your Honor.

[00:07:25] Speaker 03:
I think we do.

[00:07:27] Speaker 03:
We say that the statute is clear, but at the very least, it's ambiguous because it both says and has not been convicted of an aggravated felony subject to paragraph five and has not been convicted of an aggravated felony.

[00:07:40] Speaker 03:
And in order to construe, to make sense of that statutory language, we look to the rest of

[00:07:49] Speaker 03:
added to the scheme that Congress was trying to legislate here.

[00:07:53] Speaker 03:
As this court has said, the words of a statute are dead weight without their purpose to animate them.

[00:07:59] Speaker 03:
So if we look at what Congress was trying to do here, they wanted special rule cancellation of removal to be available to battered immigrant spouses.

[00:08:07] Speaker 03:
And one of the ways that they went about doing that is by creating the waiver authority itself.

[00:08:13] Speaker 03:
And if you look at the text of the waiver authority, it applies to domestic violence and stalking crimes.

[00:08:18] Speaker 03:
And it specifically contemplates that you could cause someone serious bodily injury, which would very likely get you an aggravated felony conviction and yet still be eligible for a waiver.

[00:08:32] Speaker 03:
And the reason for that is because the waiver authority is framed in the disjunctive.

[00:08:44] Speaker 03:
order that was meant to protect them.

[00:08:46] Speaker 03:
They were convicted of a crime that did not involve serious bodily injury or they acted in self defense.

[00:08:52] Speaker 03:
If you could not cause serious bodily injury and thereby likely sustain an aggravated felony conviction, there wouldn't be no reason to have the self defense provision.

[00:09:01] Speaker 03:
Everyone that Congress intended to qualify

[00:09:03] Speaker 03:
could qualify under the other provision that provides that you didn't cause serious bodily injury.

[00:09:10] Speaker 03:
So a reading that reads out aggravated felonies essentially renders that provision of the waiver authority superfluous.

[00:09:25] Speaker 03:
In order to provide a miliardive relief to battered immigrant women.

[00:09:29] Speaker 03:
You look at the complementary good moral character relief that Congress legislated Congress recognize that a conviction under a paragraph, a four that would render you.

[00:09:51] Speaker 03:
that you are a person of good moral character.

[00:09:54] Speaker 03:
And so subparagraph C takes care of that.

[00:09:58] Speaker 03:
It essentially says that a conviction that is waivable, or a conviction that doesn't present a bar pursuant to paragraph A4 of 1229, BB2, will also not provide a bar for a person of good moral character.

[00:10:19] Speaker 03:
And then you also have the incorporation provision which Congress enacted to make it clear that the waiver authority also applies in the context of adjustment of status proceedings and removal proceedings.

[00:10:34] Speaker 03:
So you step back and you look at the statute, and here Congress is trying to legislate something that would confer a real benefit to battered immigrant women.

[00:10:46] Speaker 03:
They wouldn't do that.

[00:10:54] Speaker 03:
on one provision of the statute.

[00:10:56] Speaker 03:
So when we step back and look at the statute as a whole and read it in context, it becomes clear that the best way to make sense of that provision that has not been convicted of an aggravated felony is that it applies

[00:11:12] Speaker 03:
Even if you are a battered immigrant spouse, but you have committed a violent felony that isn't subject to the waiver authority, had nothing to do with protecting yourself against your abuser or trying to leave your abusive relationship.

[00:11:27] Speaker 03:
You committed armed robbery, something of that nature.

[00:11:56] Speaker 03:
what essentially got the waiver authority and contravened Congress's purpose.

[00:12:00] Speaker 03:
The courts have deemed it unreasonable to conclude that Congress meant to create an entitlement with one hand and snatch it away with the other.

[00:12:08] Speaker 03:
And they avoid constructions of statutes that void the statute where Congress clearly meant there to be beneficiaries.

[00:12:18] Speaker 03:
And here, that is the case, because almost all crimes of domestic violence

[00:12:29] Speaker 03:
So if you accept that if a crime of domestic violence also implicates another ground of deportability under 1227A2, that's not waivable, then that essentially defeats the entire purpose of the waiver authority.

[00:12:48] Speaker 03:
And if there are no further questions, I will try to reserve the rest of my time for a moment.

[00:12:53] Speaker 04:
I just have another question, I'm sure, that Judge Minnan will let you.

[00:12:59] Speaker 04:
We have additional time.

[00:13:02] Speaker 04:
How does your interpretation of the statute apply to your client?

[00:13:10] Speaker 03:
Yes, so our interpretation of the statute applies to my client.

[00:13:24] Speaker 03:
And she defended herself against her abuser, but was convicted of an aggravated felony.

[00:13:33] Speaker 03:
And so under the waiver authority, the Attorney General can waive her conviction.

[00:13:51] Speaker 03:
that even though she sustained a conviction, would Congress well recognize that battered immigrant women are often convicted when they defend themselves against their abusers?

[00:14:02] Speaker 03:
The Attorney General can make a finding that she still acted in self-defense and would be eligible for the domestic violence waiver.

[00:14:10] Speaker 04:
So even if she had proffered a self-defense defense at the trial and that was rejected by the jury,

[00:14:21] Speaker 04:
the, under this statute, the attorney general could reweigh all that evidence and say, no, they get a waiver for immigration purposes.

[00:14:34] Speaker 03:
Yes, Your Honor, the attorney general could consider all evidence and understanding, you know, the sort of issues that battered immigrant spouses face in the criminal justice system and still conclude that they acted in self-defense.

[00:14:50] Speaker 04:
All right, thank you.

[00:14:51] Speaker 04:
I'm sorry for intruding upon your time, but again, we'll have to rely on Judge Finitz, the racist here.

[00:15:01] Speaker 02:
Judge Gould, do you have any questions?

[00:15:04] Speaker 02:
No.

[00:15:05] Speaker 02:
All right, thank you.

[00:15:05] Speaker 02:
We'll give you some time on rebuttal.

[00:15:08] Speaker 02:
Thank you.

[00:15:09] Speaker 02:
Thanks very much.

[00:15:09] Speaker 02:
We'll hear from the Attorney General.

[00:15:23] Speaker 05:
It pleased the court.

[00:15:24] Speaker 05:
Claire Workman for the Attorney General.

[00:16:00] Speaker 05:
waiver upon first glance.

[00:16:04] Speaker 04:
Well, that's because Congress was long

[00:16:33] Speaker 05:
And this court has already concluded in Jaime Cardenas that only domestic violence offenses qualify for the waiver.

[00:16:46] Speaker 05:
So petitioners' understanding of the statute is inconsistent with that decision because if it's plain, as the court has said, that

[00:16:58] Speaker 05:
only domestic violence offense is qualified for the waiver, why would Congress need to add language that says, oh, then any aggravated felony that is not also a domestic violence offense is not waivable?

[00:17:14] Speaker 05:
It's already understood.

[00:17:16] Speaker 05:
And so that phrase, and has not been convicted of an aggravated felony, is the key language here.

[00:17:30] Speaker 04:
It says 1227A of this title, subject to paragraph five, and the classes of deportable aliens under section 1227 include any alien who is convicted of an aggravated felony at any time after admission.

[00:17:54] Speaker 04:
So it seems like it's saying aggravated felony, subject to paragraph five,

[00:18:00] Speaker 04:
and has not been convicted of an agraragic felony.

[00:18:06] Speaker 04:
So it seems to be redundant there.

[00:18:09] Speaker 05:
No, Your Honor.

[00:18:10] Speaker 05:
So just to give you one example of one of the grounds of removability that's included is specifically mentioned.

[00:18:17] Speaker 05:
It's 1227A1G, which involves marriage fraud.

[00:18:22] Speaker 05:
There does not seem to be a way that marriage fraud would

[00:18:31] Speaker 05:
That would be, even though it's included in the ground of inadmissibility and removability that is then the phrase subject to paragraph B5, that is not one of the grounds that would actually be subject to paragraph B5 in reality because this court has said and recognized that the plain language is clear,

[00:18:58] Speaker 05:
go down through the list, there are so many of those that it's hard to imagine how they would involve domestic violence.

[00:19:39] Speaker 05:
not the Attorney General who gets to

[00:20:13] Speaker 05:
would be superfluous, which is, as I mentioned before, consistent with this court's, James Cardena's, decision that only domestic violence offenses can qualify for the waiver.

[00:20:34] Speaker 05:
And regarding petitioner's point that

[00:20:48] Speaker 05:
not worn out in reality and

[00:21:20] Speaker 05:
And so that basically leaves any offenses that are stalking violation of a protection order or any state offense that qualifies as a domestic

[00:21:53] Speaker 05:
But it does apply, for example, to California Penal Code section 273.5, or it can apply to that.

[00:22:01] Speaker 05:
And there are several other statutes recently at this court recognized in October 2023, unpublished decision.

[00:22:28] Speaker 05:
misdemeanor violation statute that was violated when a gentleman violated his ex-wife's protection order.

[00:22:43] Speaker 05:
There's also a California stalking conviction.

[00:22:45] Speaker 05:
So while the government wholeheartedly agrees that VAWA overall is an ameliorative

[00:22:59] Speaker 05:
ameliorative purpose, you first don't actually get to look at the intent of Congress if the statutory language is unambiguous as it is here.

[00:23:13] Speaker 05:
But even if we were to consider that the VAWA provisions are sprinkled throughout the INA and

[00:23:28] Speaker 05:
do apply, particularly in the self-petitioning context in adjustment of status, and also even baked into the special

[00:24:10] Speaker 05:
hardship to a qualifying relative.

[00:24:14] Speaker 05:
So the the ameliorative aspects of VAWA are manifest throughout the INA provisions and that also has to be balanced with the fact that aggravated felonies are

[00:24:41] Speaker 05:
and that Congress has intended that very, very limited, actually, if any relief is available, usually it's deferral into the Convention Against Torture, which Petitioner did seek when the immigration judge pre-terminated her

[00:25:16] Speaker 05:
If the court has no further questions, based on the unambiguous claim text of the statute, petitioners' aggravated felony conviction renders her ineligible for VAWA cancellation of removal, and this court should deny the petition for a review.

[00:25:32] Speaker 01:
Judge Ward-Lott, do you have any questions?

[00:25:35] Speaker 01:
No.

[00:25:36] Speaker 01:
Judge Goldblum?

[00:25:38] Speaker 01:
I have a couple of very simple questions for counsel.

[00:25:42] Speaker 01:
To help counsel, what types of felonies

[00:25:50] Speaker 05:
Oh, um, well, the aggravated felonies considered by the INA are listed in Section 1101A43, so there's a whole slew of them.

[00:26:06] Speaker 05:
And so it is possible to have a felony offense that does not also count as an aggravated felony.

[00:26:27] Speaker 01:
a crime whether or is it involving moral turpitude?

[00:26:34] Speaker 05:
Oh, if I understood your question correctly, are you asking that, are you asking about crimes involving moral turpitude and how they relate to

[00:26:55] Speaker 01:
in the statute, between the terms, times a world trip or two, an aggravated felony.

[00:27:02] Speaker 05:
Oh, I see, Your Honor.

[00:27:04] Speaker 05:
They're in separate provisions, so I...

[00:27:29] Speaker 05:
court does not even have to worry about crimes involving moral turpitude.

[00:27:33] Speaker 05:
I will say this court has recognized, for example, that the California Penal Code 273.5 that I mentioned often qualifies for this waiver, that it is categorically a crime of domestic violence, but not categorically

[00:27:57] Speaker 05:
a crime involving moral turpitude or an aggravated felony.

[00:28:04] Speaker 05:
So that is one example of a conviction that can be waivable under the 1227A7 provision.

[00:28:21] Speaker 04:
Thank you.

[00:28:23] Speaker 04:
That made me think of one more question.

[00:28:28] Speaker 04:
Counsel, you repeatedly refer to domestic violence offenses being qualified for the waiver.

[00:28:37] Speaker 04:
And you cited a case, so I want to know, does it have to be a domestic violence offense?

[00:28:49] Speaker 04:
It's the, I don't want to say aggravability, but it's the crime because

[00:28:59] Speaker 04:
Subsection 7A, blue eye, BB, says there must be a connection between the crime and the aliens having been battered or subjected to extreme cruelty.

[00:29:19] Speaker 04:
So what if the alien, the spouse, the victimized spouse,

[00:29:31] Speaker 04:
to extreme cruelty, and then out of fear of future violence, or as they're trying to maybe escape the relationship, they knife the spouse

[00:29:58] Speaker 04:
That isn't necessarily a domestic violence offense, is there?

[00:30:34] Speaker 02:
Thank you, Your Honor.

[00:30:38] Speaker 05:
So that is under the Categorical Approach to Cotley v. Ashcroft, 371 F.3.6.13.

[00:30:44] Speaker 05:
Okay, we understand Categorical.

[00:30:48] Speaker 04:
But how can we say that it depends on what the state conviction is when in Subsection A it says the Attorney General is not limited by the criminal court record

[00:31:07] Speaker 04:
can look to all the circumstances and not necessarily be limited to the precise provision under which the alien was convicted.

[00:31:25] Speaker 05:
Oh, Your Honor, we read that provision to a

[00:31:35] Speaker 04:
Is it limited to self-defense?

[00:31:38] Speaker 04:
I mean, it seems there's an understanding of domestic violence.

[00:31:46] Speaker 04:
There could involve many different things that were not limited to self-defense because someone could be reacting to past abuse that they've suffered.

[00:32:04] Speaker 05:
Oh, I see what you're saying, Your Honor.

[00:32:06] Speaker 05:
So, I think that provision is intended to mean that while the Attorney General can't go beyond the record of conviction in determining... Well, it can.

[00:32:23] Speaker 04:
It can go.

[00:32:24] Speaker 04:
The Attorney General may go beyond the record of convictions, as the statute says.

[00:32:30] Speaker 05:
Well, yes, Your Honor, but I'm not sure.

[00:32:33] Speaker 05:
I think...

[00:32:35] Speaker 05:
that might mean, for example, in this particular case on this immigration record, there is no evidence in the record that Petitioner was subject to abuse.

[00:32:47] Speaker ?:
There are allegations, there are claims, there are attorney statements in briefs.

[00:32:54] Speaker 05:
There is a probation report that is not in the record, but that's referenced

[00:33:06] Speaker ?:
claims of abuse or at least some of them have not been corroborated sufficiently.

[00:33:15] Speaker 05:
So I think that kind of finding leaves room for if someone has not sufficiently corroborated their claims of abuse or self-defense or whatever it may be in criminal court, this provision allows them to come back to immigration court

[00:33:38] Speaker 05:
that okay now you have sufficiently corroborated your claim so I think it's it's meant to

[00:34:14] Speaker 03:
their respondent.

[00:34:17] Speaker 03:
So one of the points is with respect to redundancy.

[00:34:25] Speaker 03:
So the Supreme Court has said that redundancy is not a silver bullet, it's at most a clue, and essentially respondent has hung all of their argument on redundancy, but the Supreme Court cautions that when we interpret a statute

[00:34:55] Speaker 03:
And that's what we have here we have essentially a construction that's threatening to make the waiver authority and applicable.

[00:35:03] Speaker 03:
And the reason for that and you know picking up on the question from from judge gold.

[00:35:16] Speaker 03:
domestic violence would also be a crime involving moral turpitude, and many of them are aggravated felonies.

[00:35:23] Speaker 03:
Under the categorical approach, a crime of domestic violence under the INA is a crime of violence against a person with a close domestic relationship, and in this case, a spouse.

[00:35:35] Speaker 03:
If you look to, and then the definition of a crime of violence is

[00:35:53] Speaker 03:
on that it's a crime of domestic violence, which involves the relationship with a spouse.

[00:35:59] Speaker 03:
You compare that to how courts in this jurisdiction have defined crimes involving moral turpitude.

[00:36:09] Speaker 03:
You compare that to how courts have defined crimes involving moral turpitude, and courts here say a non-fraud crime involving moral turpitude is willful

[00:36:26] Speaker 03:
to cause harm.

[00:36:27] Speaker 03:
Those line up pretty much directly, and courts have also recognized that when you have a crime of violence that involves a spouse, that is almost always going to be considered a crime involving moral turpitude.

[00:36:41] Speaker 03:
So if you cannot waive the other grounds of inadmissibility when you have a conviction for domestic violence, that makes the waiver authority completely toothless.

[00:36:52] Speaker 03:
And then finally, Your Honor,

[00:37:03] Speaker 03:
statute is ambiguous, the appropriate procedural move here is to remand back to the agency for further consideration.