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Well, good morning.

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Judge Fletcher and Judge Berzon and I would like to welcome you to the Ninth Circuit.

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We have four arguments set for today, but we wanted to take a moment to just celebrate a very important day.

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Our courtroom deputy, Stacey, has been with the court system for 30 years, 20 plus years with our court, and this is her last day of argument.

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She will gavel at the end of today for her last time as a court employee.

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I'm sure you will gavel at home many times, just as reminiscence of your time here.

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But we wanted to just stand and give her a round of applause for all her hard work.

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So Stacey is emblematic of the great court employees that we have that help us do our work.

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The Ninth Circuit could not function.

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We were the most effective functioning court during COVID.

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Other courts came to us and we said, well, we can't tell you everything because the true answer is your staff and nobody else has staff like us.

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And so we appreciate what you've done.

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Thank you for indulging us.

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And with that, we will turn to the argument set for today.

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And the first argument is Touré versus Garland, case numbers 18-70014 and 1970050.

[00:01:42] Speaker 04:
Good morning, Your Honors.

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This is Octavian Jumanca on behalf of the petitioner, Papa Torre.

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May it please the court, I'd like to reserve four minutes of rebuttal if possible.

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This case arises from the board's abuse of discretion and legal errors regarding the petitioner's motion to reopen based on ineffective assistance of counsel and its errors of law in denying the subsequent motion to reconsider and terminate proceedings due to jurisdictional and claims processing violations.

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Um, the record clearly establishes an attorney client relationships in this case between Bakari Conte and, uh, the petitioner.

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So counsel, I, I, I agree with all that.

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Let me ask you this.

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Did your client receive a notice to appear and it had the proper date and location on it?

[00:02:33] Speaker 04:
My client received a notice to appear, but the... Was it correct?

[00:02:39] Speaker 04:
It was lacking the time and date of the... Well, that was originally... Wait, which one are you talking about?

[00:02:46] Speaker 01:
The notice of hearing.

[00:02:49] Speaker 04:
Sorry, the notice to appear.

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There was a notice to appear and then there was a subsequent notice of hearing.

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Right, the notice of hearing was... Yeah, you're right.

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But the notice of hearing was correct, correct.

[00:02:59] Speaker 04:
There was, yeah, their notice of hearing was correct, yes, your honor.

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And that's what your claim is based on, that he didn't appear for that hearing?

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Correct.

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Okay.

[00:03:06] Speaker 03:
But you've also got a motion to reopen.

[00:03:09] Speaker 04:
A motion to reopen and a motion to reconsider.

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Yeah, yeah, it's the motion to reopen that I'm more interested in.

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Could you respond to the issue of Maduro-Luzada?

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BIA says you didn't comply with Maduro-Luzada.

[00:03:22] Speaker 04:
Yes, Your Honor.

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To that, we've pointed to Lowy Ashcroft, which is a case that has very similar circumstances that we find here.

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And this court has not always

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said that strict compliance with Lazada is necessary.

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And really the onus is on whether or not there's some sort of indicia of dilatory tactics or delaying tactics on behalf of the petitioner.

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That was what this court assumed that Lazada was there for, to curtail that.

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And what they looked at in order to determine that was whether the record contains indication that the petitioner has done

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everything that they could do to attend their hearings and that there was a prior history of attending hearings.

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And if the court is satisfied that the petitioner didn't have an intention to miss his hearing purely for delaying this, they didn't really say that strict compliance was required.

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the court had even worse facts than they do here.

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The BIA says Maduro Lozada is not complied with because Mr. Toure has not shown that Mr. Conte agreed to represent him in the immigration hearing.

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What's your response to that?

[00:04:40] Speaker 04:
The response to that is that the record does show that there was an agreement for services.

[00:04:44] Speaker 04:
First of all, the text messages found within the record has Mr. Conte saying, hey, please deposit $500 to begin the services, to which Mr. Torre says yes.

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And then the conversations keep going.

[00:04:57] Speaker 01:
I thought the question was whether he was a change for this purpose or for purpose of getting a visa.

[00:05:05] Speaker 04:
Right, and to that I would point to the declaration submitted by the petitioner in which he says that Mr. Baccari Conte told him that he was going to file an I-130 petition and then go before the court to adjusted status.

[00:05:19] Speaker 03:
Right, so we've got a court date he talks about and then after the court date is missed he talks about here's what you can do to fix it.

[00:05:27] Speaker 03:
That sounds to me as though there's an agreement to represent him in the hearing.

[00:05:32] Speaker 04:
Precisely, Your Honor.

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At no point during those text messages does Mr. Conte ever say, hey, hold on.

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You've only hired me for the I-130.

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You take care of your own proceedings or anything like that.

[00:05:43] Speaker 01:
And I think this is what Judge Nelson began asking.

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Your client, Mr. Tory, did get a notice of hearing with the right date.

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And he gave it to Mr. Conte because he gave him everything.

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So to me, the problem with this case is that most people, before they gave away a notice that told them when their date of hearing was, would at least write down what the date of hearing was.

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So he had every reason to know what the date of hearing was.

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And if Mr. Conte wasn't answering him, that might be a problem with regard to a lot of other things.

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But I don't know why it's a problem with regard to when the hearing was, when he was

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told and had a notice of when the hearing was.

[00:06:33] Speaker 04:
I understand your point, Your Honor.

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To that, I would say that this Court has always recognized that there's an enormous amount of reliance a client places on their attorney when they hire them for a specific case.

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That was recently recognized when this Court issued their decision on the remand from the Supreme Court in Singh v. Garland.

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where they said specifically that, and they quoted Manjara's v. Munoz, we've recognized that a petitioner facing deportation uniquely relies on an attorney who guides them through a complex and completely foreign process.

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I don't disagree with that principle on its face.

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And we have the Lowe decision, which you referenced.

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But Lowe is different, because Lowe, the attorney, affirmatively told the client the wrong date.

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that you agreed that didn't happen here right that the the claim here is he just didn't get told the date by his attorney correct your honor he this is different in that circumstance but what's not why isn't that why isn't that just positive in a way because here's the problem i mean if if we go your way we are just opening up a huge can of worms here i mean it would open up a whole avenue for

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attorneys just to never remind their client, and then you'd say, well, it was my attorney's fault, and we'd have motions to reopen.

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We're already flooded with immigration cases.

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We'd tenfold increase the number of cases we're dealing with.

[00:08:00] Speaker 04:
I understand, Your Honor, but I would say that on the contrary, if we deemed this conduct not to be exceptional but ordinary, I think that this conduct would be perpetuated by all sorts of immigration attorneys.

[00:08:12] Speaker 01:
But that assumes that people are giving their notices to their client, to their lawyer, and not themselves.

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noting when the hearing date is.

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Is there any other case like that, where the person had the hearing date and gave it to his lawyer, and the problem was that the lawyer didn't remind him of something he should have already known anyway, or did know?

[00:08:35] Speaker 04:
Not to my knowledge.

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Most cases are about a lawyer providing the incorrect hearing date.

[00:08:41] Speaker 01:
But I would say that- For example, in Lowe, do we have any idea whether Mr. Lowe had the

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the notice of hearing.

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And the problem was that he was told the wrong one, even though he already had the right one?

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Is that what happened in Lowe?

[00:08:58] Speaker 04:
In Lowe, what happened was that the petitioner knew when the hearing was.

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He called the office.

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And the secretary at the office told him a different date than what was on the hearing notice.

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And Lowe believed the secretary.

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Lowe actually was being proactive, because he knew the date and was calling to confirm it.

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If I remember right, he knew it was going to be on a Monday.

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And the secretary said, no, it's actually on Friday.

[00:09:21] Speaker 04:
Correct, yes.

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But, you know, according to the rationale that the department would want us to go forward on here, I mean, this court should say that Mr. Lowe, after being told the incorrect date, should have called the immigration court to double-check his attorney, to make sure that their attorney wasn't right.

[00:09:37] Speaker 00:
But not to double-check his attorney.

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He just didn't, he had the notice, gave the notice to the attorney, and he didn't keep a copy of it.

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And I mean, when you read the statute, it's not like we're just making this up.

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I mean, we have statute from Congress.

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And I know this court has not stuck precisely to these, but you're talking about exceptional circumstances or death of a family member.

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I mean, these are, and nothing less than that.

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I mean, the language says that.

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So at a minimum, it seems like we cannot be

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At least it's not an abuse of discretion to interpret exceptional circumstances, not to include things that are within the petitioner's control.

[00:10:25] Speaker 04:
I would argue is that if the court finds that what Mr. Conta did here was ineffective, then they need to find that there was- Well, but that's sort of a question.

[00:10:34] Speaker 00:
Why was it ineffective?

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Because your claim, I mean, these seem tied in together because your claim is when he called Mr. Conta, Mr. Conta said, ooh, you missed the hearing.

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And he said, well, I'll just tell him,

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I'll just tell him that you didn't tell me.

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And Mr. Conta actually, in my opinion, gave him the correct advice is don't do that.

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You'll lose.

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And tried to come up with another theory, which was, oh, maybe maybe we can say you couldn't get here by driving.

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Query whether that was enough.

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But at least Conta was I thought gave him the right advice.

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So it's not entirely clear to me why that's ineffective.

[00:11:14] Speaker 04:
Well, I would say that that advice was, in many ways, Mr. Quinte trying to save himself from any potential liability.

[00:11:22] Speaker 03:
There are two different claims you've got.

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One is he should be excused because somehow he didn't know, didn't get the notice.

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The other one is motion to reopen.

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It strikes me that motion to reopen is your only real chance here.

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BIA turns down Motion to Reopen, number one matter of Losada they say has not been complied with.

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I'm quite skeptical of the BIA on that point.

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But the BIA also says, well wait a minute, it's untimely and you need some sort of reason why the untimeliness should be excused.

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And help me understand why the untimeliness for filing the motion to reopen should be excused, because he's got 180 days.

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He misses the 180 days.

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Help me understand why there are some circumstances, or I think the word is extraordinary circumstances, that will allow him to be excused for missing the 180 days for the motion to reopen.

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And Your Honor, the main issue here is that Mr. Conte didn't just stay silent on this matter.

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Mr. Tory, the petitioner, asked him for advice.

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What should I do?

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You know, I asked you for the court date.

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You didn't give it to me.

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Mr. Conte told him, well, you need to reopen, but you can't do it on this reason.

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He dissuaded the client.

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He dissuaded the client from pursuing this avenue, and that's what led him to filing late.

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And that should be told.

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And further,

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according to the affidavit filed by your client, he asked Conte to get his file.

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Conte refuses to give it to him, and he doesn't get his file until after he hires Brown.

[00:13:01] Speaker 03:
Brown finally prevails on him, gets his file, and then Brown, quite promptly thereafter, files the motion to reopen, whereby then, well outside the 180 days,

[00:13:11] Speaker 03:
But what leads up to it is that Konte refuses to give him his file.

[00:13:17] Speaker 03:
Yes, sir.

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And without his file, he's kind of stymied.

[00:13:20] Speaker 04:
Which also contained his alien number, which was also critical in him finding any information from the court or from the automated phone system about his next hearing.

[00:13:27] Speaker 03:
So the question is, does that constitute exceptional circumstances?

[00:13:31] Speaker 04:
I believe it does.

[00:13:33] Speaker 04:
Thank you, Your Honor.

[00:13:34] Speaker 04:
Okay, we'll give you some time for rebuttal.

[00:13:35] Speaker 04:
Thank you.

[00:13:51] Speaker 02:
Good morning, Your Honors.

[00:13:52] Speaker 02:
My name is Michelle Sarko.

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I'm here representing the Attorney General in this matter.

[00:13:57] Speaker 02:
First, I would like to just briefly go through the

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the relevant facts in the case.

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Petitioner was admitted to the US in May 9th of 2013 on a non-immigrant visitor visa.

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He was arrested in April 27th of 2014 by CBP and was issued the notice to appear.

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and given a list of free legal services.

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Then subsequently, DHS filed the NTA with the immigration court in November of 2014.

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Petitioner did not file an asylum application within one year of his arrival, if he was going to claim that that's the relief that he would want.

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So he's not eligible for that.

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And on January 30, 2015, the Immigration Court mailed the hearing notes to Petitioner for his February 9, 2016 hearing.

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Now, Petitioner and his wife got married in June of 2015.

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The marriage was after he was already placed in removal proceedings.

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Petitioner claimed that soon after he and his wife got married, they consulted with the first immigration attorney.

[00:15:19] Speaker 00:
Uh, the background's helpful, but can we focus on the issues that are before us, which is really whether the, um, uh, whether the 2018 motion to rescind the absentia room, you know, removal order, whether that was proper.

[00:15:37] Speaker 00:
I mean, and, and then we've got the motion to reopen.

[00:15:40] Speaker 00:
To me, they seem linked because if the 2019 motion to reopen is basically based on

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ineffective assistance of counsel, but it's not clear that there was ineffective assistance of counsel.

[00:15:55] Speaker 02:
Right.

[00:15:55] Speaker 02:
We would argue that it is not clear from this record, not even from the affidavit that the petitioner put in, that there was ineffective assistance of counsel.

[00:16:05] Speaker 03:
Firstly, there was ineffective assistance, but you're arguing that maybe he wasn't representing him for this purpose?

[00:16:10] Speaker 03:
Is that the argument?

[00:16:11] Speaker 02:
Well, yes.

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That's the whole thing.

[00:16:12] Speaker 03:
There's no possibility that Conte was providing effective assistance.

[00:16:16] Speaker 03:
I'm sorry, what's the last part?

[00:16:17] Speaker 03:
The possibility that Conte was providing effective assistance.

[00:16:21] Speaker 03:
The only question you're raising is whether he was representing him with respect to the hearing.

[00:16:25] Speaker 02:
Right, right.

[00:16:27] Speaker 02:
Because from