[00:00:17] Speaker 02:
Good morning, Charles.

[00:00:17] Speaker 03:
Good morning.

[00:00:19] Speaker 03:
If it will please the court, Gabriel Leva on behalf of the petitioner, Marco Bracamonte-Palma.

[00:00:27] Speaker 03:
Loper Brite Enterprises really gave all of the parties a lot to think about on this case because the driving argument of the respondent is that matter of shock to is outside the bounds of the language of the INA when reviewing whether or not

[00:00:44] Speaker 03:
His conviction for interfering with the judicial process qualifies as a disqualification for cancellation removal under 1227A2EII.

[00:00:57] Speaker 03:
Now, following that, there are three main points I want to make.

[00:01:02] Speaker 03:
The ob-shock-to analysis is not authorized by the INA.

[00:01:07] Speaker 03:
The categorical analysis is the stare decisis of this court.

[00:01:11] Speaker 03:
and the focus must be on court determinations.

[00:01:15] Speaker 03:
So the rule is following the statutory language of the INA.

[00:01:22] Speaker 03:
Now, previously, and going way back, because of Loper-Brite, there's Diaz-Currasco that reviewed under Brand X and Chavron-Deferin saying, OK, the categorical analysis no longer applies because the agency says it shouldn't apply, and they have a different way of going.

[00:01:39] Speaker 03:
But if we go prior,

[00:01:41] Speaker 03:
precedent was, I hope I'm saying this right, Salai v. Holder, which is 572, F.3rd, 975 from 2009, and Alanis Alvarado v. Holder, 558, F.3rd, 833, 2009, was argued both at the immigration court level and to the BIA as being the correct analysis to apply in this case.

[00:02:08] Speaker 03:
And that's what the Ninth Circuit had held previously prior to.

[00:02:11] Speaker 01:
I mean, let's just look at the statutory text because normally the trigger for the categorical approach is conviction for an offense.

[00:02:22] Speaker 01:
And an offense is normally defined by its elements.

[00:02:25] Speaker 01:
So if Congress says conviction for an offense, that means we look at the offense and the elements.

[00:02:32] Speaker 01:
That's not what you see when you look at this clause is rather we see

[00:02:39] Speaker 01:
whom the court determines has engaged in conduct, which says not looking at elements, but what did he do in the specific facts of the case?

[00:02:52] Speaker 01:
It seems, the language seems to point exactly away from the categorical approach.

[00:02:57] Speaker 03:
Well, there's firstly, to be disqualified for the relief that he was seeking, it says it must be a conviction under 212A2 or 237A2.

[00:03:09] Speaker 03:
Now, going then to the next level to 1227A23, there is a prior Ninth Circuit precedent, Gonzales v. Ashcroft, and basically that found that there was language in there that says that

[00:03:27] Speaker 03:
the violation of the restraining order must be after an admission.

[00:03:31] Speaker 03:
And so this court basically said, oh, well, that doesn't matter.

[00:03:34] Speaker 03:
I disagree with that, but because the responder is only inadmissible rather than deportable.

[00:03:40] Speaker 03:
But they already went to that.

[00:03:41] Speaker 03:
They said, this is a conviction.

[00:03:43] Speaker 03:
We have to review it like a conviction.

[00:03:45] Speaker 03:
So under that analysis, that's why the court initially applied the categorical analysis, because based on the disqualifying language

[00:03:55] Speaker 03:
240 AB, it says that it needs to be a conviction.

[00:03:59] Speaker 03:
So then we move on to the next part of that.

[00:04:02] Speaker 01:
The relevant language here is 1227 A to E2.

[00:04:08] Speaker 01:
Yes.

[00:04:08] Speaker 01:
And that doesn't say conviction, does it?

[00:04:12] Speaker 03:
No, it's modified by 240 AB, which requires it to be a conviction.

[00:04:18] Speaker 01:
How is it modified by that?

[00:04:20] Speaker 01:
I don't see that.

[00:04:21] Speaker 01:
It has no cross-reference.

[00:04:23] Speaker 01:
It just says an alien who at any time after admission isn't joined under protective order and then engages in certain conduct.

[00:04:32] Speaker 01:
That's what it describes.

[00:04:34] Speaker 03:
There's two portions of the statute that support my argument.

[00:04:37] Speaker 03:
Number one, it says court determines.

[00:04:40] Speaker 03:
So that means it's telling the reviewer to look at the court determinations.

[00:04:44] Speaker 03:
and that has to go directly to the record of proceeding.

[00:04:48] Speaker 03:
That's the only way you can get the information for a court determination.

[00:04:51] Speaker 01:
That's different from the categorical approach argument.

[00:04:55] Speaker 01:
I'm just trying to understand if we're supposed to look at this issue again afresh after Loperbright, I just don't see where in the statutory language that we have to apply here that it's an instruction to apply the categorical approach.

[00:05:14] Speaker 01:
to be the opposite.

[00:05:19] Speaker 03:
Going all the way back to Taylor and Shepard, there was never any statutory language that said this is a categorical analysis.

[00:05:25] Speaker 03:
It's a creation of the Supreme Court.

[00:05:28] Speaker 03:
And the whole purpose is to take any biases of the courtroom out of the analysis to determine as a legal matter whether or not a person is qualified.

[00:05:38] Speaker 03:
And those cases had to do with

[00:05:43] Speaker 03:
the sentencing guidelines for immigration in which it's applied whether or not somebody is deportable or admissible or eligible.

[00:05:50] Speaker 03:
And so I'll go back to the requirements of 240 AB is that it's, well you have to have the 10 years, you have to be a person of good moral character, you cannot have any disqualifying convictions and it says conviction.

[00:06:07] Speaker 03:
So that portion is what we're trying to determine if his conviction

[00:06:12] Speaker 03:
would disqualify him from arguing that it would cause his children hardship if he were deported from the United States.

[00:06:19] Speaker 03:
So I think that part of the law is Congress saying to the court, look at the conviction.

[00:06:25] Speaker 03:
Now, it's up to the court to decide if the best way to determine whether or not his conviction is a disqualifying one is the categorical analysis, because there is a long line of stare decisis there in order to avoid the review

[00:06:40] Speaker 03:
of evidence that may be come up for relitigation.

[00:06:44] Speaker 03:
And the immigration court is not there to relitigate all of the things that happen in a criminal court or a civil court.

[00:06:51] Speaker 03:
Their only job is to determine whether or not he's eligible.

[00:06:55] Speaker 03:
So on that basis, OB-SHACTO comes up with its own analysis that just is probative and reliable.

[00:07:02] Speaker 03:
So if the court were to follow OB-SHACTO, our argument is that the agency did not follow its own rule of reviewing probative and reliable evidence because they did no analysis of whether or not the facts that they were using were probative and reliable.

[00:07:20] Speaker 03:
So there's another level to this that is important.

[00:07:27] Speaker 03:
The violation of the restraining order, or under Arizona law, is interfering with judicial proceedings.

[00:07:34] Speaker 03:
Under the definition of domestic violence offense, they have violence, repeated harassment.

[00:07:40] Speaker 03:
They also include things like criminal damage and disorderly conduct.

[00:07:47] Speaker 03:
And finally, one of those things on the list says interfering with judicial proceedings.

[00:07:52] Speaker 03:
If we look at the statute of interfering with judicial proceedings, it does not require that you violate any specific portion of a restraining order.

[00:08:03] Speaker 03:
It just says that you just have to disobey or resist.

[00:08:06] Speaker 03:
As a matter of fact, from this case, the petitioner specifically told the police,

[00:08:13] Speaker 03:
I am not accepting service, I didn't sign it, I'm not acknowledging the validity of this order.

[00:08:20] Speaker 03:
So his actual violation of the restraining order was his resistance to it, not violating any part of anything that protected the protected person.

[00:08:33] Speaker 03:
And going back to the court documents,

[00:08:37] Speaker 03:
In the signed plea and sentencing, it only notes Anna Murrieta as a protected person, and that's what it was intended for.

[00:08:45] Speaker 03:
If the court is going to review under Obshaktu whether or not the evidence is reliable, that police report states that he didn't go to her residence, he had no contact with her, and he once again kept saying that he didn't acknowledge the validity of the order.

[00:09:02] Speaker 01:
Do you agree that a violation of the no

[00:09:06] Speaker 01:
contact requirement in the order at issue here counts as a portion of a protective order that involves protection against credible threats of violence, repeated harassment, or bodily injury?

[00:09:23] Speaker 03:
If the violation was that he contacted Anna Murrieta, he did not contact her.

[00:09:42] Speaker 03:
I just want to say that in the end, we're relying on the statutory language.

[00:09:47] Speaker 03:
And the theme of the Supreme Court recently in reviewing also immigration cases is to go to the plain language of the statute.

[00:09:56] Speaker 03:
It says court determination in there about a violation of a portion that was intended to protect, in this case, Anna Murrieta.

[00:10:04] Speaker 03:
The problem with obshakto is it takes

[00:10:10] Speaker 03:
the focus off of the actual court documents and the conviction and the court determinations.

[00:10:16] Speaker 03:
It puts a focus on any other type of evidence that may be submitted.

[00:10:21] Speaker 03:
And this is important with Marielena, I can't say that word, Marielena and also Pereira, that they're basically saying, look, we have the burden.

[00:10:35] Speaker 03:
And in this case, I think the petitioner did a pretty good job.

[00:10:37] Speaker 03:
He got all the police reports.

[00:10:38] Speaker 03:
He got everything he submitted at all.

[00:10:40] Speaker 03:
Now the government points out, well if he didn't like that he shouldn't have submitted it.

[00:10:43] Speaker 03:
He doesn't have a choice anymore.

[00:10:45] Speaker 03:
That's what he has to do.

[00:10:47] Speaker 03:
So then it's on the court to go through that information

[00:10:50] Speaker 03:
to make proper and fair determinations about it.

[00:10:53] Speaker 03:
And here, they skip straight to the information that they think supports that he violated that restraining order and overlook all other information within that record of proceeding.

[00:11:05] Speaker 03:
And that's why I'm saying that Obshakto is overly broad and not authorized by the statute that specifically says

[00:11:13] Speaker 03:
you must consider the court determinations instead of us arguing constantly about what is in the police report.

[00:11:20] Speaker 03:
So for that reason, it has to be remanded.

[00:11:22] Speaker 03:
I would say that the court needs to find that they're not bound by obshakto because Diaz Kurasko is specifically, it specifically turns on Brand X.

[00:11:35] Speaker 03:
And Brand X is no longer needed anymore and no longer useful.

[00:11:39] Speaker 03:
And the prior stare decisis before that Brand X decision giving deference to the agency was Alanis Alvarado, was Salai, and both of those applied the categorical analysis.

[00:11:53] Speaker 03:
So I think the proper thing to do is to apply that stare decisis, send it back to the agency in order to apply that proper analysis for further consideration.

[00:12:05] Speaker 02:
doesn't require conviction?

[00:12:09] Speaker 03:
In this case, yes, because to show eligibility, we're dealing with a conviction, a requirement of a conviction.

[00:12:19] Speaker 03:
Now, there is this other side of it.

[00:12:21] Speaker 03:
Obshokto did state, look, Nia Wajon, which is a Supreme Court case that goes to the issue of circumstance-specific review of a conviction, because they said in that case, I think it had to do with the $10,000 limit on fraud.

[00:12:39] Speaker 03:
And so they said, well,

[00:12:41] Speaker 03:
It's not an element of the conviction, so we have to look to that.

[00:12:44] Speaker 03:
And Congress put specifically the $10,000 thing about fraud.

[00:12:49] Speaker 03:
But Obshakto also didn't go down that route either.

[00:12:53] Speaker 03:
So I don't know where they can say there's two different analysis that you use in order to determine whether or not it's a disqualifying conviction.

[00:13:01] Speaker 03:
One is a categorical analysis.

[00:13:03] Speaker 03:
And then the Supreme Court also laid out the circumstance-specific analysis.

[00:13:08] Speaker 03:
They didn't use either.

[00:13:10] Speaker 03:
They just came up with their own.

[00:13:11] Speaker 03:
And I don't know where they get that from.

[00:13:13] Speaker 03:
It's just probative and reliable.

[00:13:15] Speaker 03:
And if that is the case, they need to do a proper analysis to give full respect to the entire document to determine whether or not the things they're relying on are actually probative and reliable, which is an issue with domestic violence issues because there is a lot that can be said and done in police reports.

[00:13:35] Speaker 02:
So if we're on de novo review and we're not affording Brandex deference or Chevron deference, then de novo, we interpret the statute and decide what meets the statute.

[00:13:49] Speaker 02:
Would you agree?

[00:13:49] Speaker 03:
Yes.

[00:13:52] Speaker 03:
Thank you.

[00:13:53] Speaker 03:
I'll reserve any time if necessary.

[00:14:09] Speaker 00:
Good morning and may it please the court.

[00:14:11] Speaker 00:
My name is Katherine McKinney and I represent the respondent Attorney General Merrick Garland in this matter.

[00:14:17] Speaker 00:
Your honors, this court should deny the petition for review.

[00:14:20] Speaker 00:
Following the approach endorsed by the court in Diaz, the agency correctly concluded that the petitioner was convicted of violating a protective order as prescribed in 8 U.S.C.

[00:14:30] Speaker 00:
section 1227 A2E double I. And just to turn quickly, I guess, to the crux of the matter today, which is the impact of Loeber-Bright,

[00:14:39] Speaker 00:
Um, this court has already decided in DS that the matter of, of Schott co framework applies to this determination.

[00:14:49] Speaker 00:
So that's a presidential decision of this court that is binding on the parties of pursuant.

[00:14:56] Speaker 01:
It's a little bit odd because, you know, he's saying we actually had prior authority that went the other way.

[00:15:02] Speaker 01:
And then we acquiesced in basically the agencies overruling of our precedent under brand X.

[00:15:10] Speaker 01:
And now that the whole regime is up in the air, why shouldn't we be required to go back to our prior law?

[00:15:19] Speaker 01:
So this isn't, I mean, I've written an awful lot into one sentence of Loper-Brite that says to apply statutory stare decisis.

[00:15:29] Speaker 01:
And if we apply statutory stare decisis here in light of Brand X's and Chevron's overruling, where does that take us?

[00:15:38] Speaker 00:
So it's not just a matter of looking at one sentence in Loper-Bright.

[00:15:43] Speaker 00:
In Loper-Bright, we overruled Chevron.

[00:15:46] Speaker 00:
But then they made clear that the decisions relying on Chevron were not to be called into question merely because of Loper-Bright.

[00:15:55] Speaker 00:
And that's the only thing we have here.

[00:15:57] Speaker 00:
The petitioner notes that in this case, it's not just a matter of Upshot Code, which was construing 122

[00:16:06] Speaker 00:
But here we also have the removability, the fact that the applicant is applying for cancellation or removal, which requires him to show that he hasn't been convicted of an offense described under, and somehow that that's a special justification for looking at this matter anew.

[00:16:24] Speaker 00:
But that was precisely what was before the court in Diaz.

[00:16:27] Speaker 00:
The court in Diaz, when they found ambiguity in the statute, it was between the fact that there was a requirement of a conviction

[00:16:35] Speaker 00:
in the provision, the statute where the applicant has to show eligibility for cancellation of removal.

[00:16:41] Speaker 02:
Council, when you say DS, are you citing DS Carrusco?

[00:16:44] Speaker 02:
Correct, yes, correct.

[00:16:47] Speaker 01:
Walk me through, just say we were, hypothetically we had a clean slate and we're just trying to put the pieces together.

[00:16:57] Speaker 01:
His response to my pointing out that the language of E2

[00:17:05] Speaker 01:
talks about conduct was, well, we're not in E2 because of removability.

[00:17:11] Speaker 01:
We're in E2 because it's cross referenced as a disqualification in cancellation.

[00:17:17] Speaker 01:
And the cross reference requires conviction of an offense, which is the, that's the buzzword that normally lands us in the categorical approach.

[00:17:27] Speaker 01:
So what's your response to his argument that

[00:17:31] Speaker 01:
Maybe this isn't categorical when it's a removability issue, but when it's borrowed into cancellation, it gets this sort of filter of the categorical approach.

[00:17:45] Speaker 00:
Yes, Your Honor.

[00:17:46] Speaker 00:
So the government's response to that is we respectfully disagree with Petitioner

[00:17:50] Speaker 00:
about the impact of low or bright.

[00:17:52] Speaker 00:
I do think that that all of those issues were squarely at issue.

[00:17:56] Speaker 01:
That's called fighting the hypothetical.

[00:17:58] Speaker 01:
Hypothetical is we are on a clean slate and I'm trying to read these words.

[00:18:02] Speaker 01:
Tell me how you think these words fit together in a way that doesn't land us in the categorical approach.

[00:18:08] Speaker 00:
So the conviction for immigration purposes is what we have in the cancellation provision.

[00:18:15] Speaker 00:
An applicant for cancellation removal has to show that they do not have a conviction

[00:18:19] Speaker 00:
for an enumerated offense.

[00:18:22] Speaker 00:
And what the agency decided in Jimenez, I believe it's Mendez Jimenez, there was that that language didn't change the Abshaco analysis for violations of protection orders, that a conviction for immigration purposes means a formal determination of guilt, which he doesn't dispute here.

[00:18:43] Speaker 01:
Suppose that in this case,

[00:18:46] Speaker 01:
It wasn't a conviction of guilt, but it was a civil finding and say, you know, a civil finding of violation of the order with a civil fine.

[00:18:57] Speaker 01:
Would that qualify as defeating cancellation of removal?

[00:19:05] Speaker 00:
So what the agency has said in the Mendez Jimenez decision is that for immigration purposes, it doesn't have to be a criminal conviction.

[00:19:15] Speaker 00:
The statute doesn't specify criminal conviction.

[00:19:18] Speaker 00:
We just need a conviction for immigration purposes, which is a formal adjudication, which we have here clearly.

[00:19:26] Speaker 01:
But what about for purposes of cancellation, which says crime.

[00:19:35] Speaker 00:
So for purposes of cancellation, we have to have a conviction for immigration purposes, which he has not disputed that exists in this case.

[00:19:42] Speaker 01:
No, I understand on these facts.

[00:19:43] Speaker 00:
It is- For an enumerated offense.

[00:19:44] Speaker 00:
And then when you look to enumerated offense, then we go to the- Right.

[00:19:47] Speaker 01:
So you would agree that if this case had involved only a civil adjudication with a formal finding and a civil fine, that that would have made them removable, but it would not have disqualified for cancellation because it's not a crime?

[00:20:04] Speaker 00:
No, that's not what I'm saying.

[00:20:06] Speaker 00:
I'm saying that an applicant for cancellation removal has to show that they have not been convicted of an enumerated offense.

[00:20:14] Speaker 00:
When we're looking at the enumerated offenses, then the Upshot Co-Analysis applies to this particular ground.

[00:20:20] Speaker 00:
When we're looking at whether or not there's a conviction, the agency has applied the framework from Mid-Anaheim

[00:20:29] Speaker 00:
to determine what's a conviction, and there you'd be looking at the agency definitions of conviction, which is adjudication of guilt.

[00:20:38] Speaker 00:
They haven't required it to be a criminal conviction.

[00:20:42] Speaker 00:
But again, not at issue in this case.

[00:20:44] Speaker 00:
There are three requirements here.

[00:20:47] Speaker 00:
One is a conviction.

[00:20:48] Speaker 00:
The second requirement is that there was a protection order issued for purposes of preventing violent or threatening acts of domestic violence, which he also does not dispute here.

[00:20:59] Speaker 00:
And the third requirement is whether or not

[00:21:03] Speaker 00:
The state court has determined that the applicant is engaged in conduct that violates a portion of the protection order that involves protections against credible threats of violence.

[00:21:13] Speaker 00:
That's the only component that's actually an issue here.

[00:21:16] Speaker 00:
But just to loop back to the Loper-Bright issue here, the DS court already decided this issue in the same context.

[00:21:28] Speaker 00:
We had a cancellation application and this ground of removability.

[00:21:32] Speaker 00:
with respect to the offense that they had to show.

[00:21:35] Speaker 00:
So stare decisis would apply.

[00:21:37] Speaker 00:
It was the exact same issue there, the court there.

[00:21:40] Speaker 00:
deferred to the agency's interpretation of the statute, both how the interplay between those two provisions.

[00:21:47] Speaker 00:
But the court in Diaz also said that that was a reasonable and consistent interpretation of the statute there.

[00:21:54] Speaker 00:
And just to note that the courts that have looked at it de novo, because I know the question is, what if this court were looking at it de novo?

[00:22:01] Speaker 00:
It's the government's position that we're not, that STARA decisis applies.

[00:22:05] Speaker 00:
But the courts that have looked at it, the Second Circuit, for example,

[00:22:10] Speaker 00:
That case is decided in the government's brief on page 24, the Alvarez case.

[00:22:17] Speaker 00:
In that case, the Second Circuit was looking at this fresh.

[00:22:20] Speaker 00:
And they also found that the categorical approach did not apply in this context.

[00:22:26] Speaker 00:
Without deferring to the agency's decision, they just agreed that that was the result.

[00:22:31] Speaker 00:
And then the board, when they decided this in matter of UpshotCo and matter of Medina Jimenez, was looking to a 7th Circuit decision that similarly, without deference, also found that the categorical approach didn't apply.

[00:22:45] Speaker 00:
in this context.

[00:22:47] Speaker 00:
So it's the government's position that star decisis applies and that the framework, the agency employed in Abshaco and Medina Jimenez that was approved by this court in Diaz applies and that it's also the government's position that petitioner hasn't met his burden of proving his eligibility for cancellation of removal.

[00:23:11] Speaker 00:
As the government noted here, the complaint was filed

[00:23:15] Speaker 00:
charging the petitioner with interference with judicial proceedings for violation of a protective order that was noted, the specific number of the protection order and the date of the offense.

[00:23:26] Speaker 00:
Then we looked to the police report from that same day, which is consistent with the complaint.

[00:23:31] Speaker 00:
It lists the same number for the protection order.

[00:23:35] Speaker 00:
And there, if we look to the police report, it does actually specify

[00:23:41] Speaker 00:
that the non-citizen here, the applicant for cancellation of removal reported to a protected location and engaged with a protected person.

[00:23:52] Speaker 00:
And it's the government's position that this conduct then is similar to conduct in other cases that is found to be in violation of a stay away or a no contact provision that would then fall within the ambit of section

[00:24:08] Speaker 00:
And so for those reasons, the government requests that the court affirm the agency's decision and deny the petition for review.

[00:24:21] Speaker 00:
If there are no further questions?

[00:24:23] Speaker 02:
It appears not.

[00:24:24] Speaker 02:
Thank you, counsel.

[00:24:25] Speaker 02:
Thank you.

[00:24:25] Speaker 02:
Rebuttal?

[00:24:31] Speaker 03:
Unless the panel has any questions, I'll rest on what was stated.

[00:24:34] Speaker 02:
All right.

[00:24:35] Speaker 02:
Thank you, counsel.

[00:24:36] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:24:38] Speaker 02:
The case just argued is submitted for decision by the court.

[00:24:42] Speaker 02:
That completes our calendar for the morning.

[00:24:44] Speaker 02:
We are in recess until 9.30 AM tomorrow morning.