[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:05] Speaker 00:
Rebecca Poffeck for petitioner in this matter.

[00:00:07] Speaker 00:
I'll try to reserve two minutes of my time for rebuttal, and I will watch my clock.

[00:00:13] Speaker 00:
All right.

[00:00:14] Speaker 00:
The issue presented to this Court here today is whether the application of withholding only proceedings to the petitioner resulted in a violation of his right to a fair proceeding and his statutory right to seek asylum as a refugee in the United States.

[00:00:30] Speaker 00:
Respondents only include a cursory rebuttal to the first issue presented by petitioner in footnote 5 on page 49 of their brief.

[00:00:40] Speaker 00:
Instead, respondents brief focuses exclusively upon whether substantial evidence supports the underlying court's conclusions that petitioner did not sustain his burden of proof for withholding of removal and or cap protection, while overlooking the critical and probative indication of inequity here.

[00:01:00] Speaker 00:
The threshold determination that petitioners' right to a fair proceeding and statutory right to seek asylum were violated through the imposition of withholding only proceedings.

[00:01:12] Speaker 00:
Furthermore, respondents brief misdates the facts.

[00:01:15] Speaker 00:
Page four incorrectly states, quote, after expressing no fear of returning to El Salvador, he was ordered removed on November 11, 2009.

[00:01:25] Speaker 00:
On the contrary, the declaration of Julio Benjamin Gonzalez-Pena, dated April 11, 2019, and contained in the record, elucidates the circumstances underlying petitioners 2009 encounter with US officials.

[00:01:40] Speaker 00:
Quote, I signed a document under duress after traveling thousands of miles and being physically and mentally broken.

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I was never given a chance to speak about my fears of returning to El Salvador.

[00:01:53] Speaker 00:
Page two, paragraph eight.

[00:01:58] Speaker 00:
As respondents concede in supplemental 28J filings, the September 8th, 2023 Ninth Circuit decision, Alonso Juarez versus Garland,

[00:02:08] Speaker 00:
confirms that petitions for review are timely filed within 30 days of the conclusion of a reasonable fear proceeding, and 8 USC 1252 B1 is a mandatory non-jurisdictional rule.

[00:02:21] Speaker 00:
Therefore, it is undisputed that jurisdiction rests squarely with the Ninth Circuit to render a decision in this case.

[00:02:29] Speaker 01:
This was an expedited underlying removal order, expedited reinstatement?

[00:02:37] Speaker 00:
Reinstatement and removal, correct, Your Honor.

[00:02:41] Speaker 00:
And so it was non-asylum.

[00:02:44] Speaker 00:
The only proceedings were for Kat and for withholding.

[00:02:50] Speaker 05:
So how do we, with the case in its current posture, get back to what might have been a mistake at the first time around?

[00:02:58] Speaker 05:
When he, as he says, incorrectly, because he was pressured, signed something.

[00:03:08] Speaker 05:
How do we get back to that from here?

[00:03:11] Speaker 00:
Yes, and Your Honor, my argument here today is that those were defective.

[00:03:19] Speaker 00:
Those removal orders, expedited removal order at that time, are defective.

[00:03:24] Speaker 00:
Duress is an absolute defense to many contract formation, criminal defense, et cetera.

[00:03:32] Speaker 05:
And do we have the authority to collaterally attack those earlier orders?

[00:03:38] Speaker 00:
on the first entry.

[00:03:39] Speaker 00:
So if the first two are under duress, then he needs to, yes, you're saying does this court have jurisdiction under the US Constitution?

[00:03:49] Speaker 00:
Yes.

[00:03:51] Speaker 00:
Let's see.

[00:03:54] Speaker 05:
Well, lots of bad things happen, and you can't always address them in collateral proceedings.

[00:04:00] Speaker 05:
What gives us the authority to go back now in this proceeding?

[00:04:05] Speaker 05:
So, assuming for a moment that it was a violation of the constitutional process the first time around.

[00:04:24] Speaker 00:
What gives you jurisdiction at this time to go back?

[00:04:27] Speaker 05:
I mean, that's the question, yes.

[00:04:29] Speaker 00:
Well, I would argue that we need to analyze the interplay of 8 USC 1158 and 8 USC 1231A5.

[00:04:37] Speaker 00:
And the argument of duress would give us the ability to go back and to analyze that interplay.

[00:04:45] Speaker 00:
In Perez Guzman v. Lynch, the case respondent cites to support the rejection of petitioner's claim he's statutorily eligible for asylum since the underlying expedited order of removal in this case was defective.

[00:04:58] Speaker 00:
So this is an opportunity to analyze that interplay and take it one step further for this court.

[00:05:04] Speaker 05:
And had he been able to apply for asylum the first time around, would he have presented any different facts than he presents now in connection with the withholding?

[00:05:16] Speaker 00:
I think it would have been the same set of facts if he was given an opportunity.

[00:05:19] Speaker 00:
And if I may, Your Honor, he was found credible when he was given an opportunity to state his claim for asylum.

[00:05:28] Speaker 00:
There was a credible fear finding and he was deemed credible.

[00:05:32] Speaker 00:
So I would argue that at the beginning, if he was given that opportunity to voice his fear, he would have been deemed credible at that time.

[00:05:39] Speaker 05:
So if I'm trying to figure out what the actual consequence was of the due process violation the first time around, I look at the facts that are now before us to determine what the outcome of that earlier proceeding would have been had it taken place.

[00:05:55] Speaker 05:
yes and and because exactly because that that that gets us pretty close to the merits of the what we have here in front of us I understand that asylums off the table but withholding is on the table and the standards for asylum and withholding are somewhat different but they overlap to a considerable degree well I I would ask the court to remand for asylum hearing not for withholding an only cat hearing yeah

[00:06:24] Speaker 01:
Would you like to save the remainder of your time for rebuttal?

[00:06:27] Speaker 01:
Yes, yes, your honor.

[00:06:28] Speaker 01:
Thank you.

[00:06:54] Speaker 02:
Good morning, Your Honors.

[00:06:55] Speaker 02:
You know, I'll use it for the Attorney General.

[00:06:57] Speaker 02:
The Court should deny the petition for review.

[00:06:59] Speaker 02:
The sole issue before this Court is the petitioner's claim for withholding of removal and cap protection after he was placed into withholding only proceedings after his prior expedited order of removal was reinstated.

[00:07:12] Speaker 02:
The petitioner's claim in that regard is essentially a claim that amounts to a fear of generalized violence and crime in El Salvador.

[00:07:18] Speaker 02:
He was the unfortunate victim of extortion efforts by gangs

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However, did not experience harm rising the level of persecution and also failed to demonstrate the nexus to a protected ground.

[00:07:29] Speaker 02:
The record simply here is similar to that in the cat context in which he experienced harm relating to criminality in gang violence in El Salvador.

[00:07:41] Speaker 02:
However, that also is not a sufficient basis for cat protection.

[00:07:44] Speaker 05:
How do you respond to the argument that we just heard that we actually should go back and because of the problems with the first proceeding, treat this as asylum?

[00:07:57] Speaker 02:
Well, Your Honor, there's three parts to that.

[00:08:00] Speaker 02:
Firstly, it's an expedited removal order under 235B.

[00:08:04] Speaker 02:
So the court wouldn't have had jurisdiction back in 2009 or currently have jurisdiction for an expedited removal order under the Supreme Court's analysis in Thuris, Sigeum, and the subsequent case law presented by this court, held by this court in Guerriere and Mendoza, Linares that preceded that, making it quite clear that this court's jurisdiction over those expedited removal orders

[00:08:27] Speaker 02:
very limited.

[00:08:28] Speaker 02:
And the proper avenue for review of those is actually in district court under habeas proceedings.

[00:08:33] Speaker 02:
And there are no such proceedings, no such proceedings occurred.

[00:08:37] Speaker 02:
And, um, and that's why there's no jurisdiction over the expedited removal order.

[00:08:41] Speaker 02:
And it, sorry, I feel like you want to get in.

[00:08:44] Speaker 05:
I don't know how I get that.

[00:08:46] Speaker 05:
So, um, how, how did this person come to the attention of the authorities?

[00:08:51] Speaker 05:
Typically, we've got somebody who's done something bad.

[00:08:53] Speaker 05:
This person seems to have been law-abiding, tax-paying.

[00:08:57] Speaker 05:
The only flaw is, of course, manner of entry.

[00:09:01] Speaker 05:
Why is this case?

[00:09:01] Speaker 05:
I mean, there are an awful lot of bad guys out there.

[00:09:06] Speaker 05:
Why has the government chosen to pursue this one?

[00:09:08] Speaker 02:
Your honor, that's left to the discretion of the Department of Homeland Security.

[00:09:13] Speaker 02:
In terms of factually speaking, as to this individual case, there seems to be some discussion during proceedings as he came to the attention of DHS, the fact that he had a prior

[00:09:24] Speaker 02:
order of removal and was apprehended based off of that.

[00:09:28] Speaker 02:
And as a prior reentrant, sorry, and someone who's previously removed the DHS within its discretion determined that he was a priority and reinstated that prior order of removal.

[00:09:40] Speaker 02:
And that that discretion is up to, is solely with DHS.

[00:09:45] Speaker 05:
I understand that.

[00:09:49] Speaker 05:
And maybe you don't know the answer as to why was the discretion exercised in this case.

[00:09:55] Speaker 02:
I don't have the answer for that, Your Honor.

[00:09:58] Speaker 02:
And that, in general, generally speaking, ultimately is left to, as I said, to DHS, especially in the context of someone who illegally entered the United States, was removed, and then illegally reentered once more.

[00:10:13] Speaker 02:
And so that falls entirely within DHS's purview and their discretion in reinstating that prior order.

[00:10:22] Speaker 02:
The matters that relate to the reinstatement of a prior order, whether the individual is an alien, whether the individual was previously removed, and whether they legally reentered, those are the three issues that are typically that are subject to this court's review in reinstatement context, have not been challenged.

[00:10:39] Speaker 02:
So the validity of the reinstatement order hasn't been challenged before this court.

[00:10:43] Speaker 01:
Although I did wonder whether he came to the attention of the agency because his wife initiated LPR proceedings for him.

[00:10:54] Speaker 02:
I don't know if there's anything in the record to substantiate that, Your Honor.

[00:10:59] Speaker 02:
The discussion, I believe there was something to do with during the proceedings he was possibly sponsoring an individual or somehow may have came to the attention based off of something related to that.

[00:11:12] Speaker 02:
As to how he came to the detention, connecting the two between his wife applying for residence status for him and that, I'm not sure if that's supported by the record, Your Honor.

[00:11:26] Speaker 02:
But ultimately, that discretion still lies with DHS to determine whether or not they would like to reinstate an order of removal that was previously executed for someone who was unlawfully present.

[00:11:39] Speaker 05:
You know, over the years often the government is willing to mediate in cases like this one where the asylum seeker or the withholding seeker has done nothing wrong except for the manner of entry and has a history of family here that's entitled to be here and good behavior while here.

[00:12:03] Speaker 05:
Would the government be willing to explore the possibility of mediation?

[00:12:07] Speaker 02:
Your Honours, if you order that, we will obviously partake in it, but we believe this case here is, it can be decided on the merits that's presented, and as a reinstatement of, and the fact that the individual is someone who was previously order removed and unlawfully entered a second time, or possibly a third time in this case, I believe DHS would treat that as a priority in that regard.

[00:12:29] Speaker 02:
But if your Honours wish to order that, of course the government will take part if required.

[00:12:34] Speaker 04:
Has there been a visa now available to the petitioner in connection with this LPR application?

[00:12:42] Speaker 02:
I believe there was an I-130 filed, and it was immediate status based off of his partner.

[00:12:48] Speaker 02:
But I'm not sure what the status of that is.

[00:12:52] Speaker 02:
My colleague may have more information in regards to that.

[00:12:54] Speaker 02:
That wasn't necessarily relevant to the current proceedings.

[00:12:58] Speaker 03:
It just seems odd that the government says, sure, here's your visa.

[00:13:01] Speaker 03:
At the same time, we're also going to remove you.

[00:13:04] Speaker 02:
I believe that, generally speaking.

[00:13:07] Speaker 03:
I mean, legally I understand it's, you know, they can continue, but it just seems odd as just a practical matter to have that at the same time.

[00:13:14] Speaker 02:
I think that's the I-130 grant, excuse me, sorry, speaking over your honor.

[00:13:17] Speaker 02:
The I-130 would be handled by USCIS while the reinstatement of the removal order would be handled by a different section of DHS, and sometimes those two parts have separate tracks in terms of how they handle an individual case.

[00:13:33] Speaker 01:
Is it the government's position, counsel, that any time there's a reinstatement of removal order, that basically restricts the circuit's ability to review it, and that's regardless of the nature of the alleged constitutional infirmity?

[00:13:48] Speaker 02:
Well, Your Honor, if you look at your case in Perez Guzman, the court noted in reviewing the, for example, in this case, the statutory bar to asylum, took note of the fact there may be humanitarian consequences in regards to the reinstatement statutes bar on asylum.

[00:14:08] Speaker 02:
But despite those reservations and despite those concerns, ultimately upheld the

[00:14:12] Speaker 02:
the government's, the DHS's interpretation of that reinstatement statute in which that asylum was precluded despite those concerns.

[00:14:19] Speaker 02:
And the court has continued to do so in analyzing these cases and holding that asylum is precluded, even in situations where there were tolerable constitutional claims.

[00:14:31] Speaker 02:
Based off of the fact that, such as this case, where there's an expedited removal order, the court's jurisdiction is extremely limited, and that limitation

[00:14:40] Speaker 02:
was recognized by Therosigium and subsequent cases by this court.

[00:14:44] Speaker 02:
So I think the limitations there have been addressed.

[00:14:48] Speaker 02:
And even as I stated, where a court is recognized as a colorable constitutional claim, the limitation based off of how Congress defined the statute in terms of addressing expected removal orders

[00:15:03] Speaker 02:
did limit the court's ability for judicial review over such orders, even in those contexts.

[00:15:14] Speaker 02:
Are there any other further questions regarding that issue, Your Honors?

[00:15:18] Speaker 01:
No.

[00:15:19] Speaker 02:
Thank you very much for your time.

[00:15:21] Speaker 01:
Thank you, Council.

[00:15:36] Speaker 00:
I wanted to speak, Your Honor, as a petitioner's claim, I believe, is distinguishable from Perez Guzman because petitioner's removal order in this case was defective because it was obtained under duress in violation of U.S.

[00:15:50] Speaker 00:
constitutional due process.

[00:15:52] Speaker 00:
So that's how we can distinguish our case here from Perez Guzman.

[00:15:55] Speaker 00:
And the U.S.

[00:15:56] Speaker 00:
Supreme Court case of Thurogusium, the majority opinion also recognized that aliens who have established connections in the U.S., like Petitioner in this matter, have more robust due process protections.

[00:16:11] Speaker 00:
And so this is right on point.

[00:16:13] Speaker 00:
And to address the question about the approved petition, yes, the U.S.

[00:16:17] Speaker 00:
citizen spouse

[00:16:19] Speaker 00:
Did file an immediate relative petition it was approved and the petitioner in this case has two US citizen children and a citizen wife no criminal record a lot of equities That we can share also with the court Would you be willing to participate in mediation yes, yes your honor we would

[00:16:45] Speaker 01:
All right, thank you, Council.

[00:16:47] Speaker 01:
Thank you.

[00:16:48] Speaker 01:
Thank you both for your argument this morning.

[00:16:50] Speaker 01:
The matter is submitted.