[00:00:04] Speaker 00:
Good morning, Your Honors.

[00:00:05] Speaker 00:
May it please the court, Jenna Beyer from the San Francisco Public Defender's Office, appearing on behalf of petitioner Carlos Dimas Rivas.

[00:00:14] Speaker 00:
I would like to reserve five minutes of my time for rebuttal.

[00:00:20] Speaker 00:
Mr. Dimas was wrongfully convicted of charges which led to the stripping of his residency and his removal order.

[00:00:28] Speaker 00:
When the Superior Court vacated those convictions as invalid and unconstitutional, Mr. Dimas moved to reopen that removal order.

[00:00:39] Speaker 00:
The agency denied for lack of jurisdiction, believing that its hands were tied.

[00:00:45] Speaker 00:
We now know that that understanding is wrong under this court's decision last week in Suate Orellana versus Garland.

[00:00:53] Speaker 00:
We asked the court

[00:00:55] Speaker 00:
to remand for the agency to apply good law and to consider the merits of Mr. DeMis's motion in the first instance.

[00:01:03] Speaker 04:
Just a couple of follow-ups on that.

[00:01:04] Speaker 04:
I guess the first would be, even though it's not jurisdictional, would you agree it's still a mandatory claim processing rule?

[00:01:11] Speaker 00:
I would agree that it's a claim processing rule, Your Honor.

[00:01:14] Speaker 00:
I think the language of the statute is unclear whether it is a mandatory claim processing rule.

[00:01:21] Speaker 00:
But certainly, if it's a claim processing rule, then equitable exceptions

[00:01:25] Speaker 00:
such as waiver and forfeiture apply, which we believe are applicable in this case.

[00:01:29] Speaker 04:
How has the government waived anything here?

[00:01:31] Speaker 04:
I mean, whether you call it jurisdictional, it does seem that the government has been pushing 1231A5 as a blockade against reopening the 2000 removal order.

[00:01:41] Speaker 00:
Judge Bress, when Mr. Demas filed his motion to reopen before the immigration judge, the government did not raise 1231A5.

[00:01:50] Speaker 00:
In fact, they asked for additional time to respond to Mr. Demas' motion to reopen.

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The judge granted that additional time and they failed to file any response at all before the immigration judge.

[00:02:03] Speaker 00:
So we believe that because they did not timely raise this issue when they could have before the immigration court, they have waived it.

[00:02:14] Speaker 04:
It does seem that the immigration judge itself found that it wasn't going to grant relief based on 1231A5.

[00:02:24] Speaker 00:
Correct, Your Honor.

[00:02:25] Speaker 00:
Because of an understanding of law that has since been overturned in Suatayoriana, the immigration judge found, but for these jurisdictional bars, the vacature of these convictions could warrant reopening of the proceedings.

[00:02:40] Speaker 00:
because of 1231A5 and the mandatory nature of the jurisdictional bar, I can do nothing.

[00:02:47] Speaker 00:
And we now know that's incorrect.

[00:02:49] Speaker 00:
The agency can reopen.

[00:02:51] Speaker 00:
And so this court should remand for the agency to decide whether it will.

[00:02:55] Speaker 04:
And so just walk me through kind of how you see this going on remand.

[00:02:59] Speaker 04:
What do you think happens?

[00:03:01] Speaker 04:
And in particular, how do you deal with some of the later removal orders that have also been reinstated?

[00:03:07] Speaker 00:
Yes, absolutely, your honor.

[00:03:09] Speaker 00:
We think that this should be remanded for the agency to determine whether it will reopen the 2000 removal order, which is the original removal order that led to this cascade of events.

[00:03:21] Speaker 00:
And the agency can determine in the first instance what happens with the 2002 removal order and the 2005 removal order.

[00:03:29] Speaker 00:
Answering that question now would be premature without that initial finding about the 2000 removal order.

[00:03:36] Speaker 04:
Let's imagine that you're successful in getting in the IJ saying, you're right, that the 2000 removal order, that's kind of null and void.

[00:03:47] Speaker 04:
But we do have some later removal orders which were occasioned by your clients

[00:03:52] Speaker 04:
unlawful re-entry into the United States, did those later removal orders stand, notwithstanding what happens to the 2000?

[00:03:58] Speaker 04:
Or is your position sort of like a domino effect?

[00:04:02] Speaker 00:
The latter, Your Honor.

[00:04:03] Speaker 00:
We believe that Mr. Demas' removability is built on a house of cards, and that once you remove that initial unlawful removal order, the rest should fall and collapse.

[00:04:13] Speaker 00:
And it could be that the agency agrees with us, and it could be that they disagree and they require some other action to be taken with regard to the later removal orders.

[00:04:22] Speaker 00:
I would point out that the 2005 removal order, whose NTA is in this record, lacks a time and date, which we know is non-compliant with the statute.

[00:04:33] Speaker 00:
And Suate Oriana provides a basis for reopening that removal order as well.

[00:04:38] Speaker 00:
The notice to appear in the 2002 removal is not in this record, so I don't know.

[00:04:44] Speaker 00:
But regardless, the agency should determine in the first instance

[00:04:50] Speaker 00:
what should occur with the 2000 removal order, and the other questions will follow.

[00:04:55] Speaker 03:
Is your point that the 2002 and 2005 removal orders are somehow related to 2000 because the lack of time and date is obviously an independent reason for invalidating, but can you walk through how, if you're saying they're related, how they related, because you said there's kind of a domino effect.

[00:05:15] Speaker 00:
Absolutely, Your Honor.

[00:05:16] Speaker 00:
Mr. Demas came to the United States as a permanent resident.

[00:05:20] Speaker 00:
And he was convicted of charges that were found to be unconstitutional.

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And if it had not been for those unlawful convictions, he never would have received this 2000 removal order.

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And the subsequent removals are based on him being present without admission or parole, which never would have happened.

[00:05:41] Speaker 00:
had he been permitted to keep his permanent residency.

[00:05:45] Speaker 04:
I mean, that seems like a whole separate question that's not in front of us, but it's an interesting one as to what happens if the 2000 removal order is vacated.

[00:05:53] Speaker 04:
What about these other ones that are occasioned, not just by the 2000 removal order, but also by his illegal reentry into the United States?

[00:06:02] Speaker 04:
I wanted to ask you, in your supplemental letter brief, you took the position that what we should do is remand on the 2000

[00:06:10] Speaker 04:
and then hold the others, the other two petitions, why would we do that?

[00:06:15] Speaker 00:
I think there are separate reasons to remand those petitions based on errors in the agency's analysis, but it would be confusing for the agency to both be adjudicating the validity of the 2000 removal order and also simultaneously be adjudicating his withholding and cat claim.

[00:06:37] Speaker 00:
uh, in the remaining two petitions.

[00:06:40] Speaker 00:
If the court disagrees, then we would ask that all three petitions be remanded to the agency.

[00:06:45] Speaker 00:
And I can talk about why the other two petitions should also be remanded.

[00:06:49] Speaker 00:
But to me, what makes most sense is for the agency to address this original removal order and then decide what happens with his reinstatement of removal and his withholding and cat claims.

[00:07:02] Speaker 04:
I mean, the other two petitions, which are about withholding CAT and then change country conditions, don't really have to do with the fact of removal.

[00:07:10] Speaker 04:
They're seeking relief from removal.

[00:07:13] Speaker 04:
It does seem like an independent set of questions.

[00:07:15] Speaker 04:
I mean, you may have an argument that, in fact, the 2005 removal order itself should now fall when the 2001 falls.

[00:07:23] Speaker 04:
I get that, but these other two petitions are not about that.

[00:07:26] Speaker 04:
They're just about withholding in CAT, and they do seem relatively or completely independent, as far as I can tell.

[00:07:32] Speaker 00:
If that's the court's view, then we would ask that those petitions be remanded as well.

[00:07:36] Speaker 00:
I think the most glaring errors come with regard to his motion to reopen based on changed circumstances in El Salvador.

[00:07:44] Speaker 00:
The agency found that the state of exception

[00:07:47] Speaker 00:
constitutes merely an incremental change in conditions.

[00:07:51] Speaker 00:
And that's just not the case under this court's precedent or on the facts of this case.

[00:07:57] Speaker 00:
Mr. Dimas is a former gang member.

[00:08:00] Speaker 00:
And under the state of exception, which is an entirely new legal regime under President Bukele, individuals meeting his characteristics are being rounded up.

[00:08:11] Speaker 00:
Warrantless arrests are being conducted.

[00:08:13] Speaker 00:
and people are being warehoused under inhumane conditions.

[00:08:18] Speaker 00:
And this cannot be characterized as merely a continuation of prior circumstances.

[00:08:24] Speaker 00:
And so on that basis, we would ask for remand in that in 221395 as well, Your Honor.

[00:08:31] Speaker 02:
How do you distinguish between a material change in country conditions and an incremental change?

[00:08:43] Speaker 00:
Well, in this case, Your Honor, this is an entirely new set of laws that applies.

[00:08:49] Speaker 00:
And in fact, the gloves are off for the Salvadoran government.

[00:08:52] Speaker 00:
They no longer have to abide by due process.

[00:08:55] Speaker 00:
They no longer have to abide by human rights protections.

[00:08:59] Speaker 00:
Previously, individuals facing charges of illicit association with a gang faced three to five years in prison.

[00:09:06] Speaker 00:
Now they face 20 to 30 years.

[00:09:09] Speaker 00:
So whatever an incremental change is, this certainly does not meet those facts.

[00:09:14] Speaker 02:
And this is being applied against former gang members?

[00:09:18] Speaker 00:
Former?

[00:09:19] Speaker 00:
Anyone suspected of gang membership?

[00:09:21] Speaker 02:
Anyone who has a tattoo?

[00:09:23] Speaker 00:
Correct, Your Honor.

[00:09:24] Speaker 00:
And the evidence in the record shows that people who have tattoos are being picked up, regardless of whether or not they are, in fact, current gang members.

[00:09:34] Speaker 00:
And many innocent people are

[00:09:36] Speaker 00:
being caught in the fray of this state of exception, which as the name indicates is exceptional.

[00:09:42] Speaker 00:
It's not the norm for El Salvador.

[00:09:47] Speaker 00:
If there are no further questions, I will reserve the remaining time for rebuttal.

[00:09:51] Speaker 03:
Thank you.

[00:09:57] Speaker 01:
May it please the court, Jennifer Bowen on behalf of the respondent, the US Attorney General.

[00:10:03] Speaker 01:
I'm going to start with case number 22-2101.

[00:10:06] Speaker 01:
That's the motion to reopen the 2000 removal order, as that seems to be where the court is paying attention.

[00:10:17] Speaker 01:
Petitioners request that the other two petitions be held in abeyance.

[00:10:23] Speaker 01:
there's no basis for it.

[00:10:26] Speaker 01:
As Your Honor noted, it's a completely independent situation.

[00:10:30] Speaker 01:
In the motion to reopen, the withholding only proceedings, petitioner noted, or the motion to reopen the 2000 proceeding, petitioner noted that they weren't seeking to reopen the 2005 removal order.

[00:10:44] Speaker 01:
It's the question of whether or not, even if the 2000 removal order is reopened, petitioner remains removable

[00:10:52] Speaker 01:
on the valid 2005 removal order, which was reinstated.

[00:10:56] Speaker 01:
Petitioner notes for the first time here that that NTA lacks the date and time, but there's no evidence in the record here that Petitioner has sought to reopen the 2005 removal order based on that

[00:11:08] Speaker 01:
insufficient.

[00:11:09] Speaker 04:
That's true.

[00:11:09] Speaker 04:
But I mean, I took the petition to be saying, well, we're focused on the 2000 removal order.

[00:11:14] Speaker 04:
That was sort of the how this whole thing began.

[00:11:16] Speaker 04:
We're going to get that that one vacated, and then we're going to go from there and start trying to vacate some of these other ones.

[00:11:22] Speaker 04:
But we have to start where it began.

[00:11:26] Speaker 01:
Fair enough.

[00:11:28] Speaker 01:
The respondent's position would be that the 2002 and 2005 are unrelated, as they're based on his choice to illegally re-enter the United States.

[00:11:37] Speaker 04:
I thought you would say that, but the thing is, we don't have any ruling from the BAA on that.

[00:11:41] Speaker 04:
You may be right, but I don't think that's really before us.

[00:11:45] Speaker 02:
Isn't that for an IJ to decide if we remand?

[00:11:50] Speaker 01:
Isn't it for an, I apologize your honor, I don't understand, is it for the IJ to decide if you remand?

[00:11:55] Speaker 02:
Remand for a factual development there.

[00:11:58] Speaker 02:
There's nothing in the record that the 2000 order was ever reinstated, is that correct?

[00:12:05] Speaker 01:
The record is not clear as to whether or not the 2000 order was reinstated.

[00:12:10] Speaker 01:
He did reenter in 2001.

[00:12:13] Speaker 01:
He was prosecuted and removed, but whether or not that removal was pursuant to the reinstatement, it's not clear.

[00:12:20] Speaker 01:
That's not in the record.

[00:12:22] Speaker 01:
Then he comes back in, we get a 2002 removal order at which point we never go back to the 2000 removal order.

[00:12:28] Speaker 01:
It's either reinstatement of the 2002 removal order or removal proceedings again in 2005 and reinstatement of the 2005 removal order at least twice.

[00:12:38] Speaker 02:
But my point was it doesn't matter what the impact on the 2002 or 2005 orders

[00:12:49] Speaker 02:
if the 2001 needs to be re-evaluated given the fact it wasn't reinstated and then it would be up to the BIA eventually to decide the impact, if any, on 2002 and 2005 orders, right?

[00:13:05] Speaker 01:
Respondent's position would be that the 2002 and 2005 orders are independent, and that they stand alone.

[00:13:11] Speaker 01:
And even if the 2000 order is reopened, petitioner remains removable on the 2002 and 2005 removal orders.

[00:13:20] Speaker 02:
But that's not an issue before us right now, is it?

[00:13:23] Speaker 01:
No, Your Honor.

[00:13:24] Speaker 01:
That's Respondent's position here, that even if the 2000 removal order is remanded,

[00:13:31] Speaker 01:
The reinstatement of the 2005 removal order, which remains valid, is still the source of the court's jurisdiction in the first two PFRs, where this case involves the consolidation of three petitions for review, two of which do not rely in any way on whether or not the 2000 removal order

[00:13:52] Speaker 01:
is reopened.

[00:13:54] Speaker 04:
In the petition as to the 2000 removal order, what does the government believe we should do with that in light of SWATA?

[00:14:05] Speaker 01:
Yes, Your Honor.

[00:14:06] Speaker 01:
In light of SWATA, which

[00:14:11] Speaker 01:
We've not had a chance to brief, obviously, but- Well, we did give you a chance to brief.

[00:14:15] Speaker 01:
We gave you a supplemental brief.

[00:14:16] Speaker 01:
Well, yes, Your Honor.

[00:14:17] Speaker 01:
I apologize, but yes.

[00:14:20] Speaker 01:
In light of SWATA, which was issued last Tuesday, respondents' current position is that there's no redressability.

[00:14:27] Speaker 01:
As we noted in the letter brief, there's no redressability where the court still has jurisdiction over and must decide the first two petitions for review.

[00:14:37] Speaker 01:
So the question, his removability, even if it's sent back, there's no redressability.

[00:14:44] Speaker 04:
I thought your answer to Judge Tunheim was that that issue is not before us.

[00:14:49] Speaker 04:
in terms of what would happen to these other removal orders.

[00:14:53] Speaker 04:
Because you want to basically say there's no redressability because there's a few other removal orders in place.

[00:14:59] Speaker 04:
And again, you may be right about that, but we don't have any ruling from the BIA.

[00:15:08] Speaker 01:
There's no ruling from the BIA as to whether or not the two other removal orders remain in place.

[00:15:12] Speaker 04:
No, there's no ruling from the BIA that if the 2,000 removal order falls, whether the other two removal orders stand.

[00:15:19] Speaker 01:
There is no removal.

[00:15:21] Speaker 01:
I mean, no ruling from the VA on that issue.

[00:15:23] Speaker 01:
Respondent's position is that as a matter of law, the other two stand independently where they're not based on his criminal convictions, which were vacated.

[00:15:32] Speaker 01:
They're based on his unlawful return.

[00:15:36] Speaker 04:
On the 2000 removal order, I asked the government, excuse me, I asked the petitioner about

[00:15:45] Speaker 04:
whether this was a mandatory claim processing rule, and the petitioner said, well, maybe, but the government waived or forfeited that.

[00:15:53] Speaker 04:
How do you respond to that?

[00:15:54] Speaker 01:
Your Honor, respondent does not concede that the issue was waived or forfeited, but we do understand that under Bonilla, where the board solely addressed, it was, petitioners sought reopening of the 2000 removal order solely suesponte.

[00:16:13] Speaker 01:
The board held that it lacked jurisdiction, that the IJ, the agency, lacked jurisdiction to address that.

[00:16:19] Speaker 01:
So if the issue before the court were solely the 2000 removal order, then under SWATA, respondent understands that it would require remand.

[00:16:30] Speaker 01:
The question is, what happens in this case, which is

[00:16:34] Speaker 01:
This is different in that it involves three consolidated petitions for review and two petitions for review are not resolved by a remand under SWATA.

[00:16:49] Speaker 01:
As for petitioners' other contentions that the first two petitions review should be reinstated, respondent, as argued in the brief, asserts that the record fully supports the agency's denial of withholding of removal and protection under CAT in case number 20-73679, and that petitioner did not show sufficiently changed country conditions

[00:17:14] Speaker 01:
or sufficiently changed country conditions related to his change in personal circumstances to warrant reopening of those withholding proceedings in case number 22-1935.

[00:17:25] Speaker 03:
Can you address the 2019 withholding only a motion to reopen?

[00:17:31] Speaker 03:
I know the agency says just a continuation of what's happened, but seems like it's actually a pretty historic change is what's happening in El Salvador.

[00:17:40] Speaker 03:
I think the murder rate there has declined by 90% and the criticism there, and it's been very popular.

[00:17:46] Speaker 03:
I think you got reelected by something like 80% of the vote, but the criticism there is that it's come at

[00:17:51] Speaker 03:
the cost of civil liberties and innocent people have been dragged in.

[00:17:54] Speaker 03:
So it seems like there's been a pretty dramatic change in terms of policies in El Salvador.

[00:18:01] Speaker 01:
Yes, Your Honor.

[00:18:01] Speaker 01:
The record shows that the Board, look, petitioner had the burden to show the change in circumstances.

[00:18:09] Speaker 01:
Here in his withholding only proceedings, he came forward and said, please provide protection from removal where I was targeted as a former gang member based on my tattoos while I was in El Salvador.

[00:18:22] Speaker 01:
under, I believe, another government program manager, I believe was the name.

[00:18:28] Speaker 01:
He then comes forward and says, no, please reopen my withholding only proceedings.

[00:18:33] Speaker 01:
The government is targeting former gang members with tattoos.

[00:18:37] Speaker 01:
And the board held that based on what the petitioner submitted, that that was not sufficient to show change circumstances to warrant reopening of the withholding only proceedings.

[00:18:51] Speaker 02:
But the numbers are pretty staggering, aren't they, in terms of the dramatic increase that the record shows in the number of arrests of gang members and former gang members under the new administration in El Salvador?

[00:19:06] Speaker 01:
Yes, Your Honor.

[00:19:07] Speaker 01:
I believe that the Board addresses that and deems those conditions to be worsened conditions, but not sufficiently changed conditions.

[00:19:22] Speaker 01:
Um, if the court has no further questions, respondent will rest on his brief.

[00:19:30] Speaker 01:
Thank you.

[00:19:31] Speaker 03:
Great.

[00:19:31] Speaker 03:
Thank you.

[00:19:38] Speaker 00:
Briefly, Your Honors.

[00:19:41] Speaker 00:
Suete Arena marks a fundamental change in law and is clearly requires remand in this case.

[00:19:48] Speaker 00:
To the extent that the court believes that all three petitions must be treated together, then they all must go back down to the agency to determine in the first instance what happens with the 2000 removal order and whether Mr. Dimas has shown changed circumstances in El Salvador.

[00:20:06] Speaker 00:
As your honors have noted, the changes are dramatic.

[00:20:10] Speaker 00:
This legal regime did not exist in 2019 when Mr. Dimas was applying for withholding in CAT.

[00:20:16] Speaker 00:
Since that time, Mr. Dimas has been tested positive for HIV.

[00:20:22] Speaker 00:
He has also come out as queer.

[00:20:24] Speaker 00:
And these are additional vulnerabilities that he faces both under the state of exception and under a regime that has shown to be

[00:20:34] Speaker 00:
homophobic, eliminating agencies that are designed to protect LGBTQ individuals.

[00:20:40] Speaker 00:
Reuters notes a wave of murders against LGBTQ people and rising violence against LGBTQ people.

[00:20:48] Speaker 00:
So we believe for all of those reasons that case number 221395 should also be remanded.

[00:20:58] Speaker 00:
If your honors have no further questions, petitioner Mr. Demos will rest.

[00:21:02] Speaker 03:
Thank you both for the helpful arguments.

[00:21:04] Speaker 03:
The case has been submitted.