[00:00:05] Speaker 03:
Good morning, counsel.

[00:00:07] Speaker 01:
Good morning, your honor.

[00:00:13] Speaker 03:
Please proceed, counsel.

[00:00:16] Speaker 01:
Thank you.

[00:00:16] Speaker 01:
Good morning, and may it please the court.

[00:00:18] Speaker 01:
My name is Juan Rocha, and I'm here on behalf of the petitioner, Mr. Edwin Cancinos Mencia, who is actually here in the courtroom.

[00:00:26] Speaker 01:
This court should reverse the Board of Immigration's published opinion in this case and remand the case back to the immigration.

[00:00:33] Speaker 01:
I'm sorry, back to the Board of Immigration Appeals.

[00:00:36] Speaker 01:
The first issue here that was raised was that the immigration judge, just to keep them separately, will use their names, Ms.

[00:00:44] Speaker 01:
Spencer Walters, failed to apply any standard of review when applying the modified categorical approach.

[00:00:52] Speaker 01:
And that's important because the second issue dovetails into the first issue, which is

[00:00:57] Speaker 01:
Did the government establish or carry its burden approved by clear and convincing evidence based on the documents that were submitted to Judge Spencer Walters in that case?

[00:01:08] Speaker 02:
This came to her on a remand from the board and the prior ruling, which she indicated she had read, mentioned the standards, as did your own briefing papers on remand reminded her of the standard.

[00:01:27] Speaker 02:
I mean, why isn't this just a case where she just, she didn't happen to mention the magic words of saying the clear and unequivocal and convincing, but the context makes clear that that was applied.

[00:01:41] Speaker 01:
I believe there's two reasons for that.

[00:01:43] Speaker 01:
One, I think in her order she says that the court, the procedural posture, the history of the case may be referred in the court's decision of September 16, 2016.

[00:01:54] Speaker 01:
So she sort of references or, in my opinion, pays lip service to that.

[00:01:59] Speaker 01:
And in the reply brief that I filed, I noted the case saying which indicates that this court's supervisor duties over these lower courts is to ensure that they actually apply, not just sort of resuscitate the standard of review here.

[00:02:16] Speaker 01:
And it's our belief here that she didn't do that.

[00:02:18] Speaker 01:
She didn't actually apply the correct standard or any standard of review.

[00:02:22] Speaker 01:
And so simply by resuscitating what it could have been, which there's no mention that in her order,

[00:02:27] Speaker 01:
that it was clear and convincing evidence, we think that that alone should be a basis for the remand.

[00:02:32] Speaker 01:
And so that, as I said, dovetails into the second issue, Your Honor, which is, did the government carry its burden of proof by clear and convincing evidence that Mr. Kinsino's, his underlying conviction is a crime of violence?

[00:02:49] Speaker 01:
And we believe it isn't.

[00:02:50] Speaker 03:
And so here, I think there- Counsel, what's the crime in this case?

[00:02:56] Speaker 01:
Your Honor, Mr. Kansinos pleaded guilty to violating the aggravated assault statute in Arizona, which is ARS 13-1204A2, and then, because it's an aggravated felony, it's ARS 13-1203A.

[00:03:12] Speaker 01:
But there's no mention of any subsection there.

[00:03:15] Speaker 03:
Now, the... Well, before we get there,

[00:03:18] Speaker 03:
Are you saying that the conviction for that crime was not for a crime of violence under those sections?

[00:03:25] Speaker 01:
That's correct.

[00:03:26] Speaker 01:
Under the modified categorical approach, I think this court has made it plain and clear that Arizona's aggravated assault statute is a divisible statute.

[00:03:33] Speaker 01:
That goes, I think both sides agree to that, that that's the case.

[00:03:36] Speaker 01:
So now we apply the modified categorical approach.

[00:03:39] Speaker 01:
And I believe the department in this case has mentioned that

[00:03:42] Speaker 01:
because there was a criminal complaint that seemed to track the language of subsection A2 of 12043 that combined with the admission that Mr. Kinsinos made during the change of colloquy

[00:03:58] Speaker 01:
But I note, and the government doesn't dispute this, that Mr. Consinos did not actually plead guilty to the complaint.

[00:04:09] Speaker 01:
There was an indictment filed in this case, and the government did not actually produce or generate that during the termination

[00:04:17] Speaker 01:
evidentiary hearing that Judge Spencer Walters had in this case, they didn't do that.

[00:04:22] Speaker 01:
And so, as I noted in my reply brief, the state of Arizona says whenever there's an indictment that's filed, it supersedes a complaint.

[00:04:30] Speaker 01:
Now, the department says, well, both defense counsel

[00:04:34] Speaker 01:
and the immigration judge both referenced the complaint, I'm sorry, the superior court judge referenced the complaint.

[00:04:42] Speaker 01:
So they were referring to a complaint.

[00:04:44] Speaker 01:
But even if that's the case, that was incorrect.

[00:04:47] Speaker 01:
And the verb that the department uses in their answering brief is, well, we can assume that it was transposed, you know, that that's what happened here.

[00:04:55] Speaker 01:
And that's just not the case.

[00:04:57] Speaker 01:
There was an indictment.

[00:04:58] Speaker 03:
That's true, counsel.

[00:04:59] Speaker 03:
Is it your argument that the board could not

[00:05:03] Speaker 03:
look at the complaint as part of its evaluation of the case?

[00:05:09] Speaker 01:
Yes, that's my position.

[00:05:10] Speaker 01:
Because there's an indictment.

[00:05:11] Speaker 01:
Of course, I'm not saying it could never do so.

[00:05:13] Speaker 01:
I'm just saying in this case, there was an indictment.

[00:05:16] Speaker 01:
And that's true of the Marcia Costa case, the Sahagún Gallegos case.

[00:05:20] Speaker 01:
There was indictments that were levied in that case.

[00:05:22] Speaker 01:
And they looked at the indictment.

[00:05:23] Speaker 01:
Here, there was no indictment.

[00:05:25] Speaker 01:
So it's unclear what the grand jury returned as far as a probable cause statement for the true bill for that indictment.

[00:05:31] Speaker 01:
We don't know that.

[00:05:32] Speaker 01:
because it was never submitted to the court.

[00:05:35] Speaker 03:
Doesn't our president permit looking at any of the documents that are in the record to ascertain what the crime of conviction was and try to use whatever information can be gleaned from those documents to determine that?

[00:05:49] Speaker 01:
Yes, it does.

[00:05:50] Speaker 01:
The court knows there's a certain limited number of documents.

[00:05:54] Speaker 03:
Is a complaint one of the documents that can be looked at?

[00:05:57] Speaker 01:
Your Honor, it can be.

[00:05:58] Speaker 01:
But our position is that because it was superseded by the indictment, that could have changed the complaint.

[00:06:04] Speaker 01:
So we don't know exactly what the grand jury returned as an indictment.

[00:06:08] Speaker 01:
We don't know that.

[00:06:09] Speaker 01:
And because it supersedes the complaint, the complaint isn't something that would help us determine whether or not Mr. Consino's plea was actually

[00:06:17] Speaker 01:
rested on the necessary elements of the generic offense.

[00:06:20] Speaker 01:
That's our position.

[00:06:22] Speaker 03:
Yes, but we're looking at whether or not there was clear and convincing evidence presented.

[00:06:28] Speaker 03:
And if the board said there was, whether or not the board was erroneous in that determination.

[00:06:34] Speaker 03:
And so the argument that there was an indictment issue, does that mean in your view that there was not clear and convincing evidence?

[00:06:41] Speaker 01:
My view is that we don't have all the information to determine whether or not Mr. Consinos's plea necessarily rested on those elements.

[00:06:50] Speaker 01:
That's my contention.

[00:06:50] Speaker 01:
It's why I'm asking this panel to reverse and remand to the immigration court to be able to make that application in this case, because we don't know what exactly that was.

[00:07:01] Speaker 01:
And the fact that that wasn't used both in the Superior Court, I'm sorry, in the Immigration Court and the BIA, they both referenced the complaint.

[00:07:12] Speaker 01:
We think that that is what makes this finding erroneous.

[00:07:15] Speaker 01:
Now, even assuming that, Your Honor, we apply the complaint in this case to determine whether the generic elements were satisfied, I think that...

[00:07:27] Speaker 02:
The plea agreement itself refer to a complaint or indictment?

[00:07:32] Speaker 02:
Does it say what the charging document was?

[00:07:35] Speaker 01:
It does, Your Honor.

[00:07:36] Speaker 01:
Now, I know that the answer... It does not?

[00:07:38] Speaker 01:
It does or does not?

[00:07:41] Speaker 01:
So, Your Honor, the plea agreement refer... I didn't hear your answer.

[00:07:44] Speaker 02:
Did you say it does or it does not?

[00:07:46] Speaker 01:
Your Honor, the plea agreement does not reference the indictment.

[00:07:50] Speaker 01:
Does not?

[00:07:51] Speaker 01:
Does not.

[00:07:51] Speaker 01:
Okay.

[00:07:51] Speaker 01:
What it references, and I know that the department raises in their answering brief, what it does raise is that

[00:07:57] Speaker 01:
that this plea agreement does not modify a complaint or information.

[00:08:01] Speaker 01:
But we know from the record, it's in the administrative record, that there was an indictment in this case.

[00:08:06] Speaker 02:
Correct.

[00:08:06] Speaker 02:
But from everything, you're right that an indictment normally supersedes and makes a complaint irrelevant.

[00:08:15] Speaker 02:
But then the relevant documents after the indictment are the plea agreement and then the, you know, the minute order and the transcript related to the change of plea.

[00:08:25] Speaker 02:
And I didn't see in those documents the plea agreement, the transcript, or the minute order.

[00:08:33] Speaker 02:
any reference to the

[00:09:03] Speaker 02:
Everyone had to charge, but nobody knew what the document was.

[00:09:06] Speaker 01:
And that's correct.

[00:09:06] Speaker 01:
That's why we believe there was insufficient evidence.

[00:09:10] Speaker 01:
So then that's when the Superior Court engages in what I describe as an elimination approach, which is that, well, first he says that there was reckless disregard of reasonable apprehension,

[00:09:23] Speaker 01:
of threats or harm.

[00:09:25] Speaker 01:
I believe he was referencing maybe A1, A2.

[00:09:28] Speaker 01:
There was unclear.

[00:09:29] Speaker 01:
And then what the Superior Court judge says is, wait, I'm looking at the statute.

[00:09:32] Speaker 01:
So that should tell this panel that, as Your Honor has mentioned, there's no reference here to the complaint or the information.

[00:09:40] Speaker 01:
So the Superior Court is simply looking at the statute of conviction.

[00:09:43] Speaker 01:
She's not looking at any judicially noticeable documents.

[00:09:46] Speaker 01:
And then she's asking these questions to defense counsel.

[00:09:49] Speaker 01:
And then by process of elimination, she's asking, well, which one is it?

[00:09:52] Speaker 02:
Well, what she's doing is she's been given a plea agreement that has a particular charge in it.

[00:09:59] Speaker 02:
And then in your standard change of plea colloquy, she has to be satisfied there's a factual basis, which means for every element of the offense, there are facts lined up that will

[00:10:11] Speaker 02:
check off all the boxes so that the offense is covered by the factual basis.

[00:10:17] Speaker 02:
And she was dutifully doing that.

[00:10:18] Speaker 02:
And she caught that, wait a minute, it didn't line up.

[00:10:22] Speaker 02:
One of the elements is missing.

[00:10:24] Speaker 02:
It didn't fit any of the clauses the way it had been laid out.

[00:10:28] Speaker 02:
And then she asked a clarifying question and the clarifying answer locks in the elements of A2 and not any of the others.

[00:10:37] Speaker 01:
That's how I read this.

[00:10:39] Speaker 01:
Certainly that is what I think transpired here, but I also note that in the unpublished cases, which you don't believe are not only not authoritative, you're not even persuasive, the Cordova case, and I believe the Diaz-Moreno case, especially the Cordova case, where

[00:10:56] Speaker 01:
They're saying even the immigration judge, Spencer Walter, says, well, I'm not just looking at the complaint or the charge in documents.

[00:11:04] Speaker 01:
I'm also looking at that Mr. Consino's assented to the factual basis.

[00:11:09] Speaker 01:
So, Your Honor, even assuming that... I'm sorry.

[00:11:13] Speaker 01:
Your Honor, taking into account that Mr. Consinos assented and the Superior Court Judge was due in its duty to ensure there was a factual basis, I still note back that there was no charging document here.

[00:11:26] Speaker 03:
So I think that's what this panel... Well, there was a charging document, the complaint.

[00:11:31] Speaker 03:
And in Ruiz Vidal versus Gonzalez, we said, in undertaking an analysis of the record of conviction, we may consider the charging documents, plural,

[00:11:43] Speaker 03:
in conjunction with the plea agreement.

[00:11:45] Speaker 03:
So, fairly read.

[00:11:46] Speaker 03:
Doesn't that mean that the complaint can be considered even if there is an indictment as well?

[00:11:53] Speaker 01:
Well, I think that, no, Your Honor, I think that if you look at Marcia Cousins, Sahagun Gallegos, both of those, this panel made it very clear that they were both indicted.

[00:12:02] Speaker 01:
Even the Junko case that's referenced to in one of those cases, the defendant was indicted.

[00:12:06] Speaker 01:
They make reference to the indictment, not to the complaint.

[00:12:09] Speaker 03:
Right, but a complaint, so you're saying that

[00:12:12] Speaker 03:
the board has to ignore a complaint if there's a complaint in the record?

[00:12:16] Speaker 01:
I didn't say that.

[00:12:17] Speaker 01:
If there was no indictment, then certainly the board, the IJ, can certainly consider that.

[00:12:23] Speaker 01:
I'm not saying that.

[00:12:24] Speaker 01:
That's certainly a judicially immutable document.

[00:12:26] Speaker 03:
But that's not what our cases seem to say.

[00:12:28] Speaker 03:
They may consider the charging documents plural.

[00:12:33] Speaker 01:
Sure.

[00:12:33] Speaker 01:
There could be a charging document complaint.

[00:12:35] Speaker 01:
There could be an information.

[00:12:36] Speaker 01:
I just want to underscore here we have an indictment, which we don't know if it amended the subsections of 13 subsection A2.

[00:12:44] Speaker 01:
We don't know that.

[00:12:45] Speaker 01:
We don't have that information.

[00:12:47] Speaker 02:
Understanding why the absence of the indictment makes a difference.

[00:12:50] Speaker 02:
Is it your theory that maybe the indictment said A1 and she took a plea to A2?

[00:12:55] Speaker 01:
It's possible.

[00:12:56] Speaker 01:
We don't know.

[00:12:56] Speaker 01:
We just, we don't know.

[00:12:57] Speaker 02:
Would that matter?

[00:12:58] Speaker 02:
Cause she, she took the plea to A2 and there's, there's not much doubt about reading the transcript that that's what she took the plea to.

[00:13:06] Speaker 02:
And so that was what the conviction was for.

[00:13:09] Speaker 02:
Maybe that was a variance for the indictment, but that's kind of a state law issue that doesn't affect the resulting conviction for immigration purposes.

[00:13:17] Speaker 01:
I agree, Your Honor, that that happened here to sustain this conviction, but under the modified categorical approach.

[00:13:26] Speaker 01:
That's clear from Moncrief that when you don't have a charging document that narrows the conviction, it doesn't really matter what the defense attorney or what the defendant, in that case, assented to because you don't have a charging document

[00:13:42] Speaker 01:
that narrows the conviction or the elements or the alternative elements.

[00:13:45] Speaker 01:
So that's what's the difference here.

[00:13:47] Speaker 01:
So that's how I would distinguish here that that's why this is important here because we're establishing someone's removability here, not simply someone's conviction.

[00:13:58] Speaker 01:
And so I'd like to reserve the last time here for my rebuttal.

[00:14:02] Speaker 01:
So I will cede here to the department.

[00:14:07] Speaker 03:
Thank you, counsel.

[00:14:08] Speaker 03:
We're here from the government.

[00:14:13] Speaker 00:
May it please the court?

[00:14:14] Speaker 00:
Lindsay Corliss for the respondent.

[00:14:16] Speaker 00:
This court should deny the petition for review.

[00:14:18] Speaker 00:
So this court has already addressed in precedential decisions many of the most pertinent questions related to this case.

[00:14:27] Speaker 00:
First, we know that petitioner's statute of conviction, that's Arizona Revised Statute Section 1203A, is divisible into its subparts A1, A2, and A3.

[00:14:38] Speaker 00:
And we already know that applying the modified categorical approach to those, that A2 and A3 are aggravated felonies, crimes of violence, and that A1 is not an aggravated felony, crime of violence.

[00:14:51] Speaker 00:
So we're here today to make sure that the agency properly looked at the Shepard documents in order to determine that this petitioner was convicted under Arizona Revised Statute, Section 1203A2,

[00:15:04] Speaker 00:
and not under A1.

[00:15:07] Speaker 00:
So I'm about to get into my argument there, but just given the discussion that just went on, I did want to address quickly the issue with the indictment.

[00:15:16] Speaker 00:
The indictment is not in the record.

[00:15:17] Speaker 00:
However, it is not true that he did not, that he pled to the indictment.

[00:15:23] Speaker 00:
He pled to the amended complaint.

[00:15:25] Speaker 02:
You can see... Where in the record is there any support for that assertion?

[00:15:29] Speaker 02:
I don't see it.

[00:15:30] Speaker 00:
So the amended complaint is at page 415 on the record.

[00:15:34] Speaker 00:
And then in paragraph four, it says that this complaint, this plea agreement serves to amend the complaint or information.

[00:15:44] Speaker 00:
So page 415, paragraph four, and the paragraph three right above it says what charges from the complaint are going to be changed.

[00:15:59] Speaker 00:
Do you see what I'm saying?

[00:16:00] Speaker 00:
It's like kind of at the bottom.

[00:16:01] Speaker 00:
There's a three in number and it says the following charges are dismissed.

[00:16:06] Speaker 00:
And then it says allegations of dangers in count one and count two.

[00:16:10] Speaker 00:
And then T4 says this agreement serves to amend the complaint or information.

[00:16:13] Speaker 02:
Right, but that could be amending the, this agreement serves, okay.

[00:16:23] Speaker 02:
So you're saying the fact that it says complaint, there's the reference

[00:16:29] Speaker 02:
that I had missed in the document to whether it was a complaint or an indictment.

[00:16:33] Speaker 00:
Right.

[00:16:33] Speaker 02:
And so then, and we also, oh, sorry.

[00:16:35] Speaker 02:
I mean, it's kind of standard.

[00:16:38] Speaker 02:
It's certainly true under the federal system that an indictment, the complaints are relevant.

[00:16:42] Speaker 02:
You can't take a plea to a complaint after there's an indictment.

[00:16:45] Speaker 00:
Well, so two things on that.

[00:16:48] Speaker 00:
First, and this is really my point, is that if he has a problem with the fact that he pled to his complaint, which he clearly did, if you look on the record at 350 where he's doing his plea agreement, he is pleading to the amended complaint.

[00:17:03] Speaker 00:
But if he has a problem with that.

[00:17:06] Speaker 00:
At the change of plea hearing?

[00:17:07] Speaker 00:
At the change of plea hearing?

[00:17:08] Speaker 00:
At the change of plea hearing.

[00:17:10] Speaker 00:
What page are you?

[00:17:10] Speaker 00:
So 350.

[00:17:11] Speaker 00:
So the last part, it says the card above it.

[00:17:15] Speaker 02:
What page of the transcript is it?

[00:17:16] Speaker 02:
Because it appears several places and I have a different copy.

[00:17:21] Speaker 00:
It does.

[00:17:22] Speaker 00:
I think this is the first time this transcript might be listed in the record.

[00:17:26] Speaker 00:
It's on page 350.

[00:17:27] Speaker 02:
Within the 19 pages of the transcript.

[00:17:28] Speaker 00:
Oh, within the 19 pages of the transcript.

[00:17:30] Speaker 00:
Give me that number.

[00:17:31] Speaker 00:
Oh, number nine.

[00:17:32] Speaker 02:
Number nine, okay.

[00:17:38] Speaker 00:
So you see him, you know, and we can actually even, we could probably go, so actually, sorry, look at number eight.

[00:17:45] Speaker 00:
It says paragraph three tells me that based on your plea of guilt to count one as it's been amended, so we're going back to count one of the amended plea, or the count one of the complaint as it's been amended by the plea agreement.

[00:17:58] Speaker 02:
Okay, go ahead and say the word complaint there.

[00:18:01] Speaker 00:
It doesn't there.

[00:18:02] Speaker 00:
If you want to look for a complaint, I'm looking at 350 on the next page.

[00:18:05] Speaker 02:
I looked through the soldier.

[00:18:06] Speaker 02:
I couldn't find the word complaint in it.

[00:18:08] Speaker 00:
Okay.

[00:18:08] Speaker 00:
Mr. Neufeld says, yes, on the date, time and location listed in the complaint and within Maricopa County and within the jurisdiction of this court, defendant recklessly placed the victim in reasonable apprehension of imminent injury.

[00:18:19] Speaker 00:
That's on page 350.

[00:18:21] Speaker 00:
So page nine of the amended plea agreement.

[00:18:26] Speaker 00:
I mean, no, I'm sorry, page nine of the change of plea hearing.

[00:18:39] Speaker 02:
Right, but I don't see anything there about indictment.

[00:18:43] Speaker 02:
No, no, no.

[00:18:44] Speaker 00:
He didn't plead to the indictment.

[00:18:46] Speaker 02:
Oh, on the daytime and listed in the complaint.

[00:18:49] Speaker 02:
Okay.

[00:18:50] Speaker 00:
Yes, our position is that if he has a problem with the fact that he pled to his complaint, that really is a collateral issue for the criminal courts.

[00:18:59] Speaker 00:
It's not before this court here.

[00:19:01] Speaker 00:
If this court wants to satisfy itself that it's okay to plead to a complaint rather than to an indictment, I do have a citation for the court.

[00:19:13] Speaker 00:
Although I don't think that it's correctly before this court as an issue.

[00:19:17] Speaker 00:
But if you want to look it up, State versus Wilson, 126, Arizona, 348, and that's the Court of Appeals from 1980.

[00:19:25] Speaker 00:
And that kind of, it's a case that really goes through how the process of a complaint or an indictment and how a plea agreement can change either one of them.

[00:19:37] Speaker 00:
If that's helpful to the court, then that's that.

[00:19:41] Speaker 00:
But like I said, it is a collateral issue.

[00:19:43] Speaker 00:
He pled to the complaint.

[00:19:47] Speaker 00:
But turning back to the Shepard documents and whether or not the agency properly found sufficient documents in order to support finding that this person was convicted under 1203A2.

[00:19:59] Speaker 00:
So starting backwards back at that change of plea hearing,

[00:20:05] Speaker 00:
We first have petitioner entering his plea of guilty.

[00:20:08] Speaker 00:
And when the judge asks for a factual basis for that plea, his attorney responds, defendant recklessly placed the victim in reasonable apprehension of imminent injury.

[00:20:19] Speaker 00:
Now that phrase, place the victim in reasonable apprehension of imminent injury, is verbatim the actus reus from A2 in the statute.

[00:20:29] Speaker 00:
Recklessly, however, is not in A2.

[00:20:31] Speaker 00:
So at that point, the judge really, she does her job in order to make sure that this defendant's rights are preserved.

[00:20:40] Speaker 00:
And she says, okay, this isn't making sense.

[00:20:42] Speaker 00:
These things don't align.

[00:20:44] Speaker 00:
Let's make sure that we get it right.

[00:20:46] Speaker 00:
So she says on the next page, so just a moment, I'm looking at the mens rea out of 13-1203.

[00:20:52] Speaker 00:
Now you said recklessly.

[00:20:53] Speaker 00:
And then she goes on to quote from the statute three different options.

[00:20:59] Speaker 00:
And all of these phrases are verbatim from the statute at A1, A2, and A3.

[00:21:04] Speaker 00:
She says, when I look at assault, you can intentionally, knowingly, or recklessly cause physical injury, which he didn't hear.

[00:21:13] Speaker 00:
Then she quotes A2, you can intentionally place another person in reasonable apprehension of imminent physical injury, or, and here comes A3, you can knowingly touch another person with intent to injure, insult, or provoke.

[00:21:28] Speaker 00:
So I'm having trouble embracing that mens rea.

[00:21:31] Speaker 00:
And at that point, petitioner's counsel says, okay, intentionally place the other in reasonable apprehension or fear, and then critically,

[00:21:39] Speaker 00:
Critically, the court says to the defendant, and do you agree with that?

[00:21:43] Speaker 00:
And at that point, the defendant assents.

[00:21:45] Speaker 00:
Now, under this court's precedent, in Diaz-Moreno, which is a case that we cited in our 28-J letter, that is sufficient.

[00:21:54] Speaker 00:
In Diaz-Moreno, the statute at issue there was a drug statute, and the missing element that was in none of the other documents, not the complaint, not an indictment, there was a missing element of what drug was at issue.

[00:22:10] Speaker 00:
The only time it was ever mentioned was at the plea colloquy during the factual recitation.

[00:22:15] Speaker 00:
And the attorney provided the information, stated that the drug at issue was cocaine.

[00:22:22] Speaker 00:
Then, critically again, the defendant assented to that, and this court found that sufficient evidence of the existence of a conviction in order to satisfy the modified categorical approach.

[00:22:39] Speaker 00:
So, but if this court is not satisfied just by following Diaz-Moreno, we do have, as we've discussed earlier, that complaint as amended by the plea agreement, which is at 415.

[00:22:52] Speaker 00:
Now, the complaint itself is at page 429 of the record.

[00:22:58] Speaker 02:
Can I ask you a hypothetical question?

[00:23:00] Speaker 02:
Because I understand now, and I had not caught that complaint is mentioned both in the plea agreement

[00:23:08] Speaker 02:
And then it's mentioned, as you noted, on page 9 of the transcript.

[00:23:13] Speaker 02:
But suppose the plea agreement and the transcript had both referenced the indictment.

[00:23:21] Speaker 02:
Yes.

[00:23:21] Speaker 02:
So it said the indictment, and everything else is the same, but the indictment is missing.

[00:23:28] Speaker 02:
Right.

[00:23:28] Speaker 02:
Would you lose then, or would it be the same result?

[00:23:32] Speaker 02:
And if so, why?

[00:23:34] Speaker 00:
If that were the case, I kind of can't imagine that petitioner would not have brought that issue up before the immigration judge.

[00:23:41] Speaker 00:
I mean, part of the issue here is when there was an opportunity for them to put the indictment into the record, that issue was not raised.

[00:23:50] Speaker 00:
So we do have an exhaustion issue here, and it's kind of showing us why that's a problem, because we are stuck with the record that we have right now, and the record we have right now doesn't have an indictment.

[00:24:00] Speaker 00:
I would say that

[00:24:02] Speaker 00:
It's going to raise some questions if, if they're referencing the indictment, but at the same time, if the only evidence that we have says a two under Diaz Moreno, then that would be sufficient.

[00:24:13] Speaker 00:
But I do think that there would have been prior argument about where's this indictment.

[00:24:16] Speaker 02:
Suppose the indictment, suppose the indictment, we're in the record and showed a one.

[00:24:22] Speaker 00:
Yeah.

[00:24:22] Speaker 02:
But she took the plea to a two very clearly took a plea to a two and the, and there's a conviction.

[00:24:29] Speaker 02:
What would be the answer then?

[00:24:30] Speaker 00:
Well, if she took the plea to A2, then that is what she was convicted of.

[00:24:34] Speaker 00:
The last thing is what was.

[00:24:36] Speaker 00:
Actually, there's a case Lima Lima where that kind of situation arose, and that is cited in our brief.

[00:24:45] Speaker 00:
And the premise of that case is essentially this court saying, if your plea agreement got rid of what you said in the indictment because it changed it, well, then that indictment is dead.

[00:24:57] Speaker 00:
So you can't rely on that if you have the change of plea.

[00:25:00] Speaker 00:
And in Lima Lima, the plea agreement didn't get to all of the elements of the offense.

[00:25:04] Speaker 00:
And so in that case, in Lima Lima, they said not enough evidence for conviction.

[00:25:10] Speaker 00:
But the whole point of that case was to say,

[00:25:12] Speaker 00:
that what matters is what you ultimately pled to.

[00:25:15] Speaker 00:
Now, what you ultimately pled to, we might have a little more hint of that if we're looking at the charging documents, but really what matters is what you actually pled to.

[00:25:26] Speaker 00:
So I just wanted, just very quickly, because I'm running out of time, I just wanted to just mention that once again that complaint does say verbatim, it's page 429,

[00:25:37] Speaker 00:
that the petitioner intentionally placed the victim in reasonable apprehension of imminent physical injury.

[00:25:43] Speaker 00:
So we do have verbatim the same language as is in the statute.

[00:25:48] Speaker 00:
Unless there are any questions on that issue, I did want to quickly touch upon the clear and convincing evidence standard issue that has been brought up.

[00:25:55] Speaker 00:
So petitioner is arguing that because the immigration judge did not specifically state the clear and convincing evidence standard that she didn't use any standard at all.

[00:26:09] Speaker 00:
That's not true.

[00:26:10] Speaker 00:
So she did apply a standard.

[00:26:12] Speaker 00:
So it's our job to figure out what standard she applied.

[00:26:15] Speaker 00:
It's not actually an error for the immigration judge to not state the standard.

[00:26:20] Speaker 00:
It's certainly an error for her to not apply the standard.

[00:26:23] Speaker 00:
So it's very helpful sometimes when they do state the standard, because then you can see, okay, she's stating the standard, she knows what the standard is, and this evidence satisfies it or doesn't satisfy it.

[00:26:35] Speaker 00:
It's easy to review it, but like I said, it's not an error not to state it.

[00:26:40] Speaker 00:
So let's look at, since she didn't state it, let's look at the evidence of what she actually did.

[00:26:45] Speaker 00:
At the very base of that, we do have the presumption of regularity

[00:26:49] Speaker 00:
The immigration judge is the government official.

[00:26:51] Speaker 00:
There is a presumption that she's going to discharge her duties, including using the correct standard of review, and especially when we're dealing with what is the most basic standard of immigration law.

[00:27:04] Speaker 00:
It's not a standard that's in flux.

[00:27:07] Speaker 00:
If you want to find someone removable, it has to be because there is clear and convincing evidence of their removability.

[00:27:12] Speaker 00:
But so we start with that, and then you have to look, is there any evidence in this record to overcome that presumption?

[00:27:23] Speaker 00:
And we don't have any evidence of that.

[00:27:25] Speaker 00:
Petitioner didn't point to any evidence that she weighed against it that might tell us, oh, she's actually using a preponderant evidence standard.

[00:27:32] Speaker 00:
It's not like she said this evidence is more persuasive than this evidence.

[00:27:35] Speaker 00:
She wasn't weighing evidence in a way that made you think that she was doing a different standard.

[00:27:40] Speaker 00:
We also see that she is relying on the type of evidence that this court has found in other presidential decisions to be clear and convincing evidence.

[00:27:49] Speaker 00:
So she's relying on the right kind of evidence that we consider to be clear and convincing.

[00:27:55] Speaker 00:
We also have the history of this case to look at.

[00:28:00] Speaker 00:
Not only did she mention in her decision that she reviewed the prior decisions and record, she actually discusses on page 81 of the record with both petitioners and government counsel what she had done and what she had reviewed, including the transcripts of prior proceedings and decisions.

[00:28:18] Speaker 00:
So she discussed that she had reviewed that.

[00:28:21] Speaker 00:
And in her review, she would have come across at least three statements of the correct clear and convincing evidence standard.

[00:28:29] Speaker 00:
Page 290, the very first immigration judge orally finds that DHS sustains its board burden by clear and convincing evidence.

[00:28:37] Speaker 00:
And then in a written decision on pages 233 and 236, the second immigration judge

[00:28:46] Speaker 00:
use that standard twice and stated that standard twice.

[00:28:49] Speaker 00:
Finally, I'll just mention that the decision itself includes a burden shifting.

[00:28:55] Speaker 00:
As soon as she finishes the removable portion of her decision, the immigration judge states that petitioner has the burden to show that he is eligible for relief and he has to do it by preponderant evidence.

[00:29:08] Speaker 00:
If she weren't

[00:29:09] Speaker 00:
shifting her burden from one thing to another, she probably wouldn't have said so.

[00:29:14] Speaker 00:
But I do see I am out of time, so unless the court has questions, I will rest.

[00:29:40] Speaker 01:
So the department explains that this is something about the complaint that should have been brought up by Mr. Kinsinos during the time of the evidentiary with the immigration judge.

[00:29:51] Speaker 01:
But it's our position that that would be illegal burden shifting.

[00:29:54] Speaker 01:
It's their burden of proof, not respondents.

[00:29:57] Speaker 01:
We agree that it's respondents in the immigration judge context to prove eligibility for relief.

[00:30:02] Speaker 01:
We concede that.

[00:30:03] Speaker 01:
But it's their burden of proof by clear and convincing evidence to show that.

[00:30:07] Speaker 01:
So if they didn't improve the indictment,

[00:30:10] Speaker 01:
That's on the departments.

[00:30:11] Speaker 02:
But now we have, I mean, the two indicia in the plea agreement and in the transcript that, in fact, the plea was taken to the complainant.

[00:30:19] Speaker 02:
Maybe that was messed up under Arizona law, but is that something we can consider?

[00:30:26] Speaker 02:
That the conviction still results.

[00:30:32] Speaker 01:
Well, again, there's a conviction here for purposes of the state.

[00:30:35] Speaker 01:
But is it a deportable offense for purposes of the Immigration and Nationality Act for an Aggravated Crime of Violence?

[00:30:42] Speaker 01:
I would say no, because it's their burden.

[00:30:44] Speaker 01:
It's in the record.

[00:30:45] Speaker 01:
They've never said that it doesn't exist.

[00:30:49] Speaker 01:
What could have happened with that, of course, is only between the Superior Court and Defense Council.

[00:30:54] Speaker 01:
I just also just want to mention that there's

[00:30:59] Speaker 01:
The government cites to Moreno Diaz the unpublished case to say that the colloquy is sufficient even if you don't have the indictment or the other charging document.

[00:31:08] Speaker 01:
But I just want to note that that document or that case, Diaz-Moreno, conflicts with Marcia Costa where it says you need the charging document and some sort of assent by the defendant or the respondent to satisfy the modified categorical approach.

[00:31:23] Speaker 01:
So Diaz-Moreno just essentially ignores precedent and just finds that the colloquy is enough.

[00:31:29] Speaker 01:
We don't think that case has any presidential or persuasive value.

[00:31:33] Speaker 01:
Your Honor, I know that I'm out of time, so unless the panel has any questions, I ask that the court reverse the BIA and remand the case back to the immigration court.

[00:31:43] Speaker 01:
Thank you.

[00:31:44] Speaker 03:
All right.

[00:31:44] Speaker 03:
Thank you.

[00:31:45] Speaker 03:
Thank you to both counsel.

[00:31:46] Speaker 03:
The case just argued is submitted for decision by the court.

[00:31:50] Speaker 03:
That completes our calendar for the morning.

[00:31:52] Speaker 03:
We are in recess until 9.30 a.m.

[00:31:54] Speaker 03:
tomorrow morning.

[00:32:14] Speaker ?:
And action.