[00:00:15] Speaker 04: Morning may it please the court. [00:00:17] Speaker 04: Marcus Curtis for petitioner Vitaly Chmuck. [00:00:20] Speaker 04: I plan to reserve five minutes for rebuttal. [00:00:23] Speaker 04: The agency here found Mr. Chmuck removable and denied his request for relief because of a conviction for possessing a stolen vehicle under Washington law. [00:00:34] Speaker 04: But the agency's analysis was wrong in all the ways that matter. [00:00:37] Speaker 04: Mr. Chu's conviction was not an aggravated felony because the mens rea required for his offense can be satisfied by a reason to believe, while the generic offense specifically excludes that mens rea. [00:00:50] Speaker 04: The state crime also prohibits disposing of stolen property, while the generic offense does not. [00:00:56] Speaker 04: So even if the I.J. [00:00:58] Speaker 04: had actually performed a categorical analysis, and to be clear, there's no analysis here, the analysis couldn't stand. [00:01:07] Speaker 04: The state crime is broader than the federal offense, and so Mr. Chmooke wasn't removable on that ground. [00:01:13] Speaker 02: Is there a practical way you can... I suppose you could sit and try to think of a hypothetical, but practically speaking, it seems to me that if you're going to dispose of [00:01:25] Speaker 02: property, you kind of have to possess it in some sort. [00:01:30] Speaker 04: Yeah, Judge Van Dyke. [00:01:30] Speaker 04: I mean, it's it's we agree that it's closely related to possession. [00:01:37] Speaker 04: But as we sort of laid out in the briefs, there are [00:01:41] Speaker 04: you know, it is possible to sort of broker in stolen goods. [00:01:45] Speaker 02: It's theoretically possible, you agree, that's not, you know, that's, Supreme Court, I think, has made kind of clear that's not exactly the standard, if you could, just because you could hypothesize that something could possibly happen. [00:01:55] Speaker 02: It has to at least be like, you know, I don't want to use the word likely, maybe that's too, but it has to be something that could practically happen in the state. [00:02:04] Speaker 02: They actually would enforce the statute, though. [00:02:06] Speaker 04: No, right, Judge Van Dyck. [00:02:07] Speaker 04: I mean, well, so the realistic probability test, though, as long as, under this circuit's precedent, as long as the express text of the statute makes the crime broader than the generic offense, that satisfies the realistic probability test. [00:02:22] Speaker 02: That's why I'm asking. [00:02:23] Speaker 02: I'm trying to think of a realistically probable way that you could dispose of something that you didn't possess in some sense. [00:02:33] Speaker 04: If there's a group of retail thieves in say Portland, Oregon near Nike headquarters and they don't have sort of the market to move as many goods as they'd like to, they can work through a middleman in downtown LA who has access to these customers [00:02:53] Speaker 04: and say look we're so more like you're a broker thief that doesn't actually ever possess it but you just connect person a in person you know right judge i mean you have a customer base that the these themselves don't have and so you're able to [00:03:08] Speaker 04: say, look, I have 50 clients that will probably accept this product. [00:03:13] Speaker 02: And I guess the next question is, are there any cases where it's been applied that way? [00:03:18] Speaker 02: And I mean, as I remember correctly in Washington, they say, Washington courts have said there really isn't a difference between these two things, for the reason I'm saying, that you pretty much have to possess something usually to dispose of it. [00:03:34] Speaker 04: No, no, that's right, Judge Van Dyke. [00:03:36] Speaker 04: The Washington courts have said that in the context of explaining that it's a single-means crime, and so the jury doesn't have to agree on [00:03:45] Speaker 04: all five means of possession. [00:03:48] Speaker 04: They just have to agree on one to secure a conviction. [00:03:51] Speaker 04: But to your question, no, we're not aware of a specific Washington case. [00:03:55] Speaker 04: But again, we rely on the express text of the statute. [00:03:58] Speaker 00: I was going to ask, doesn't the Tyler case foreclose your argument? [00:04:04] Speaker 00: Because the Supreme Court said these are not separate acts, but just facets of the same criminal conduct. [00:04:11] Speaker 00: And so I guess it's just [00:04:13] Speaker 00: synonyms to the ultimate act of possession. [00:04:17] Speaker 04: Right. [00:04:17] Speaker 04: Judge Sanchez, it's obviously a tough case for us, but even in Tyler, the court recognizes that this is a multifaceted description of the ways that one can possess property. [00:04:30] Speaker 04: And so the point, even beyond the single means description about what it takes for the state to secure a conviction, the point though is the conduct that's covered. [00:04:40] Speaker 04: You can define possession in a lot of [00:04:43] Speaker 04: ways and maybe they're closely related and different on the margins, but the question that has to be asked is what is the conduct that's covered. [00:04:51] Speaker 04: And so I think saying that they're closely related doesn't foreclose the argument that it actually does encompass additional conduct. [00:04:59] Speaker 04: We spent some time in reply on Mathis, just explaining how, in that case, the two burglary statutes at issue, or the burglary crimes at issue, the difference was a definition. [00:05:11] Speaker 04: It was a definition in the location element. [00:05:14] Speaker 04: The state defined the location element in ways that covered more locations than the federal offense. [00:05:21] Speaker 04: And the court, in sort of its broader explanation of what it was trying to resolve in the case, said that the differences in definition do matter. [00:05:29] Speaker 04: And if elements sort of cover additional conduct, that's taken into account as part of the categorical analysis. [00:05:39] Speaker 02: You did a great job of briefing this case, and I read the brief carefully. [00:05:42] Speaker 02: I think we all did. [00:05:44] Speaker 02: But there was one issue that there wasn't a lot of briefing about, which I don't blame you. [00:05:48] Speaker 02: So I'd like to, before you run out of time, kind of talk to you about that. [00:05:52] Speaker 02: It was brief, but it wasn't discussed in depth. [00:05:54] Speaker 02: And that is the issue of exhaustion. [00:05:56] Speaker 02: And particularly, I'm interested in that as to the particularly serious crime issue. [00:06:01] Speaker 02: And as I recall, the government said it's exhausted. [00:06:04] Speaker 02: And I think in your reply review, you said no, because as long as an issue is addressed, [00:06:09] Speaker 02: At least one of your arguments was, as long as an issue is addressed by the BIA, it's not exhausting. [00:06:13] Speaker 02: And it is true. [00:06:14] Speaker 02: I'm looking at the BIA's decision on page three. [00:06:17] Speaker 02: It has one sentence and then some citations for that case matter, fresco factor. [00:06:24] Speaker 02: But basically, it has one sentence. [00:06:25] Speaker 02: It says, we also agree with the immigration judge's conclusion that the respondent's conviction of possession of stolen property was a conviction of a particularly serious crime. [00:06:35] Speaker 02: And so I'm trying to figure out, [00:06:38] Speaker 02: if that actually fits within this concept of if the BIA addresses. [00:06:45] Speaker 02: And specifically, I'd like, would it be true if the BIA just said, we agree with the IJ's conclusion as to asylum, say? [00:06:53] Speaker 02: Just, you know, like there's asylum withholding and cat claims. [00:06:57] Speaker 02: But asylum was never raised at all to the BIA. [00:07:02] Speaker 02: It wasn't challenged, the IJ's decision on asylum. [00:07:05] Speaker 02: If the BIA says, [00:07:07] Speaker 02: We agree with the IJ's conclusion as to asylum, period. [00:07:11] Speaker 02: And so essentially what the IJ is doing is adopting the IJ's decision. [00:07:19] Speaker 02: But our cases still say, if you just have a one-sentence order adopting the [00:07:26] Speaker 02: uh... the ideas conclusion you know because sometimes to be a does that right i'll just have one sentence then you still have to you still have to challenge it before the p i a you don't you know just doesn't do away with the exhaustion off exhaustion requirement which makes some sense to me [00:07:42] Speaker 02: First of all, you would agree that they did not raise a particularly serious crime issue at all to the BIA? [00:07:52] Speaker 02: No, we agree. [00:07:54] Speaker 02: It wasn't raised at all. [00:07:55] Speaker 02: The BIA has one sentence that adopts or agrees with the IJ's conclusion on particularly serious crime. [00:08:03] Speaker 02: how does that exhaust it? [00:08:04] Speaker 02: How does that exhaust it? [00:08:06] Speaker 04: I think even the one sentence does exhaust the argument, Judge Van Dyke, because it's a signal that it considered the IJ's analysis on the issue. [00:08:13] Speaker 02: But here's the problem. [00:08:14] Speaker 02: Your whole argument is that the IJ did not address certain things. [00:08:19] Speaker 02: And the IJ's decision was deficient. [00:08:22] Speaker 02: It didn't address certain things. [00:08:23] Speaker 02: That's correct. [00:08:24] Speaker 02: That was never presented to the BIA, so the BIA couldn't even consider that. [00:08:28] Speaker 02: So when the BIA adopts this supposedly [00:08:31] Speaker 02: It's a deficient rationale. [00:08:33] Speaker 02: I mean, you could also say the BI didn't address it because it just adopted. [00:08:37] Speaker 02: So basically, the IJ didn't address it. [00:08:43] Speaker 02: He didn't address it, challenging it to the BIA. [00:08:45] Speaker 02: The BIA adopted it, and therefore arguably didn't address it, right? [00:08:49] Speaker 02: So nobody addressed it, and yet somehow it's not exhausted. [00:08:53] Speaker 04: Or it is exhausted. [00:08:54] Speaker 04: It is, right, right, Judge. [00:08:55] Speaker 04: So I think even with matter of Burbano, too, I mean, in terms of the signal being sent that it considered the issue fully, in adopting the IJ's analysis, including the sentence that it reviewed the PSC analysis, [00:09:08] Speaker 04: that the IJ put forward. [00:09:10] Speaker 02: That's the thing. [00:09:11] Speaker 02: And if you take Matta-Ribbano to the ultimate conclusion, you just have a one-sentence adoption of the IJ's decision, we've still said you have to raise—you can't just like—you still have to exhaust that asylum, say, to bring an asylum claim. [00:09:26] Speaker 04: And there's a difference with pro se petitioners as well, Your Honor, which I think is another element here. [00:09:32] Speaker 02: I mean, I think the broader point is that— We really are excusing exhaustion here, because the BIA never had an opportunity—if we were to accept your argument, the BIA—you'd agree the BIA never had an opportunity to address that, because it just wasn't—it wasn't in the IJ's decision, so the BIA couldn't get it out of the IJ's decision. [00:09:49] Speaker 02: I mean, indeed, that's your argument. [00:09:51] Speaker 02: It wasn't presented to them. [00:09:53] Speaker 02: And so for the BIA to say, yeah, we agree, it's no surprise it didn't agree. [00:09:57] Speaker 02: The argument wasn't presented. [00:09:59] Speaker 02: They didn't have your excellent advocacy at that stage. [00:10:01] Speaker 04: Well, it addressed the issue, but it didn't necessarily address the subsidiary arguments. [00:10:09] Speaker 04: But in reviewing the ISJ's decision, it addressed the broader [00:10:13] Speaker 02: I think it doesn't just create sort of an incentive for . [00:10:18] Speaker 02: . [00:10:18] Speaker 02: . [00:10:18] Speaker 02: it kind of creates a perverse incentive for people not to present issues to the I.J., hope that the . [00:10:23] Speaker 02: . [00:10:23] Speaker 02: . [00:10:23] Speaker 02: to the BIA, hope that the BIA will, like, just have a one-line acceptance of the I.J.' [00:10:28] Speaker 02: 's order and then be able to essentially bypass the . [00:10:31] Speaker 02: . [00:10:31] Speaker 02: . [00:10:31] Speaker 02: because if you present it to the BIA, then the BIA would presumably address it, sort of like the previous case you heard. [00:10:37] Speaker 02: You know, if you actually present it to the district court judge, then we don't review for [00:10:40] Speaker 02: You know, it's similar here. [00:10:42] Speaker 02: It actually creates a perverse incentive to not present... I'm not sure, Your Honor. [00:10:46] Speaker 04: I mean, I think... I don't think anyone wants to have to contend with potential exhaustion arguments once you get to the Ninth Circuit. [00:10:53] Speaker 02: So I don't think it... Not if we say that they're not... Not if we say that... I mean, it depends on how we treat exhaustion. [00:10:57] Speaker 02: But if we treat it the way you're saying, then it actually does create, like... I mean, even if you're counseled, I would say counsel would be like, well, if we'd raise this to the BIA, the BIA will probably address it and, you know, [00:11:10] Speaker 02: and do its own analysis or something. [00:11:12] Speaker 02: So let's not raise it, and then we can hopefully get the Ninth Circuit to remand and buy us another couple more years. [00:11:19] Speaker 04: It's possible, but it's also possible that the BIA locks in some very unfavorable analysis. [00:11:25] Speaker 03: If the BIA hadn't put the sentence in its report or its order, would we have an exhaustion problem then? [00:11:35] Speaker 04: potentially, Judge Nelson. [00:11:36] Speaker 04: I mean, then I probably would have made it. [00:11:38] Speaker 03: It's a little bit odd that exhaustion turns on whether the BIA affirmatively puts response to an argument not made. [00:11:45] Speaker 04: It might be a quirk in how the law is structured currently. [00:11:51] Speaker 04: But to your point, I think if that was the situation, I would have had arguments about his pro se status. [00:11:55] Speaker 04: I would have had arguments more about the substance of what was in his pro se brief before the BIA to try to get away. [00:12:02] Speaker 00: Is it fair to even characterize this as just a one line? [00:12:05] Speaker 00: Because you've got on the beginning of the decision, we agree with the IJ's reasoning for both asylum and withholding. [00:12:12] Speaker 00: and citing Matter of Bourbonos with adopting the IJ's decision. [00:12:17] Speaker 00: And then when it again addresses the particularly serious offense side, it has the line, but then it also cites and adds parentheticals to several cases, including Matter of Fantescu, which are the elements, and Anaya Ortiz. [00:12:34] Speaker 00: So really, it's the better part of a paragraph [00:12:37] Speaker 00: You know, so I'm having a hard time seeing this as a non-merits-based decision when it actually has almost a full paragraph of discussion about the particularly serious crime, even if some of that is run through parentheticals to cases. [00:12:52] Speaker 04: Right, Judge Sanchez. [00:12:52] Speaker 04: And to this point, I mean, the PSE determination was wrong, to be clear. [00:12:57] Speaker 04: I mean, as this court knows, the BIA mandates a specific two-step framework for PSE determinations. [00:13:03] Speaker 04: And at the first step, [00:13:05] Speaker 04: uh... the first steps in elements only examination to determine whether those elements potentially bring the crime within the and what is it would be a say about that what what the agency didn't do that analysis back to the idea didn't say anything about that to be a insane thing about that here and so it just seems weird ike you could have fourteen paragraphs here [00:13:24] Speaker 02: But, I mean, the reason the BIA didn't discuss it, presumably, is because it wasn't presented. [00:13:28] Speaker 04: And it just seems—it seems— Or the BIA adopted the IJ's—the IJ's recitation of the elements, the IJ's decision to complete step 1. [00:13:36] Speaker 02: Yeah, I guess that's kind of what I'm getting at. [00:13:37] Speaker 02: I realize we're taking it too. [00:13:38] Speaker 02: But what I'm getting at is it makes sense when an agency [00:13:43] Speaker 02: It makes sense when a lower court or an agency that we're reviewing has some analysis that wasn't made. [00:13:51] Speaker 02: To say that we don't get to review that would be weird, because you just got ruled against by some agency, and now you can't challenge that basis because the agency came up with something out of left field. [00:14:01] Speaker 02: So that's where I think it makes a lot of sense to have this. [00:14:04] Speaker 02: As long as the agency addressed it, it's properly enforced, even if you didn't present it to the agency. [00:14:09] Speaker 02: But where the agency simply [00:14:11] Speaker 02: says, yeah, that looks fine to me, what happened below, but nobody told the agency that there was a deficiency with it. [00:14:19] Speaker 02: And now you're saying, oh, there's a deficiency. [00:14:22] Speaker 02: That seems very unfair to the agency. [00:14:24] Speaker 02: It's precisely the reason why we have exhaustion is because it seems like I know your client was probably not [00:14:31] Speaker 02: intentionally laying behind the log, but that's what ends up happening. [00:14:35] Speaker 04: Right, but the counter assumption though is that the BIA reviewed the IJ's analysis and agreed with the conflation. [00:14:42] Speaker 02: It's an adversarial process. [00:14:43] Speaker 04: You agree with that. [00:14:44] Speaker 04: That's the whole point. [00:14:45] Speaker 02: Yes, of course. [00:14:48] Speaker 02: We have exhaustion in a lot of different contexts. [00:14:50] Speaker 02: You can make that argument. [00:14:51] Speaker 02: You say, well, the idea is that in the prison context, the person, that the agency reviewed it, and that the prison officials reviewed this, and they should have caught the mistake, even though you didn't raise it to them. [00:15:03] Speaker 02: But as you no doubt remember, you have exhaustion in that, you have to raise it. [00:15:08] Speaker 04: Of course, of course. [00:15:09] Speaker 04: I think it's just important to realize that the IJ conflated the steps here. [00:15:14] Speaker 04: There's a clear two-step framework. [00:15:15] Speaker 04: The IJ [00:15:16] Speaker 04: didn't do step one and it got step two wrong because it omitted dangerousness from the analysis. [00:15:23] Speaker 04: We'll give you some time for rebuttal, don't worry. [00:15:25] Speaker 04: Thanks, Joseph Nelson. [00:15:26] Speaker 04: All right, thank you. [00:15:39] Speaker 01: Good morning, Your Honors, and may it please the Court, Imran Zaydi for the Attorney General. [00:15:43] Speaker 01: The Board here correctly decided both issues in this appeal by concluding that first, petitioners' conviction for possession of a stolen vehicle in Washington makes him removable as an aggravated felon, and second, that that offense also amounts to a particularly serious crime. [00:15:56] Speaker 01: I'd like to start with exhaustion because there's some questioning about that. [00:16:00] Speaker 01: We're prepared to address this on the merits here, so for the most part, we're happy to submit on the papers. [00:16:05] Speaker 03: I'd like you to walk through exhaustion because my question is if it is exhausted, if we were to conclude that it was exhausted, would we still address it on the merits? [00:16:14] Speaker 03: I guess we have the discretion to rule on both issues, right? [00:16:19] Speaker 01: You do, Your Honor, and the way we briefed this and the reason we briefed it on the merits is because to the large extent we believe that this can be resolved as a matter of interpreting state law, then you can address it on the merits there. [00:16:31] Speaker 01: To the extent that you think anything about the categorical analysis here would require construction of the generic definition or anything about fleshing that out, that would be why you would need to remand to the agency for it to determine what the scope of the generic definition is for some of these arguments. [00:16:48] Speaker 03: we do think all of that your point is even if we were to be inclined to go that way on the merits that would have that was not exhausted that was not exhaust there's no question and you've raised it as a belt suspenders approach for the court I'm just trying to figure out how the court should grapple with this issue so I think first let me quickly address it up at the exhaustion argument why we think it's appropriate here we recognize that the board adopted and affirmed under matter Burbano [00:17:14] Speaker 01: One of the citations that we did not provide is there is an actual authority from this court for the specific context here, and they actually address a particular serious crime determination. [00:17:22] Speaker 01: And that's RSD versus Holder. [00:17:25] Speaker 01: And I can give you the site at 659 Federal Third 925. [00:17:28] Speaker 01: And that's a published decision from 2011 in which a petitioner did not raise any challenge at all to the particular serious crime determination. [00:17:38] Speaker 01: The board adopted the particular serious crime determination. [00:17:42] Speaker 01: And yet, despite that adoption, this court considered the issue unexhausted because, as Judge Van Dyke suggests, none of the arguments to put the board on notice had been presented. [00:17:52] Speaker 01: So yes, the board can adopt the analysis. [00:17:56] Speaker 01: The board can even, to your point, Judge Sanchez, provide a couple sentences with parentheticals. [00:18:02] Speaker 01: I guarantee you those are stock sites. [00:18:03] Speaker 03: What about two paragraphs? [00:18:05] Speaker 03: I mean, I guess your point is it doesn't matter how robust the argument is if it just wasn't raised. [00:18:12] Speaker 01: I actually, I don't agree with that, Your Honor. [00:18:14] Speaker 01: We're fine with, if the board does get into some measure of analysis, notwithstanding the failure to present any of those arguments before it, if the board starts to separately provide merits-based analysis, for instance, of the elements within the ambit argument here, or the improper factors argument here, or the separate dangerousness, the board can adopt and affirm, and sometimes it does this oddly, it adopts and affirms, and then it would be exhausted. [00:18:36] Speaker 01: And then it would be exhausted, yes. [00:18:38] Speaker 00: We're fine with that. [00:18:39] Speaker 00: Was Arstie a matter of Bourbono type case? [00:18:42] Speaker 01: It was. [00:18:42] Speaker 01: It was an adoption under a matter of Bourbono. [00:18:44] Speaker 00: Because I've read several of these cases where matter of Bourbono when the BIA is adopting the IJ's analysis, as long as the IJ has addressed the issues, it's deemed exhausted for purposes of Ninth Circuit review. [00:18:58] Speaker 00: Why doesn't that, why don't those line of cases apply here in your view? [00:19:03] Speaker 01: Well, and I don't know in the abstract, Judge Sanchez, whether in those cases, the board did more than just adopt and actually provided some analysis of some issues, whether based on arguments that are raised to it or not. [00:19:14] Speaker 01: I presume not, because we're talking about where it's been exhausted. [00:19:16] Speaker 00: You know, where the IJ has itself provided analysis concerning the claim itself. [00:19:23] Speaker 01: Right. [00:19:23] Speaker 01: No, I realize that. [00:19:25] Speaker 01: I guess what I'm saying is the IJ provides analysis, like it did here. [00:19:28] Speaker 01: The board adopts and adopts all that reasoning. [00:19:30] Speaker 01: We accept that, too. [00:19:32] Speaker 01: none of that reasoning actually responds to the arguments that the petitioner is now raising for the first time on appeal. [00:19:38] Speaker 02: So you think there's a distinction between I.J. [00:19:42] Speaker 02: has some analysis and says about something [00:19:45] Speaker 02: And then the petitioner doesn't address it, but then the BIA adopts that analysis. [00:19:50] Speaker 02: And then the challenge is to the IJ's analysis saying the IJ, not something that the IJ didn't do, but something the IJ did do. [00:19:59] Speaker 02: So in theory, the board adopted and did the same thing. [00:20:02] Speaker 02: Do you think there's a distinction between that and something like what's happening here where the IJ did some stuff, but the challenge is to supposedly what the IJ did not do, [00:20:14] Speaker 02: Never told anybody that the IJ didn't do this and this was deficient, so the BIA was like, looks good to me, and has a sentence about that. [00:20:22] Speaker 02: And then, is there a distinction between when the IJ didn't do something and that's what's being challenged versus whether challenging what the IJ actually did do? [00:20:31] Speaker 01: It's an interesting question, Judge Van Dyke. [00:20:32] Speaker 01: I'm not sure that there is because in either circumstance, the board would have been able to correct that error. [00:20:37] Speaker 01: So if you start with what the IJA didn't do, and that's the challenge that had been raised to the board. [00:20:41] Speaker 01: So for instance, this elements within the ambit, that first step analysis, the board could have corrected that. [00:20:46] Speaker 01: The board could have said, okay, we're looking at this and saying the elements of this crime bring it within the category. [00:20:51] Speaker 00: And that's why I thought this was exhausted, because remember, we're applying board precedent, you know, frantesque and matter of NAM, which NAM talks about that this is a two-step analysis. [00:21:05] Speaker 00: Step one, the elements analysis is the gatekeeper role, and similar published decisions like Bayer have reflected that as well. [00:21:12] Speaker 00: And so this is the board applying its own precedent to determine whether something is particularly serious crime. [00:21:19] Speaker 00: And if there's a legal error in what the IJ does, the board has an opportunity to correct that. [00:21:26] Speaker 00: But if it adopts it in full, I thought Artsy stood for the proposition that even if something has been [00:21:33] Speaker 00: erroneously done at the IJ level, if the board adopts it, that is sufficient to exhaust for purposes of Ninth Circuit Review. [00:21:42] Speaker 00: Am I misreading that? [00:21:43] Speaker 01: Respectfully, Judge Sanchez, we believe you are. [00:21:45] Speaker 01: We believe RSD stands for the proposition that when the board adopts, but no actual argument or challenge, none at all, just like here, has been presented to the board with respect to the particularly serious crime determination, that the board cannot possibly have been on notice of any arguments, so that even if it [00:22:03] Speaker 01: If its adoption means it's just doing all of the immigration judge's reasoning again, it still didn't have an opportunity to address those arguments. [00:22:09] Speaker 02: So just to make sure I understand, because I think I'm understanding your argument then. [00:22:13] Speaker 02: And that is, it doesn't so much turn on what the IJ did. [00:22:17] Speaker 02: But whatever the IJ did, no challenge at all, if there's no challenge at all to the BIA, and all that the BIA does is summarily adopts or summarily affirms. [00:22:29] Speaker 02: in some fashion, then you would say it's waived, whereas if the IJ said, we agree, but then has its own analysis, then that would invoke the rule that, the other rule we've been discussing that, where the agency addresses it. [00:22:44] Speaker 01: It's not way with the sorry where the board does right now where the board. [00:22:48] Speaker 01: Yes, absolutely. [00:22:49] Speaker 02: That's the distinction. [00:22:51] Speaker 02: That's the on-off switch for purpose. [00:22:54] Speaker 02: Sure. [00:22:55] Speaker 03: I mean, it's an interesting way to look at it, but it seems to me exhaustion should either rise or fall on the arguments that petitioner makes if they are. [00:23:05] Speaker 03: I don't know. [00:23:06] Speaker 01: Your case is... Yes, Your Honor, I believe the Ninth Circuit's case is due... We do distinguish it that way. [00:23:11] Speaker 01: You do distinguish between. [00:23:12] Speaker 01: My understanding is that only a few circuits rely purely solely on what the petitioner has raised before the board. [00:23:19] Speaker 01: I think the Eleventh Circuit is one, maybe the First Circuit is another, where even if the board fully addresses the fact that a petitioner, I guess at that point a respondent, has not raised something before the board, even if the board fully addresses it, that the failure to have brought that up before the board would still mean that the issue is not exhausted. [00:23:34] Speaker 00: But here we have... That's not what the Ninth Circuit has said. [00:23:37] Speaker 00: Right, because the Ninth Circuit has said if you tee up an issue, let's say a CAD claim, even if there are not specific arguments that are being raised to the Ninth Circuit, that's sufficient for exhaustion purposes if the BIA has addressed CAD. [00:23:48] Speaker 01: No question. [00:23:49] Speaker 01: And yes, we're not disagreeing with that. [00:23:51] Speaker 03: We don't have to address exhaustion, right? [00:23:55] Speaker 03: If we agreed with the government on the merits... Yes. [00:23:59] Speaker 03: We could we could avoid exhaustion and just certainly exhaustion is no longer after Santos Zachariah The other way we disagreed with you on the merits that I think we would have to address exhaustion, right? [00:24:11] Speaker 01: I think that's right. [00:24:12] Speaker 01: Your honor. [00:24:12] Speaker 01: Yes. [00:24:13] Speaker 01: Um, I [00:24:14] Speaker 01: Yes, it's no longer jurisdictional, so I think it would certainly be proven. [00:24:18] Speaker 01: But it was still an argument. [00:24:19] Speaker 03: I mean, you've raised it. [00:24:20] Speaker 01: We've raised it, yes. [00:24:21] Speaker 03: You haven't waived the exhaustion argument for us. [00:24:24] Speaker 01: Let me be very clear. [00:24:25] Speaker 01: If you disagree with us on the merits, we would very much like you to look at the exhaustion argument. [00:24:29] Speaker 03: Well, not just very much like. [00:24:30] Speaker 03: I think we would have to. [00:24:31] Speaker 03: You would have to, yes. [00:24:32] Speaker 03: Because you've raised the argument. [00:24:34] Speaker 01: Yes. [00:24:34] Speaker 01: I just mean you wouldn't have to because of jurisdiction after Santos Acura, but absolutely. [00:24:38] Speaker 01: Absolutely. [00:24:39] Speaker 02: Can you mention again? [00:24:41] Speaker 02: I'm not sure I was aware of the case that you mentioned that had a particularly serious crime determination. [00:24:46] Speaker 02: It was not raised to the BIA. [00:24:48] Speaker 02: The BIA had a summary adoption of the IJ's decision, you said. [00:24:52] Speaker 01: Yes. [00:24:52] Speaker 02: And then our court found it. [00:24:55] Speaker 02: Was that a published opinion, or was it? [00:24:56] Speaker 02: It was a published decision named. [00:24:57] Speaker 02: Can you give me the site for it? [00:24:59] Speaker 01: RSD versus Holder, and it's 659, federal third, 925. [00:25:02] Speaker 01: It's a 2011 decision. [00:25:05] Speaker 01: 935? [00:25:05] Speaker 01: 925, sorry. [00:25:09] Speaker 00: So, and what about cases like Kwong and Parada where if an issue has been raised to the BIA and the BIA does address it on the merits, you would say that, does that satisfy exhaustion here? [00:25:23] Speaker 00: So, if, you know, taking my example where it's not just one line, but citations to authority with parentheticals. [00:25:31] Speaker 00: Is that sufficient to have addressed in, you know, this issue of particularly serious crime on the merits to exhaust under Parada, under our other published authority for Parada? [00:25:42] Speaker 00: Yes. [00:25:42] Speaker 01: I mean, I suppose it's still going to depend on exactly what they say in that merits analysis. [00:25:46] Speaker 01: But without question, if the board has addressed even, not necessarily all, but some measure of the arguments a petitioner has made before the board, or I'm sorry, this is in a hypothetical where they haven't raised anything, right? [00:25:57] Speaker 01: So say nothing's raised before the board, the board [00:25:59] Speaker 01: Addresses the analysis performs its own say adopts and affirms But then somehow you know provide some additional reasoning without question once you get to a certain level of separate analysis by the board Oh, you think it has to be separate analysis? [00:26:12] Speaker 00: Because I when I when I read parada it wasn't separate analysis. [00:26:16] Speaker 00: It was just adopting I maybe I don't know many cases, but I [00:26:20] Speaker 01: I'm not pretending that it is that clear of a lie, Your Honor. [00:26:23] Speaker 01: I think RSD is exactly the circumstances we have here. [00:26:26] Speaker 00: You think that's the most helpful kind? [00:26:28] Speaker 01: Yes, because it is adopted and affirmed. [00:26:29] Speaker 01: There's no question, there's no additional analysis here by the board, and the sort of two sites to matter, for Intesca to matter, don't provide any additional analysis. [00:26:37] Speaker 01: We read as sort of a stock site to particularly serious crime analysis. [00:26:40] Speaker 01: All of this said, I'm happy to address any of the merits here. [00:26:45] Speaker 00: Why just to start with the step one element, you know, I think your brief said that the IJ explained the elements and really it seems to me just like a recitation. [00:26:56] Speaker 00: So what you know, I don't see anything. [00:26:59] Speaker 00: The problem that I had with with [00:27:01] Speaker 00: how the IJ approached this is, it's hard for me to define why it's thought that this happened to be a particularly serious crime. [00:27:09] Speaker 00: There's that absence of any discussion of dangerousness that we can get into, of why this person might be a danger to society, and there's an absence of any real discussion about why these elements fit within, bring it within the ambit of why it might be a particularly serious crime. [00:27:27] Speaker 00: rescue the I.J. [00:27:28] Speaker 00: for me, because I'm having a hard time understanding what it did. [00:27:30] Speaker 01: Sure, Judge Santel. [00:27:32] Speaker 01: So there's sort of two separate pieces there, right? [00:27:34] Speaker 01: I'm going to first talk about the first step analysis and the second, the separate dangerousness determination. [00:27:39] Speaker 01: When it comes to that first step, we don't deny that there's a first step of the analysis required, which is whether the elements of a crime bring it within the category of a particular serious crime. [00:27:48] Speaker 01: Now, this court has made very clear and bare that there's a pragmatic approach to that, meaning that this is a gatekeeping function. [00:27:54] Speaker 01: The more serious a crime is, the sort of further down along the spectrum towards a serious crime it is, the sort of less technical you need to be in doing that analysis. [00:28:02] Speaker 01: And so what the court said and bare is, [00:28:04] Speaker 01: Where you have an aggravated felony, as you do here. [00:28:07] Speaker 01: Where you have a crime with straightforward elements, as you do here. [00:28:10] Speaker 01: Possession of a stolen vehicle with knowledge that it's stolen. [00:28:12] Speaker 01: And where you have a crime that's punishable by more than five years. [00:28:15] Speaker 01: Here you have a crime that's punishable by ten years. [00:28:18] Speaker 01: Petitioner himself was almost sentenced to five years. [00:28:20] Speaker 01: He had a 43-month sentence. [00:28:21] Speaker 01: Had it been five years, we would not be having this conversation because it would be a per se particularly serious crime. [00:28:27] Speaker 01: But where you have all three of those things, this court made very clear it will not require an explicit consideration of whether the elements of the crime bring you within the category of particular serious crimes, because it's so obvious that it does. [00:28:39] Speaker 00: Let me ask this. [00:28:40] Speaker 00: Bayer involved a felon in possession of a firearm, which leaps out at me, even apart from the serious incidents that occurred in Bayer, to substantiate that determination. [00:28:53] Speaker 00: Receiving stolen property doesn't leap out to one in the same kind of way. [00:28:58] Speaker 00: Does that factor in to how we should consider this? [00:29:04] Speaker 01: It doesn't for the first step, and frankly, Your Honors, even in the circumstances and factors analysis, it doesn't in the sense that there are aggravated felony grounds like obstruction of justice and fraud that don't necessarily require any sort of physical danger. [00:29:17] Speaker 01: And Congress has obviously made clear that for those crimes, which are aggravated felonies and where you have a sentence of five years, we don't even look at anything else. [00:29:25] Speaker 01: You don't do any dangerous analysis because it is automatically a particularly serious crime. [00:29:29] Speaker 01: Now, having said that, we recognize that, of course, and the board and this court and several courts have said, [00:29:33] Speaker 01: crimes against people crimes against crimes involve sort of physical danger violence, those are going to be more likely to be particularly serious. [00:29:40] Speaker 00: Sure. [00:29:41] Speaker 01: But it is a big difference that or rather it's important to understand that other crimes that don't involve that physical harm can certainly be in this court is recognize that and bear it sort of summarizes some of this courts. [00:29:51] Speaker 01: particularly serious crime jurisprudence, including non-physical crimes. [00:29:54] Speaker 01: Like in Arbead, it was, I believe, I think it was male fraud. [00:29:58] Speaker 01: And it's recited other courts, evidence tampering, or sorry, witness tampering, identity theft, securities fraud. [00:30:05] Speaker 01: These are all cases where other courts have said they're particularly serious crimes. [00:30:08] Speaker 01: It might present less serious cases than the more physical violent dangerous crimes, but they certainly can be particularly serious crimes. [00:30:14] Speaker 00: So in your view, now do you think BEHR is a controlling decision or just persuasive authority for us? [00:30:21] Speaker 01: I think it's persuasive, Your Honor. [00:30:22] Speaker 01: I don't know. [00:30:22] Speaker 01: Even the way that we read there, it's not clear that there's any sort of test. [00:30:26] Speaker 01: You know, I mentioned three factors just now, and that's just sort of analogizing this case too, Bear. [00:30:30] Speaker 01: I don't read those as sort of three factor tests for when you don't do the analysis. [00:30:34] Speaker 01: But we believe it's persuasive, and we believe at a minimum it directs this court towards a more pragmatic approach to the question of whether a crime is particularly serious, and specifically when you're looking at that first step of the analysis. [00:30:45] Speaker 01: I see that my time is up. [00:30:46] Speaker 01: I want to finish the second part of the question, which is the separate dangerousness. [00:30:49] Speaker 01: If that's OK, Judge Nelson. [00:30:50] Speaker 01: This court's made very clear in Gomez-Sanchez that there's no separate dangerousness analysis. [00:30:55] Speaker 01: Now, I obviously gave you several reasons why both Congress and the board in addressing particularly serious crimes can still consider a crime particularly serious even without any particular physical amount of danger. [00:31:05] Speaker 00: Well, no separate dangerousness analysis once there's been a finding of particularly serious determination, right? [00:31:11] Speaker 00: Correct. [00:31:11] Speaker 00: I think we all understand that. [00:31:14] Speaker 00: The case also said that dangerousness is the key component to analyzing this sort of thing, and that even comes from Frantescu itself. [00:31:24] Speaker 00: But there didn't seem to me anything here. [00:31:26] Speaker 00: It seemed as if the IJ was kind of reciting what happened again, stealing the Jeep, using it to steal packages from people's homes, but there was nothing guiding, to me at least, that guided a sense of why the IJ thought or why the agency thought this [00:31:43] Speaker 00: amounted to something that was particularly serious. [00:31:47] Speaker 01: Well, I guess the answer to that turns on what you think that why would be. [00:31:51] Speaker 01: What would you be looking for in that analysis? [00:31:53] Speaker 01: So we recognize that you're saying, even just looking at the crime itself, do you look at danger in that analysis, right? [00:31:57] Speaker 01: Forget the future danger or the person, whether they present a threat. [00:32:01] Speaker 01: Even in looking at the crime itself and what is it that makes it particularly serious, I think is what you're getting at. [00:32:05] Speaker 01: And this court has never required that that analysis explicitly talk about danger. [00:32:10] Speaker 01: I think it is inherent in what this court says, and in Behr it's more obvious we're talking about a felon in possession and something where there's a more obvious physical threat. [00:32:17] Speaker 01: But again, this court has never required that, and there are other types of crimes that do not involve any type of physical danger. [00:32:23] Speaker 01: like the decisions they describe and bear, like this court's decision in RB. [00:32:27] Speaker 00: You don't think there are cases that say that dangerousness remains the essential key to determining whether the individual's conviction was for a particularly serious crime in the first instance? [00:32:36] Speaker 00: Gomez, Sanchez, Delgado, Konu, you know, we were cited several times. [00:32:41] Speaker 00: You don't think dangerousness has to go into [00:32:45] Speaker 01: Figure into that analysis in some kind of way sure it goes I'm not saying that we have to have the word dangerousness but something that just gives a Review in court some indication as to where the IJ was coming from without question judge Sanchez I guess what we're saying is that Dangerousness doesn't need to be physical violent danger and that's what we talk about money long It's think of danger as a risk to society and that's why I brought up multiple other cases both from this court and others that involve things like [00:33:11] Speaker 01: money laundering, witness tampering, securities fraud, things like that. [00:33:15] Speaker 01: And I'll also mention that this is a receipt of stolen property crime. [00:33:18] Speaker 01: So again, it sounds like you're suggesting maybe it's not quite as obvious. [00:33:22] Speaker 01: Receipt of stolen property is sort of a [00:33:24] Speaker 01: not commonly litigated crime but it's a species of theft. [00:33:27] Speaker 01: That is commonly considered by this court and others to be a particularly serious crime. [00:33:31] Speaker 01: There's two unpublished decisions just in the last couple months. [00:33:34] Speaker 01: That's not uncommon at all and again that's because we're not relying solely on physical violent danger in both Congress and the board has made that clear. [00:33:43] Speaker 03: Okay. [00:33:43] Speaker 03: Thank you. [00:33:44] Speaker 03: We'll give you two minutes for rebuttal. [00:33:50] Speaker 04: Thanks Judge. [00:33:51] Speaker 04: Just quickly on exhaustion. [00:33:54] Speaker 04: want to emphasize that under Parata, again, the issue with exhaustion is just making sure that the board is on notice of the broad issue. [00:34:03] Speaker 04: Parata doesn't require that the board be on notice of every potential argument that could have been brought to challenge the decision, especially here where the board [00:34:13] Speaker 04: affirmed the IJ's decision of the PSC analysis, the assumption is that at minimum it looked at the IJ's analysis and said the legal standard was applied correctly. [00:34:23] Speaker 03: What about the RSD case? [00:34:24] Speaker 03: I hadn't looked at that either. [00:34:26] Speaker 03: Can you respond to that? [00:34:27] Speaker 03: Are you familiar with that case that the government cited? [00:34:30] Speaker 04: I don't recall that off the top of my head, Judge Nelson. [00:34:34] Speaker 04: If you want to [00:34:48] Speaker 04: The exhaustion doctrine isn't applied in a formalistic manner. [00:34:52] Speaker 04: On Bayer versus Barr, I mean, Bayer is different for a number of reasons. [00:34:57] Speaker 04: But one is that, as this court noted in Bayer, the IJ in that case had discussed the correct legal standard. [00:35:04] Speaker 04: It discussed that there was a two-step analysis, that the first step was a gatekeeping function or served as a gatekeeping function, and that it couldn't move on until it satisfied step one and then went to step two. [00:35:18] Speaker 04: And then finally, on the step two analysis, again, even if you were to excuse the step one deficiency, step two was wrong because the agency [00:35:29] Speaker 04: never mentioned dangerousness. [00:35:30] Speaker 04: It never connected, as my colleague said, never connected the circumstances of the offense to Mr. Chmooke being a risk to society. [00:35:39] Speaker 03: I mean, I would agree that you- Can you address briefly the Kano versus Holder case from 2014 where we said by citing the nature of the conviction, the circumstances and underlying facts of the conviction and the nature of the sentence imposed, that was enough? [00:35:54] Speaker 03: Why do why you seem to be asking for a higher standard? [00:36:00] Speaker 04: Oh, no, no, not at all, Your Honor. [00:36:03] Speaker 04: I mean, there again, though, even at least making sure you discuss the correct legal standard. [00:36:08] Speaker 04: There wasn't an issue about including danger as the essential key in that case. [00:36:14] Speaker 04: So, yes, as long as you analyze all the step two factors and make a reasoned connection to the noncitizen [00:36:21] Speaker 04: being a danger to the community, that definitely suffices. [00:36:26] Speaker 04: So I'm not suggesting that the IJ needed to provide an additional paragraph or any specific measure of substance beyond making and drawing a connection between the circumstances of the offense and the presumption that he would be a danger to the community. [00:36:45] Speaker 02: So don't we have cases that say that [00:36:50] Speaker 02: that there is a presumption that they'll be dangerous if it's a particularly serious crime. [00:36:55] Speaker 02: Right? [00:36:55] Speaker 02: Right. [00:36:56] Speaker 02: And so it seems to me that the way a presumption typically works is, you know, it's not a categorical presumption. [00:37:04] Speaker 02: You can rebut the presumption. [00:37:05] Speaker 02: Somebody could be particularly serious crime, but they not be dangerous. [00:37:08] Speaker 02: But if it's a presumption, then why isn't it actually presumed in that? [00:37:11] Speaker 02: Why do we need to have an explicit discussion of dangerousness? [00:37:15] Speaker 02: You'd think if it's a presumption, you'd only have to have an explicit discussion if it went the other way. [00:37:20] Speaker 04: Right. [00:37:20] Speaker 04: I mean, there does it's on its face. [00:37:22] Speaker 04: It sounds like there's a little bit of circularity there, Judge, but but the cases are clear that you have to mention. [00:37:30] Speaker 04: Well, one, you have to mention dangerousness in in making and discussing the legal standard. [00:37:33] Speaker 04: You have to identify the correct legal standard. [00:37:35] Speaker 04: But two, to provide a reasoned explanation, as the agency is obligated to do, you have to connect the circumstances of the offense to justify the presumption that the non-citizen is dangerous. [00:37:47] Speaker 03: So you don't get the presumption unless it's... Sorry, I don't mean to belabor you, but we're going to do it anyway. [00:37:54] Speaker 03: What if the BIA said he was convicted of murder? [00:37:57] Speaker 03: That's the end of the story. [00:37:59] Speaker 03: Would you be... Well, you didn't say murder was dangerous. [00:38:02] Speaker 03: So I mean, I guess that's what I'm struggling with is there's got to be some implicit understanding. [00:38:09] Speaker 03: And at some point, you seem to be arguing, well, it's not intuitive that stealing property or having possession of stolen property or disposing of it if you never had possession of it in the first place is dangerous in and of itself. [00:38:24] Speaker 03: And I don't know where that line is drawing. [00:38:29] Speaker 04: Right, no, it can be a difficult line drawing exercise, Judge Nelson, and I agree in that case. [00:38:35] Speaker 03: If you said, well, he was jaywalking. [00:38:37] Speaker 03: Right. [00:38:38] Speaker 03: therefore we're done, then maybe I guess you'd have more of an argument here. [00:38:44] Speaker 03: And so I'm just trying to figure out where our role is. [00:38:50] Speaker 02: It seems to me that jaywalking would be very difficult to find those particularly serious crime because those kind of crimes aren't typically serious. [00:38:57] Speaker 02: The ones that typically are particularly serious are ones that have, that would [00:39:02] Speaker 02: presumably, say, would normally be a dangerous crime. [00:39:06] Speaker 02: So I understand that a particularly serious crime is presumed to be dangerous, but doesn't that mean that it normally would be dangerous and you only need to sort of independently address the dangerousness if it goes the other way? [00:39:22] Speaker 02: It's built into the particularly serious fine. [00:39:25] Speaker 02: It's rough. [00:39:26] Speaker 02: It's rough. [00:39:27] Speaker 02: That's why it's presumption. [00:39:28] Speaker 02: That's why it's not an absolute given. [00:39:31] Speaker 02: But it is the presumption that they'd be dangerous. [00:39:35] Speaker 04: But I think the reason the test is framed the way it's framed is to make clear that you don't have to do a standalone analysis into the personal characteristics of the individual, but you still have to connect the circumstances of the offense in a way that shows the agency is saying that those things justify the position of the danger. [00:39:55] Speaker 00: Can I clarify? [00:39:56] Speaker 00: There's not a presumption. [00:39:58] Speaker 00: If something is coming before the board as to whether a state conviction is a particularly serious crime, you don't start from a presumption that it is particularly serious unless it's disproven. [00:40:12] Speaker 00: I thought step one, do the elements of that state crime of conviction bring it within the ambit of what might be a particularly serious crime? [00:40:20] Speaker 00: And then step two, you get into the nature of the circumstances, the crime, and all of that. [00:40:26] Speaker 00: And then if there's a determination found for particularly serious crime, then there's no presumption. [00:40:32] Speaker 00: That's the end of the story. [00:40:33] Speaker 00: Someone's considered dangerous. [00:40:35] Speaker 00: You don't have to do a separate dangerousness analysis. [00:40:39] Speaker 00: Where is there a presumption? [00:40:41] Speaker 00: Where does a presumption operate in any of that analysis? [00:40:46] Speaker 04: No, that's exactly right, Judge Sanchez. [00:40:47] Speaker 04: It operates after you do the analysis at step two. [00:40:50] Speaker 04: What I was trying to verify is that... But then it's not a presumption. [00:40:52] Speaker 00: It's automatic. [00:40:54] Speaker 00: If the agency has decided it's particularly serious, there's not a presumption of dangerousness because there's nothing rebuttable about it. [00:41:03] Speaker 00: That's the determination itself. [00:41:05] Speaker 04: No, no, that's exactly right. [00:41:07] Speaker 04: I guess the way that presumption is defined in this context is to say you don't have to continue on after you've done the analysis that connects the circumstances of the offense to dangerousness. [00:41:22] Speaker 04: After that happens, the non-citizen is presumed to be a danger to the community, and you don't have to go beyond that. [00:41:27] Speaker 04: So yes, it is. [00:41:28] Speaker 04: It is the end of the analysis in the sense that you don't have to then do a standalone inquiry. [00:41:35] Speaker 04: That's where the presumption comes in. [00:41:36] Speaker 04: You don't get it before. [00:41:39] Speaker 04: There's no presumption before the actual analysis. [00:41:42] Speaker 04: The analysis gets you the presumption, and then the agency does not have to go beyond that to do the standalone inquiry. [00:41:49] Speaker 02: So your view is, there's no, you would agree that there is, once it's particularly serious, once you found something's a particularly serious crime, now there's a presumption of dangerousness. [00:41:58] Speaker 02: I think you would agree to that. [00:42:00] Speaker 02: Once once you've actually completed the analysis, right? [00:42:04] Speaker 02: So long as the analysis includes the essential argument is that you have to do a dangerousness and independent dangerous analysis, dangerousness analysis to come to the particular serious crime. [00:42:16] Speaker 04: No, not an independent analysis. [00:42:17] Speaker 04: Judge Van Dyke analysis. [00:42:19] Speaker 04: The dangerousness has to be part of that step to [00:42:25] Speaker 02: that step to evaluation it's not standalone it's it's it's it's it's within the analysis itself but it can't be that it can't be built into the other things that you're considering under your i mean you're saying what i mean by dependent is you have to take dangerousness into account in a separate that's your whole argument isn't that you have to take dangerousness [00:42:42] Speaker 02: You have to discuss something about danger. [00:42:44] Speaker 02: Right. [00:42:45] Speaker 04: But again, not independently, not as a standalone inquiry. [00:42:48] Speaker 04: What I'm saying is that dangerousness is the essential key to a PSC determination. [00:42:53] Speaker 04: So at step two, when the agency is analyzing, is making that step two determination, dangerousness has to be an integral part of that analysis. [00:43:03] Speaker 04: And once you do that, there's no obligation to do an additional standalone independent inquiry. [00:43:10] Speaker 03: Okay, counsel, thank you. [00:43:11] Speaker 03: Thanks for your time. [00:43:12] Speaker 03: It's actually been very helpful. [00:43:13] Speaker 03: The argument today is very helpful. [00:43:15] Speaker 03: We appreciate both counsel's preparation and presentation. [00:43:19] Speaker 03: The case is now submitted.