[00:00:02] Speaker 04:
We'll hear first from Mr. Good.

[00:00:16] Speaker 04:
You may proceed.

[00:00:17] Speaker 00:
Good morning, Your Honors.

[00:00:18] Speaker 00:
May it please the Court.

[00:00:19] Speaker 00:
John Good, certified law student under the supervision of Andrew Knapp and Southwestern Law School's Appellate Litigation Clinic, on behalf of Petitioner Carlos Enrique Contreras-Rivas.

[00:00:31] Speaker 00:
Today, I will discuss issues related to Petitioner's asylum, withholding of removal, cancellation of removal, and NCARA claims.

[00:00:39] Speaker 00:
I will monitor my time and intend to reserve about seven minutes of rebuttal for my colleague, Lisa Howe.

[00:00:46] Speaker 00:
Your Honors, this Court should remand Petitioner's claims for three reasons.

[00:00:51] Speaker 00:
One, the BIA reviewed the agency's adverse credibility determination under the wrong standard.

[00:00:57] Speaker 00:
Petitioners sufficiently exhausted his TRIG and CIMT arguments.

[00:01:03] Speaker 00:
And three, the IJ and the BIA undermine the USCIS's already positive ABC registration.

[00:01:10] Speaker 00:
Moving to my first point, the BIA reviewed the agency's adverse credibility determination under an improper standard.

[00:01:18] Speaker 00:
The code of federal regulations requires that when the BIA is reviewing an agency's adverse credibility determination, it must review under a clear error standard.

[00:01:27] Speaker 00:
And in this case,

[00:01:29] Speaker 00:
The BIA reviewed under Wang versus INS, a single factor rule that is reserved exclusively for this court.

[00:01:36] Speaker 00:
And this court recognized as much in Zeng versus Garland in 2021, where in that case, when the BIA applied Wang instead of the clear error standard, this court recognized that that constituted reversible error.

[00:01:51] Speaker 00:
The government does not dispute that the wrong standard applied

[00:01:54] Speaker 00:
but instead contests that under the substantial evidence standard that there is enough evidence to uphold the agency's adverse credibility determination.

[00:02:03] Speaker 00:
However, petitioner points to three different errors that were committed by the IJ and the BIA in violation of the rule pronounced in Soto Larte versus Holder.

[00:02:15] Speaker 00:
And because of those three errors, substantial evidence could not support upholding the adverse credibility determination.

[00:02:24] Speaker 00:
If I may move to my second point regarding petitioner exhausting his TRIG and CIMT arguments.

[00:02:32] Speaker 00:
The government only puts at issue whether or not that these arguments were exhausted and petitioner believes that they certainly were.

[00:02:39] Speaker 00:
But petitioner would also like to remind this court with respect to the TRIG argument and with respect to the CIMT argument,

[00:02:47] Speaker 00:
At least one argument needs to be exhausted to warrant remanded.

[00:02:50] Speaker 00:
It wouldn't require both.

[00:02:52] Speaker 00:
So if I could first turn to the trig arguments that petitioner raised.

[00:02:57] Speaker 00:
Petitioner raises the common law defense of diminished capacity and culpability of minors.

[00:03:03] Speaker 00:
And this circuit recognized in Baer versus Barr that exhaustion is satisfied when a petitioner raises an argument in administrative proceedings and then raises a more specific legal issue on appeal.

[00:03:16] Speaker 00:
That's exactly what petitioner did in this case.

[00:03:19] Speaker 00:
He first raised his lack of knowledge of defense before the IJ on the administrative record at page 405.

[00:03:25] Speaker 00:
And his attorney argued that the IJ should consider

[00:03:30] Speaker 00:
should take into account petitioner's age of being about 13 years old at that time.

[00:03:35] Speaker 04:
Doesn't the record also reflect that the IJ was well aware of the age, because the age is mentioned at other points?

[00:03:43] Speaker 04:
And so then this becomes an argument that the IJ had to say it specifically and ticking it through as a factor.

[00:03:51] Speaker 04:
And why would that be true?

[00:03:52] Speaker 04:
The IJ was clearly aware of it, and we can then presume considered it in making the ultimate determination.

[00:03:59] Speaker 00:
Well, the IJ and the BIA, both of them rejected the lack of knowledge defense by solely relying on the admission that petitioner knew that he was involved with armed guerrilla organizations.

[00:04:14] Speaker 00:
And so that doesn't reflect that it contemplated his actual age, that a typical common law defense of diminished capacity for minors

[00:04:22] Speaker 00:
would require for courts to consider.

[00:04:25] Speaker 00:
And so to be clear, assuming that petitioner, or because petitioner has exhausted this argument, what we're asking for this court to do is to join the Sixth Circuit in recognizing that the common law defense of diminished capacity and culpability of minors.

[00:04:42] Speaker 04:
Does this become a situation where you don't have to mention

[00:04:48] Speaker 04:
an argument specifically, but the IJ does have to address the argument specifically?

[00:04:54] Speaker 04:
It seems, am I missing something?

[00:04:58] Speaker 00:
No, Your Honor.

[00:04:59] Speaker 00:
That is not the case.

[00:05:02] Speaker 00:
The whole purpose of exhaustion is that the BIA is on notice.

[00:05:07] Speaker 00:
And the BIA is also supposed to read Petitioner's argument within the context of the record.

[00:05:12] Speaker 00:
And when reading Petitioner's argument, his lack of knowledge defense within the context of the record, it's clear what was central to his lack of knowledge defense was the fact that he was about 13 to 15 years old at the time that he was involved with these.

[00:05:28] Speaker 00:
terrorist organizations.

[00:05:30] Speaker 00:
If I may move to how the CIMT arguments were also sufficiently exhausted, I would first like to point to the argument that Petitioner asserts challenging whether or not 647A is or is not a CIMT.

[00:05:47] Speaker 00:
In this case, Petitioner argued that he had good moral character and the BIA responded that respondent has not meaningfully challenged that finding that his convictions are CIMTs

[00:05:58] Speaker 00:
but rather inaccurately characterizes the IJ's decision as ruling that he lacked good moral character.

[00:06:06] Speaker 00:
So notwithstanding that petitioner failed to articulate the claim correctly, the BIA understood what the petitioner was trying to argue and thus had notice of what petitioner was arguing.

[00:06:18] Speaker 00:
But then the BIA went further.

[00:06:21] Speaker 00:
The BIA addressed the substantive merits of the claim by using this court's decision in Batanzos versus Barr

[00:06:28] Speaker 00:
to resurrect its 1967 decision in Alfonso Bermudez to conclude that 647A were CIMTs.

[00:06:36] Speaker 02:
Why don't you tell me why Alfonso Bermudez, through Batanzas, doesn't apply retroactively to your client?

[00:06:45] Speaker 00:
Certainly, Your Honor.

[00:06:46] Speaker 00:
So under a retroactive application, this court is supposed to weigh the Montgomery factors.

[00:06:52] Speaker 00:
In particular, the factors that are at issue is the reliance factor.

[00:06:57] Speaker 00:
And so petitioner asserts that at the time that he filed his notice of appeal in 2018, Nunez versus Holder was still good law.

[00:07:05] Speaker 00:
And Nunez versus Holder decided by this court in 2010 held that 647A was not a CIMT.

[00:07:11] Speaker 00:
And this court departed from Nunez when it decided

[00:07:19] Speaker 00:
Betanzas, which effectively resurrected Alfonso Bermudez.

[00:07:23] Speaker 00:
So essentially, that demonstrates, one, that petitioner relied on Nunez versus Holder, but then also, two, that this circuit unreasonably departed from its past precedent.

[00:07:34] Speaker 02:
So is it just the act of having filed the appeal, paid the filing fee?

[00:07:38] Speaker 02:
Is it your argument that that's sufficient to show reliance?

[00:07:41] Speaker 00:
Yes, Your Honor.

[00:07:42] Speaker 00:
And if there are no further questions regarding the CIMT or TRIG arguments, I'd like to reserve the rest of my time for rebuttal.

[00:07:52] Speaker 04:
All right.

[00:07:52] Speaker 04:
Thank you, Council.

[00:07:55] Speaker 04:
Then we'll hear from Ms.

[00:08:00] Speaker 04:
Hennis.

[00:08:00] Speaker 04:
Did I pronounce that correctly?

[00:08:02] Speaker 04:
All right.

[00:08:14] Speaker 01:
May it please the court, Stephanie Hennis, for respondent.

[00:08:19] Speaker 01:
Your honors, in this case, there are a variety of ways that the court can dispose of the petition for review.

[00:08:28] Speaker 01:
One would be regarding the CIMT determination.

[00:08:32] Speaker 01:
One would be regarding the trig, the terrorist-related removal grounds.

[00:08:39] Speaker 01:
And then also, even if

[00:08:42] Speaker 01:
the court were to determine that neither of those were valid, at least as to asylum and withholding the adverse credibility finding would be dispositive of that claim.

[00:08:55] Speaker 01:
So let me begin with the adverse credibility finding.

[00:09:06] Speaker 01:
pushes back on the notion that the board applied the wrong standard when it was reviewing the adverse credibility finding in this case.

[00:09:15] Speaker 01:
The board did cite Wang, but Wang is the case that talks about the heart of the claim rule.

[00:09:20] Speaker 01:
And the reason that the board was discussing the heart of the claim rule was because in his counseled appeal brief to the board, the petitioner said that the immigration judge had not utilized

[00:09:33] Speaker 01:
the heart of the claim rule, which is required for a pre-Real ID Act case like his.

[00:09:39] Speaker 01:
So when the board cited that case, it was merely pointing out that the immigration judge applied the heart of the claim.

[00:09:46] Speaker 01:
So did the board.

[00:09:48] Speaker 01:
And even if there was any question, the board didn't step back from any aspect of the immigration judge's decision in this case.

[00:09:56] Speaker 01:
The board laid out the various reasons why the immigration judge found the petitioner not credible and then agreed with them.

[00:10:06] Speaker 01:
So there isn't any question here about reviewing for clear error.

[00:10:11] Speaker 01:
I would also point out that the inconsistencies, especially regarding what terrorist groups the petitioner was a member of,

[00:10:22] Speaker 01:
all over the place.

[00:10:24] Speaker 01:
In his asylum interview, he testified that he was a member of two armed guerrilla groups called ORPA and EGP.

[00:10:32] Speaker 01:
He was then issued a notice of intent to deny, and in his response he said he never told the asylum officer that he was a member of ORPA or EGP.

[00:10:42] Speaker 01:
Then he gets to immigration court in October 2012.

[00:10:46] Speaker 01:
He again denied membership in either group.

[00:10:50] Speaker 01:
Later, in June of the following year, when the asylum officer comes and testifies about the petitioner's testimony,

[00:10:58] Speaker 01:
He and clarifies that he did make these statements.

[00:11:03] Speaker 01:
Then the petitioner starts to backtrack.

[00:11:05] Speaker 01:
Then in May 2017, he was only an EGP member and that was only for, excuse me, I...

[00:11:15] Speaker 01:
Yes, let me follow my chronology here.

[00:11:18] Speaker 01:
So then he was only an EGP member, only for one year.

[00:11:22] Speaker 01:
And then he later talks about how he was only a member of one group, and then he was a member of two groups.

[00:11:31] Speaker 01:
And the immigration judge asked him about that, and he said all those groups were only one.

[00:11:38] Speaker 01:
The petitioner says that the immigration judge needed to say more about rejecting that explanation, but the explanation itself really doesn't make any sense.

[00:11:48] Speaker 01:
He had previously testified that there were multiple groups and that he was part of multiple groups.

[00:11:53] Speaker 01:
He can't then say, no, there weren't multiple groups.

[00:11:56] Speaker 01:
There was actually just one.

[00:11:58] Speaker 05:
In looking at the, I think your chronology is helpful and that discussion about the record that's developed and the inconsistencies certainly highlights some issues with respect to credibility.

[00:12:13] Speaker 05:
Does the IJ spend enough time working through those?

[00:12:17] Speaker 05:
A lot of the IJ's comments on adverse credibility are somewhat conclusory.

[00:12:23] Speaker 01:
Well, so all the immigration judge needs to do is give specific and cogent reasons for finding the person not credible.

[00:12:31] Speaker 01:
And the immigration judge does walk through the various versions of testimony that the petitioner provided.

[00:12:38] Speaker 01:
The immigration judge did not give a lengthy explanation as to why he was rejecting the explanation.

[00:12:45] Speaker 01:
But again, a longer explanation only needs to occur when the person gives a reasonable and plausible

[00:12:52] Speaker 01:
explanation and given that he had previously testified on numerous occasions that he was a member of multiple groups to then say that they were just one group

[00:13:02] Speaker 01:
It's not the government's position.

[00:13:05] Speaker 01:
It's just that that's not reasonable or plausible.

[00:13:08] Speaker 01:
He also testified inconsistently about his involvement with the two organizations going from saying that he was trained to make bombs and he recruited people to he never learned how to do any of those things to denying that he placed any of these devices anywhere and then ultimately conceding that he did in fact

[00:13:32] Speaker 01:
place He did place Explosive devices around Guatemala City at bus stations and at military bases So we have that testimony as well and all of that goes to the heart of his claim his claim for asylum was based on

[00:13:55] Speaker 01:
his involvement with these groups being the reason that he was harmed and would fear harm.

[00:14:03] Speaker 01:
There's also precedent from the Seventh Circuit talking about a person's incentive to minimize his involvement with terrorist groups and a Third Circuit case that we cited in our brief that says that inconsistent statements about the applicability of the terrorism bar go to the heart of the claim.

[00:14:24] Speaker 01:
I would also point out that they make arguments about this court's recent precedent and ALAM regarding the totality of the circumstances analysis for asylum for adverse credibility claims.

[00:14:38] Speaker 01:
And that doesn't apply in this case because ALAM was interpreting the Real ID Act standards for adverse credibility, which have a totality of the circumstances requirement.

[00:14:51] Speaker 01:
there is no totality of the circumstances requirement for pre-Real ID Act cases like his.

[00:15:00] Speaker 01:
As to the crime involving moral turpitude conclusion in this case.

[00:15:07] Speaker 05:
Could you speak, before you transition off of the adverse credibility piece, could you speak a little bit about how that pertains to the NACARA claim?

[00:15:15] Speaker 01:
So it applies, it does apply to the NACARA claim.

[00:15:20] Speaker 01:
To the extent that the immigration judge was looking at the petitioner's lack of credibility in determining whether he had registered for NCARA benefits, there was testimony during the immigration court hearing from the DHS attorney explaining that USCIS

[00:15:41] Speaker 01:
had accepted him as a class member and had also accepted a sworn statement from him that he had timely registered for ABC benefits, which is what's required to be able to be considered for NACARA.

[00:16:01] Speaker 01:
But there was no objective evidence.

[00:16:03] Speaker 01:
And from USCIS, the Petitioner's Council had submitted a letter from the asylum office saying that they had no evidence in their database of him timely registering.

[00:16:18] Speaker 01:
And so the immigration judge said, well, you're not credible and you don't have any objective evidence of registration.

[00:16:28] Speaker 01:
And so he determined that he didn't timely register for benefits.

[00:16:33] Speaker 01:
Now, I will point out, Your Honors, that the question of timely registration is one as to eligibility for NICARA.

[00:16:42] Speaker 01:
And Congress has expressly said that that is not subject to judicial review.

[00:16:47] Speaker 01:
This court has also reached that conclusion in published decisions.

[00:16:53] Speaker 01:
The claim that the petitioner attempts to raise now is that there is a legal issue regarding the immigration judges and the board's ability to even

[00:17:03] Speaker 01:
consider someone's eligibility for NCARA regarding the registration, and that they're basically never allowed to do it.

[00:17:15] Speaker 01:
And they refer to Matter of Morales, which is a board case that doesn't deal with this particular issue.

[00:17:23] Speaker 01:
It didn't address NCARA cancellation at all, because the board decision predated that form of relief.

[00:17:30] Speaker 01:
It only addressed the IJ and board's role in administering the ABC settlement.

[00:17:35] Speaker 01:
NCARA is not part of the ABC settlement.

[00:17:38] Speaker 01:
And it answered the narrow question of what determinations the IJ needed to make before administratively closing removal proceedings in order for the person to get the de novo outside of removal proceedings adjudication of an asylum application that the settlement agreement provided.

[00:18:00] Speaker 05:
Thank you for that explanation.

[00:18:03] Speaker 05:
Turning to the CIMT issue, does the fate of Chevron, is that material to what we do with this case?

[00:18:14] Speaker 01:
If they overrule the Supreme Court?

[00:18:16] Speaker 01:
Yes.

[00:18:17] Speaker 01:
No, it's not.

[00:18:18] Speaker 01:
So for a few reasons.

[00:18:20] Speaker 01:
One, that's speculative, that it's going to get overruled.

[00:18:24] Speaker 01:
Two, Chevron is about the implicit delegation of authority to an agency.

[00:18:31] Speaker 01:
That's acknowledged in the Roberts' dissent in Arlington v. FCC.

[00:18:38] Speaker 01:
The reason that this question of implicit delegation is important here is that the INA actually contains an express delegation of authority.

[00:18:46] Speaker 01:
8 USC 1103A1 says that determinations and ruling by the attorney general with respect to all questions of law arising from the administration and enforcement of the INA and all other laws relating to immigration and naturalization of non-citizens shall be controlling.

[00:19:06] Speaker 05:
Well, I guess that's part of the challenge.

[00:19:11] Speaker 05:
But there are substantial arguments, we didn't accept them, that the CMIT definition itself is vague, maybe not unconstitutionally so.

[00:19:21] Speaker 05:
And it looks like some of our past opinions have relied on that ambiguity

[00:19:26] Speaker 05:
to allow the agency to fill that.

[00:19:28] Speaker 05:
Given the stakes at issue here, why wouldn't we, if Chevron falls away, want to take another look at exercise our Article 3 powers to determine what moral turpitude means?

[00:19:48] Speaker 01:
I think because moral turpitude is, I mean, this is still a crime involving moral turpitude is part of the INA, and the statute does provide the attorney general with the ability to rule on those issues.

[00:20:08] Speaker 01:
So I would say that it's still the statute that requires the... What does our prior case authorities say about

[00:20:17] Speaker 04:
whether 657 is the CIMT, if anything.

[00:20:24] Speaker 01:
This court's precedent regarding that particular statute of conviction?

[00:20:30] Speaker 01:
Correct.

[00:20:30] Speaker 04:
Do we have any pertinent precedent on that?

[00:20:33] Speaker 01:
I'm not aware of any, Your Honor.

[00:20:37] Speaker 01:
This is, I think, a decent segue into the exhaustion argument that I do want to quickly make.

[00:20:44] Speaker 01:
I recognize that the court has liberal exhaustion policies.

[00:20:51] Speaker 01:
But in this case, this is not a situation where the petitioner was pro se.

[00:20:55] Speaker 01:
He did have an attorney when he filed his appeal brief to the board.

[00:20:59] Speaker 01:
And in his appeal brief,

[00:21:01] Speaker 01:
Through counsel, he only argued that his convictions didn't prevent him from showing good moral character.

[00:21:08] Speaker 01:
The board even acknowledged this waiver and really couched its determination in the case on the absence of any argument from the petitioner.

[00:21:18] Speaker 01:
And that's what we think distinguishes this from other cases.

[00:21:22] Speaker 01:
This is not like Abibi versus Gonzalez, where the board

[00:21:27] Speaker 01:
adopted and affirmed NIJ's, quote, thorough and well-reasoned decision.

[00:21:32] Speaker 01:
In this case, we actually have the board saying, well, there's this published precedent that we have.

[00:21:38] Speaker 01:
You're not telling us why we shouldn't follow this.

[00:21:42] Speaker 01:
You haven't raised any argument whatsoever.

[00:21:44] Speaker 01:
And so we would say that that's not an opportunity for the board to really be correcting its errors, especially since there was already a published board decision.

[00:21:55] Speaker 05:
I guess I suppose the other side reads footnote two and that discussion as acknowledging that the issue was before them.

[00:22:05] Speaker 05:
So why wouldn't we rely on the fact that we deem it exhausted because the BIA has addressed it one way or the other.

[00:22:13] Speaker 01:
I mean, the only argument I can really make is that the fact that the board really did acknowledge that there weren't arguments being made gave it the reason to say, we're going to follow this case.

[00:22:26] Speaker 01:
And I think the footnote just gets at the notion of them saying, this case is still valid because there's a new precedent from the Ninth Circuit.

[00:22:35] Speaker 02:
If we deem that argument exhausted, do you address anywhere in your brief

[00:22:40] Speaker 02:
the argument that Batanzas has an impermissibly retroactive effect upon contrast.

[00:22:45] Speaker 01:
Yes, I mentioned this in one of the response to the 28J letter.

[00:22:50] Speaker 01:
It's the portion right after where we discuss the fact that the court has already found that a CIMT is not impermissibly vague.

[00:23:01] Speaker 01:
And we get at the fact that the board's underlying, I can't remember the name of the case,

[00:23:13] Speaker 01:
the board's decision in Alfonso.

[00:23:15] Speaker 01:
I've run out of time, Your Honor.

[00:23:18] Speaker 01:
Would you like me to continue?

[00:23:20] Speaker 04:
I have a further question.

[00:23:22] Speaker 01:
The board's decision in Alfonso had remained in place.

[00:23:31] Speaker 01:
before the agency.

[00:23:33] Speaker 01:
And that gets at the idea of this is different than what the court was dealing with in Batanzos, where there wasn't prior law that was in place.

[00:23:46] Speaker 01:
In this case, we already had a published decision finding that CPC 647A was a CIMT.

[00:23:54] Speaker 01:
And so the petitioner was on notice that the approach that the Ninth Circuit has taken was vulnerable.

[00:24:01] Speaker 01:
And there's also no reliance interest.

[00:24:06] Speaker 01:
A more favorable rule wasn't in place when he pleaded guilty.

[00:24:11] Speaker 01:
He also talks about generally filing his board appeal due to reliance on Nunez, but then he actually says nothing about Nunez in his board appeal.

[00:24:22] Speaker 01:
So even if simply filing the appeal were enough, there's no evidence here that he was actually relying on that.

[00:24:29] Speaker 01:
And again, Nunez wasn't well-settled precedent, given that there was this prior board decision that directly dealt with his statute of conviction.

[00:24:40] Speaker 04:
I want to ask you a question about the terrorist activities statute.

[00:24:45] Speaker 04:
Do you agree?

[00:24:48] Speaker 04:
What's your response to their argument that the agency

[00:24:55] Speaker 04:
should have applied pre-1996 law on that issue?

[00:25:02] Speaker 01:
So our position is that the pre-1996 law is only relevant to this question of dangerousness.

[00:25:19] Speaker 01:
It is in fact true that the Real ID Act and the Patriot Act

[00:25:25] Speaker 01:
both apply in this case, because they apply retroactively.

[00:25:29] Speaker 01:
The issue is that the Real ID Act did not re-implement language that had omitted, that had removed the dangerousness consideration when dealing with material support claim.

[00:25:45] Speaker 01:
I don't know if that.

[00:25:47] Speaker 04:
Judging.

[00:25:48] Speaker 04:
Is dangerousness an issue or not an issue that's required here?

[00:25:54] Speaker 01:
Well, this court said that dangerous, I think we're actually, this court has said that dangerousness is a required determination in CHEMA, though it did separate that out from the material support argument, or the material support determination.

[00:26:13] Speaker 01:
So in CHEMA, the court said that there needs to be a determination as to material support and one as to dangerousness.

[00:26:21] Speaker 01:
And I point that out.

[00:26:23] Speaker 01:
for purposes of our exhaustion argument because the petitioner has never at any point raised any sort of argument about there needing to be a dangerousness finding.

[00:26:34] Speaker 01:
And that is something that is separate and distinct from the material support.

[00:26:38] Speaker 01:
So it should not be subsumed into a general challenge regarding the material support claim.

[00:26:46] Speaker 04:
okay all right thank you cancer we've taken you over your time thank you we'll hear now rebuttal from this out

[00:27:28] Speaker 03:
Good morning, your honors, and may it please the court, Lisa Au, certified law student on behalf of petitioner Carlos Contreras Rivas.

[00:27:37] Speaker 03:
Your honors, in response to the government's arguments, there are several issues I want to address.

[00:27:43] Speaker 03:
The first issue I want to address is that this court doesn't have jurisdiction to reach the NCARA claim.

[00:27:49] Speaker 03:
Pursuant to Section 1252A2C and D, this court may review questions of law and constitutional claims, including questions of a law that involve undisputed facts.

[00:28:01] Speaker 03:
Here, it is undisputed that Petitioner was determined by USCIS to be an ABC Register class member.

[00:28:08] Speaker 03:
Thus, all that remains for this court to decide

[00:28:11] Speaker 03:
is the legal issue, which is simply this, that once USCIS makes a positive ABC registration determination, the IJ and the BIA lack the authority to interfere with that determination.

[00:28:25] Speaker 02:
I don't see the BIA here as having determined whether your client was a registered member.

[00:28:30] Speaker 02:
I see it as just having concluded that there was no, that he presented no evidence.

[00:28:36] Speaker 02:
I mean, isn't there a difference?

[00:28:37] Speaker 02:
Isn't that just a factual finding?

[00:28:38] Speaker 03:
Your Honor, I would argue no, and the reason being is once the determination by USCIS is made, any subsequent determinations as to the petitioner's eligibility or ability to show the USCIS registration is a subsequent determination, and to the extent it interferes with what USCIS determines, the BIA did not have the adjudicated authority to do so.

[00:29:05] Speaker 03:
And so, Your Honors, this is the

[00:29:07] Speaker 03:
The authority behind petitioners' argument comes from the ABC Settlement Agreement, a paragraph two, as affirmed by the BIA's en banc precedent decision in the matter of Morales in 1995.

[00:29:19] Speaker 03:
And so, Your Honors, this Court not only has jurisdiction to review the merits of petitioners' claims, but we do ask that because the BIA interfered with the USCIS's positive determination, that this Court remanded the BIA, requiring them to respect

[00:29:36] Speaker 03:
the positive determination that was made and consider petitioners NACARA eligibility on the merits.

[00:29:43] Speaker 03:
Your Honors, that brings me to the second argument and that is that 6478 is not a CIMT.

[00:29:51] Speaker 03:
Your Honors, this is premised particularly on the fact that

[00:29:57] Speaker 03:
The BIA's change in position by resurrecting Alfonso Bermudez was an unreasonable departure in the BIA's own profess standards for assessing moral turpitude.

[00:30:11] Speaker 03:
Excuse me, Your Honors.

[00:30:14] Speaker 03:
And for example, in some of the 28-J cases that we submitted before this Court,

[00:30:19] Speaker 03:
The BIA and the Xu Yangguang case specifically stated that Alfonso Bermudez failed to apply the categorical approach that is modernly applied today.

[00:30:30] Speaker 03:
So the fact that the BIA used Alfonso Bermudez as the basis for determining petitioners' convictions for CIMTs is evidence in itself

[00:30:41] Speaker 03:
that this was an unreasonable departure from the BIA's own process standards.

[00:30:48] Speaker 03:
Additionally, Your Honors, sorry, just one moment, I just need to grab my water.

[00:30:59] Speaker 03:
Okay, additionally, Your Honors,

[00:31:02] Speaker 03:
The 647A is a victimless crime, and it also doesn't require the requisite culpable conduct.

[00:31:09] Speaker 03:
Under the categorical approach, the BIA looks to the minimum elements necessary for a conviction, and it also looks to the least culpable conduct resulting in a conviction.

[00:31:21] Speaker 03:
Here for 647A, that's merely someone committing or engaging in consensual sexual conduct in the presence of the public where they reasonably should have known

[00:31:31] Speaker 03:
that somebody could have seen it, but not where they intended somebody to see it.

[00:31:36] Speaker 03:
And so, Your Honors, this really is based on a negligence standard, not based on intent.

[00:31:41] Speaker 03:
And so, because the BIA's resurrection of Alfonso Bermudez resulted in a change in position that was a substantial departure from the BIA's own profess standards, we asked this court to follow this court holding in Vasquez,

[00:31:57] Speaker 03:
Flores v Vasquez versus Garland in 2023 and reversed the BIA's decision that 647A is a CIMT.

[00:32:05] Speaker 03:
Your honors, that brings me to the third issue.

[00:32:07] Speaker 03:
The government has not contested Petitioner's retroactivity claim in its entirety, neither on the merits or whether Petitioner exhausted the issue.

[00:32:16] Speaker 03:
Accordingly, your honors, we ask this court to weigh the Montgomery Ward factors in favor of Petitioner and conclude that on remand,

[00:32:26] Speaker 03:
The BIA may not deem petitioners' convictions crimes involving moral turpitude.

[00:32:32] Speaker 03:
Finally, Your Honor, I want to move on to the government's position with respect to the adverse credibility determination.

[00:32:40] Speaker 03:
The government has tried to argue that the BIA did, in fact, apply the clear error standard.

[00:32:46] Speaker 03:
However, Your Honor, the evidence in the BIA's record clearly indicates that the BIA relied on Wang versus INS.

[00:32:54] Speaker 03:
Specifically, the BIA states that they recognize any of Petitioner's inconsistencies once the heart of Petitioner's asylum claim regarding involvement with the organizations and then cited to wing versus INS.

[00:33:07] Speaker 03:
And so, Your Honors, under this Court's precedence, the very use of the incorrect standard alone warrants a remand.

[00:33:14] Speaker 04:
Why is that standard incorrect?

[00:33:17] Speaker 04:
It says, under pre-Real ID Act law, inconsistencies need to go to the heart of the claim to support an adverse credibility determination.

[00:33:27] Speaker 04:
What is wrong about that statement?

[00:33:29] Speaker 03:
What is wrong about the statement is that the BIA was relying on Wang, which is a single factor role.

[00:33:36] Speaker 03:
the application of a single factor rule versus the clear air standard is the argument practitioners make.

[00:33:42] Speaker 04:
Is there any reference to the single factor rule here?

[00:33:45] Speaker 03:
Not specifically the single factor rule.

[00:33:48] Speaker 04:
I mean, a case can have more than one proposition.

[00:33:51] Speaker 04:
And if they cite it for one proposition and say which one they're citing it for, that's what they cited it for.

[00:33:57] Speaker 04:
And the fact that it's tainted on some other ground, I don't see that there's any suggestion that's what they did.

[00:34:05] Speaker 03:
Your Honor, actually this court in Umana Escobar versus Garland in 2020, just in 2023, reversed a BIA's decision where they said they were using the clear error standard in the determination of the nexus determination.

[00:34:20] Speaker 03:
However, even though there was quite a substantial evidence that the BIA had correctly applied the clear error standard to the analysis,

[00:34:29] Speaker 03:
The fact that the BIA cited to the wrong standard in making that determination was evidence alone that a remand was necessary for the BIA to apply the correct standard.

[00:34:40] Speaker 03:
In addition, Your Honors, to the extent there's any concern about the ambiguity of what standard was actually applied, then a remand would nevertheless be appropriate for the BIA for that

[00:34:53] Speaker 03:
for that to be ascertained what standard was actually being used.

[00:34:57] Speaker 03:
Finally, Your Honor, I do want to point out that the extent the government has relied on a rationale for the agency's decision, or has provided rationale for the agency's decision, this court shouldn't consider such arguments

[00:35:11] Speaker 03:
because their ex-post facto rationale for the agency's decisions is not permissible.

[00:35:17] Speaker 03:
This court's only to consider the arguments put forth.

[00:35:21] Speaker 03:
Accordingly, any arguments offered by the government with respect to why the BIA sided to Wang versus INS from their own rationale should not be considered by this court.

[00:35:33] Speaker 03:
Your Honors, I see that I am over time, so if there are no further questions, then petitioner does rest on the briefs.

[00:35:40] Speaker 04:
Thank you, counsel.

[00:35:41] Speaker 04:
The case just argued is submitted.

[00:35:45] Speaker 04:
We thank both sides for their helpful arguments in this matter, and the court will take a 10-minute recess before proceeding with the next case.