[00:00:00] Speaker 04:
Good morning and welcome to the Ninth Circuit.

[00:00:05] Speaker 04:
We will hear argument this morning in Hernandez-Hernandez against Garland.

[00:00:10] Speaker 04:
Ms.

[00:00:10] Speaker 04:
Madrid, you may proceed.

[00:00:20] Speaker 00:
Good morning.

[00:00:20] Speaker 00:
May it please the court.

[00:00:22] Speaker 00:
I'm Glenda Donna of the Northwest Immigrant Rights Project on behalf of petitioners.

[00:00:26] Speaker 00:
Yesenia Hernandez and her seven year old son, both of whom are asylum seekers from El Salvador.

[00:00:32] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:34] Speaker 04:
You may, but just keep track of your time.

[00:00:37] Speaker 00:
Yes, Your Honor.

[00:00:38] Speaker 00:
The second petition in these consolidated cases provides for the most straightforward way of resolving the issues in this case.

[00:00:45] Speaker 00:
So I will be focusing my argument on the BIA's erroneous denial of the family's motion to reopen for ineffective assistance of counsel.

[00:00:51] Speaker 00:
But I'm obviously happy to answer any questions about the issues raised in the first petition.

[00:00:56] Speaker 00:
The BIA in this case did not dispute or call into question counsel's errors and deficient conduct.

[00:01:02] Speaker 00:
But it found that the family had failed to demonstrate prejudice and denied the motion to reopen on that basis.

[00:01:08] Speaker 00:
That denial was an abuse of discretion because the conclusion that there was no prejudice was contrary to the law.

[00:01:15] Speaker 00:
Cases like Deeringer and Flores Ortega make clear

[00:01:18] Speaker 00:
that where counsel's error causes their client to miss an appeal filing deadline that effectively deprives them of the judicial proceeding altogether, and the agency must then afford the client a presumption of prejudice.

[00:01:31] Speaker 00:
That is precisely what happened here.

[00:01:33] Speaker 00:
It is undisputed that counsel did not notify the family of the BIA's decision in their case until after the appeal deadline had run.

[00:01:42] Speaker 00:
It is thus undisputable that counsel did not let them know about the resolution of their case or the necessary next steps to continue pursuing their case until after it was too late.

[00:01:54] Speaker 04:
So the board seems to have thought that even though if counsel didn't tell them that because the board had sent them a copy that they would have been aware of it independently of counsel

[00:02:04] Speaker 00:
That's correct, Your Honor.

[00:02:05] Speaker 00:
However, the reason that that courtesy copy did not cure the prejudice that the family suffered as a result of their counsel's deficient conduct is because the record is undisputed that Miss Hernandez was unaware that the BIA had actually denied her claim until counsel explained it to her.

[00:02:21] Speaker 00:
And the reason why that controls here is because this court has recognized in cases like Monjara's, Munoz's V.I.N.S.

[00:02:30] Speaker 00:
and Iturrivaria V.I.N.S.

[00:02:32] Speaker 00:
that where a noncitizen is represented, it is reasonable for that noncitizen to rely on their counsel to explain the proceedings to them.

[00:02:40] Speaker 00:
And in Iturrivaria V.I.N.S.

[00:02:42] Speaker 00:
in particular, the noncitizen there had noticed from the immigration judge directly in open court that there was a filing deadline

[00:02:50] Speaker 00:
for his application for relief and his attorney missed that deadline and didn't contact the client until after it had run to ask for evidence.

[00:02:59] Speaker 00:
And this court specifically said it was reasonable for the client to wait for counsel because one of the reasons that non-citizens retain legal assistance in the first place

[00:03:08] Speaker 00:
is because they assume that an attorney will know how to comply with the procedural details that make immigration law so complicated.

[00:03:16] Speaker 00:
And this court in Monjara's Munoz-Ballanes recognized that once a non-citizen retains counsel, it is reasonable for them to give effective control

[00:03:25] Speaker 00:
of their case to their retained counsel.

[00:03:28] Speaker 00:
Here, it is undisputed that Ms.

[00:03:30] Speaker 00:
Hernandez relied on her counsel to explain what was happening in her proceedings and did not know about the fact that the BIA had even decided her case, much less that there was a ticking clock on her appeal until after the deadline had run, three days after the deadline had run, in fact.

[00:03:47] Speaker 00:
And for that reason,

[00:03:48] Speaker 04:
The fact that the courtesy copy was mailed to her did not cure that Council's prejudice did not cure the prejudice that she suffered as a result of her reasonable reliance on Council and if she supposed that she had been aware of what the deadline was and Understood something needs to be filed by by 30 days Given that she was represented Do you think she could have filed something on her own?

[00:04:15] Speaker 00:
Your Honor, I think it's pretty clear from the record here that she lacked the capacity to do so.

[00:04:20] Speaker 00:
First, it's undisputed she does not speak English.

[00:04:23] Speaker 00:
And she did, when she was pro se initially, secure assistance to help her in completing an asylum application following the immigration judge's

[00:04:31] Speaker 00:
instructions in court with Spanish language interpretation as to what she should do.

[00:04:36] Speaker 00:
But after that, the immigration judge himself impressed upon her the importance of securing counsel in order to continue with that case.

[00:04:44] Speaker 00:
So here, what we have is somebody who was aware of the limitations that she had and was very diligent in securing counsel to navigate what is a very complex process.

[00:04:55] Speaker 00:
And counsel failed her, unfortunately, at a critical time.

[00:04:59] Speaker 00:
Council failed her because council, you know, it was an accident, but nonetheless prejudiced her ability to file a timely petition for review in this court.

[00:05:08] Speaker 00:
And Deeringer and Flores Ortega tell us when a non-citizen is prevented from filing a timely appeal because of their council's error, they're not only prejudiced, but they're entitled to a presumption of prejudice.

[00:05:20] Speaker 00:
In Deeringer, counsel's efficient conduct was failing to file a timely notice of appeal.

[00:05:25] Speaker 00:
In Deeringer, in adopting Flores Ortega in the immigration context also tells us that counsel's failure to consult with a client about their appeal once there's been an adverse decision made in their case also separately entitles the client to a presumption of prejudice because they've been denied counsel at a critical juncture of their representation.

[00:05:46] Speaker 00:
And here, that is precisely what happened.

[00:05:49] Speaker 00:
Ms.

[00:05:49] Speaker 00:
Hernandez was not made aware of the filing deadline or of even the decision in her case until after the deadline had run.

[00:05:55] Speaker 00:
And Deeringer does not require more in order to make out a but for showing of prejudice.

[00:06:02] Speaker 00:
The individual endearinger, the evidence that the court looked at was that the petition for review was filed or the appeal was filed late and that it was filed late because of counsel.

[00:06:12] Speaker 00:
Ms.

[00:06:12] Speaker 00:
Hernandez has demonstrated here that her appeal was filed late because counsel failed to let her know that the BIA had decided her case and that there was a 30 day deadline.

[00:06:23] Speaker 00:
Steeringer does not require more, and the BIA ignored the case law, demonstrating not only that the family was prejudiced as a result of their counsel's failure, but that the family should have been afforded a presumption of prejudice, and its decision was therefore

[00:06:38] Speaker 00:
error and it was an abuse of discretion and so we believe that the proper course here would be for this court to vacate that erroneous decision and to remand it for the BIA to reissue the decision and allow the family an opportunity to present their claims in a timely petition for review here.

[00:07:00] Speaker 04:
I mean do we

[00:07:04] Speaker 04:
We only need to do that.

[00:07:05] Speaker 04:
I mean, we have the merits before us, right?

[00:07:07] Speaker 04:
I mean, so do you think we can just go ahead and look at the merits now, or what's your view on how we should proceed?

[00:07:16] Speaker 00:
Your Honor, I believe that you may look at the merits now.

[00:07:19] Speaker 00:
We have fully briefed the merits to you.

[00:07:22] Speaker 00:
However, I do believe that in order for you to reach the marriage, you would need to rule on the first petition for review, which raises some threshold questions about the existence of equitable tolling.

[00:07:33] Speaker 00:
And given that the Supreme Court has granted cert on Riley v. Garland, which is looking at the question of whether the deadline at 1252 B1

[00:07:43] Speaker 00:
Is not jurisdiction is jurisdictional or not I believe the court would need to wait would probably find it prudent to wait for the Supreme Court to rule on Riley and We don't we think that we don't you don't need to wait for that to happen you may just resolve the case on the motion to on the motion to reopen if you agree with with

[00:08:04] Speaker 00:
Us that it the BIA erred because it did not look at did not follow Dearing or did not follow Flores Ortega or many of the other cases from this court that have made it clear that where counsel's heir deprives an individual of their timely appeal that they are accorded a presumption of prejudice But we did fully brief those issues your honor.

[00:08:22] Speaker 04:
So then let me so on on the merits of

[00:08:26] Speaker 04:
Why, um, you know, we're reviewing for substantial evidence, right?

[00:08:30] Speaker 04:
So you need to show that on this record, any reasonable fact finder would be compelled to conclude, you know, contrary to what the board did.

[00:08:37] Speaker 04:
So you're focusing to start on the question of the social distinction of your proposed particular social groups.

[00:08:45] Speaker 04:
What, what is the evidence that would compel a conclusion that those groups are perceived as distinct?

[00:08:51] Speaker 00:
Your Honor, the strongest evidence is the existence of a witness protection law in El Salvador, which this court in Enriquez Rivas recognized is sort of the best way of demonstrating that to a society, a group is socially distinct because of their vulnerable status.

[00:09:06] Speaker 00:
The exact same witness protection law that this court used to demonstrate, or rather used as

[00:09:12] Speaker 00:
as an adequate manifestation of social distinction is the same witness law that is in place in El Salvador at the time that Miss Hernandez was there and that recognizes her.

[00:09:25] Speaker 00:
The witness law itself is not limited to individuals who testify in open court.

[00:09:30] Speaker 00:
The witness law

[00:09:31] Speaker 00:
And the court can look at page 110 of the Certified Administrative Record.

[00:09:36] Speaker 00:
Specifically it extends its protections to individuals who provide, who cooperate with the authorities in the investigation of

[00:09:45] Speaker 04:
But just because a country has a law that classifies people in a particular way, it doesn't follow that society perceives that group as distinct.

[00:09:58] Speaker 04:
In this country, the Internal Revenue Code says that if you put solar panels on your house, you get a particular tax credit.

[00:10:03] Speaker 04:
And if you don't, you don't.

[00:10:05] Speaker 04:
But it doesn't follow that American society perceives installers of solar panels as a socially distinct group.

[00:10:12] Speaker 00:
Your Honor, that is true, except that the nature of the law in El Salvador singles out this group as meriting protection, right?

[00:10:20] Speaker 00:
And our asylum laws are about protection itself.

[00:10:24] Speaker 00:
And so what the witness protection law does is it says this particular group of people are a distinct group of people, and it recognizes that they're in a particularly vulnerable place because of the fact that they are providing testimony

[00:10:38] Speaker 00:
And they are collaborating with the authorities in the investigation of gang activity.

[00:10:45] Speaker 01:
And so, Enriquez Rivas— That leads me to a question.

[00:10:48] Speaker 01:
Does it have to be providing testimony, just talking to the police?

[00:10:51] Speaker 01:
What's the cooperation?

[00:10:53] Speaker 01:
That's socially distinct.

[00:10:54] Speaker 00:
Yes, your honor, cooperation by definition requires some sort of affirmative act, it is not passive.

[00:11:00] Speaker 00:
And so the facts of this case demonstrate that in El Salvador, any sort of cooperation, active cooperation that is

[00:11:10] Speaker 00:
speaking to the authorities, reporting to the authorities about gang activity, that constitutes the requisite action.

[00:11:18] Speaker 00:
It is not mere, it is not passive.

[00:11:20] Speaker 00:
It requires an affirmative act that may be observed and is observable.

[00:11:23] Speaker 01:
But it doesn't have to go so far as to actually providing testimony.

[00:11:26] Speaker 00:
It does not, Your Honor.

[00:11:27] Speaker 00:
And notably, Enriquez Rivas made it clear that the fact of providing testimony in open court was not a limitation.

[00:11:36] Speaker 00:
And the witness law itself is not limited to providing testimony in court.

[00:11:40] Speaker 00:
It is about participating in the investigation of criminal conduct.

[00:11:47] Speaker 00:
If I may reserve the rest of my time, if there are no questions.

[00:11:50] Speaker 00:
Thank you.

[00:11:56] Speaker 04:
Mr. Hogan.

[00:11:57] Speaker 02:
Good morning.

[00:11:57] Speaker 02:
May it please the court, Brendan Hogan, for the government.

[00:12:01] Speaker 02:
The government agrees with the Petitioner's Council that it would be best for this court to decide the case on the second review petition because the underlying review petition, it would be best to reserve judgment pending the Supreme Court's decision in Riley.

[00:12:15] Speaker 02:
However, if you would like to discuss the first review petition, just a couple points.

[00:12:19] Speaker 02:
As we point out in our brief, it's unnecessary to address the equitable tolling argument because the motion to reopen is an alternative mechanism and petitioner will not be denied judicial review.

[00:12:32] Speaker 02:
The board can either grant the motion to reopen and there'll be a fresh 30 days or if they deny it, as is the case today, the case will be reviewed.

[00:12:40] Speaker 02:
On top of that, it's a mandatory claims processing rule, which we timely asserted in our motion for summary disposition and we restarted again in our brief.

[00:12:50] Speaker 02:
And then on top of that, petition would have to show equitable tolling applies.

[00:12:53] Speaker 02:
And in this case, the presumption of equitable tolling under common law would not apply.

[00:12:58] Speaker 02:
for several reasons.

[00:13:00] Speaker 02:
If you look, Congress enacted the current statute under the backdrop of federal rule of appeal procedure 26B2, which specifically states you cannot extend the time to file a review petition from an agency decision absent clear congressional intent.

[00:13:17] Speaker 02:
And that's not what happened here in the original statute 1101A5,

[00:13:24] Speaker 02:
That initially allowed 90 days to file a review petition.

[00:13:27] Speaker 02:
In 1996, Congress amended the statute to say, now you only have 30 days, and you must do it.

[00:13:34] Speaker 02:
And they didn't include any exceptions.

[00:13:35] Speaker 02:
And this signifies that Congress was aware that Congress intended that they wanted finality, that people would bring their claims as soon as possible.

[00:13:44] Speaker 02:
So based on all of that, the court should not even reach the merits in the underlying petition, because all of those legal impediments are in place.

[00:13:53] Speaker 02:
with regards to the second review petition, the board was correct here.

[00:13:57] Speaker 02:
They did not abuse their discretion.

[00:13:59] Speaker 02:
This is not a case where the petitioners were misled by council.

[00:14:05] Speaker 02:
There was no agreement that they would file a review petition if the board issued an adverse decision.

[00:14:11] Speaker 02:
Council did not mislead them that they were promptly did not promise we'll do it.

[00:14:16] Speaker 02:
What happened here, unfortunately, is petitioner was given notice.

[00:14:20] Speaker 02:
And it warned her, clearly, you have 30 days to file a review petition.

[00:14:24] Speaker 01:
But isn't it unreasonable to expect someone who doesn't speak English has, I think, a middle school education to understand the significance of such a... I mean, how are they to... But that goes to the... I didn't mean to interrupt it, was it your honor?

[00:14:39] Speaker 02:
No, I mean, just... It goes to why the board does this in the first place it did.

[00:14:43] Speaker 02:
a matter of copy on, which was a response to this court's precedent from 20 years ago, encouraging the court or the board to do exactly what they did in this case to issue notices to people because this court was frustrated that petitioners were missing the filing deadline.

[00:15:00] Speaker 02:
And this was like an extra protection to preserve their right to file an appeal.

[00:15:04] Speaker 02:
And that is what happens in this case.

[00:15:06] Speaker 02:
And even though it was in English, at that point, Petitioner could have gone to her counsel and asked, I got this thing, what is this?

[00:15:13] Speaker 03:
She could have consulted other counsel or she could have found- Even outside the immigration context, say you're a sophisticated client, you're an in-house lawyer, you lose a trial, and you have, you know,

[00:15:24] Speaker 03:
30 days to file a notice of appeal, whatever the jurisdictional rule is, and if your attorney doesn't do that and the rebuttal as well, you knew of the trial verdict.

[00:15:35] Speaker 03:
I mean, you would think that lawyers' performance is deficient, right?

[00:15:39] Speaker 03:
I mean, even with a sophisticated client.

[00:15:41] Speaker 02:
That is true, but deficiency is not the issue here, Your Honor, with your respect.

[00:15:45] Speaker 02:
implicitly acknowledge that this was deficient conduct, but it goes to prejudice.

[00:15:51] Speaker 02:
And the prejudice is whether she was wholly prevented from filing an appeal.

[00:15:56] Speaker 02:
And at a minimum, again, this is the reason the board started sending notices to people was to encourage them to do something.

[00:16:03] Speaker 02:
She could have consulted with new counsel, she could have contacted legal services organization, or she could, and I'm not saying it's easy, but she could have done what many petitioners do before this court, which is at minimum.

[00:16:13] Speaker 02:
File a pro se review petition, which is not come file pro se while she's represented.

[00:16:18] Speaker 02:
I mean we we often refuse to dock it the pro se Documents that are filed purportedly filed on behalf of people who are represented by council That's a fair point your honor But that goes back to there was no agreement with the legal services organization to represent her before this court She says nothing about that and her affidavit at page 21

[00:16:37] Speaker 02:
The prior legal services organization attorney does not say anything about that in her very extensive affidavit about what happened here and the independent counsel that was retained to file the motion to reopen before the board in detailing all of the reasons why the board should reopen did not raise that issue.

[00:16:54] Speaker 02:
So in this case, there would be no impediment or no conflict into the petitioners filing a pro se review petition.

[00:17:01] Speaker 02:
And for that reason, unfortunately for petitioners, there's just simply no prejudice here.

[00:17:05] Speaker 02:
Again, it's the very reason the notices are sent are to avoid cases just like this.

[00:17:11] Speaker 04:
And as a practical matter, she's represented.

[00:17:15] Speaker 04:
And as Judge Lee noted, you would reasonably expect that a competent lawyer

[00:17:24] Speaker 04:
would file something by the deadline and not allow the time to run out.

[00:17:28] Speaker 04:
And so you don't know that your lawyer is not competent

[00:17:34] Speaker 04:
until day 30 arrives and he doesn't file it.

[00:17:37] Speaker 04:
So why would you think on day 29 that you should go try to file something yourself?

[00:17:43] Speaker 02:
Well, two things, Your Honor.

[00:17:44] Speaker 02:
One, that goes to competency, which is the deficient conduct.

[00:17:47] Speaker 02:
And there's no argument about that here.

[00:17:48] Speaker 02:
It goes more towards prejudices.

[00:17:50] Speaker 02:
Did that deficient conduct preclude her under derringer and accompanying cases from filing a review petition?

[00:17:56] Speaker 04:
My point is it practically precluded her from doing it, arguably, because

[00:18:02] Speaker 02:
She had no way of knowing that she needed to do it herself until it was too late for her to do it herself The cover sheet states like the clock is running you have 30 days and then her after David She said had I known I would have done something but she didn't know it.

[00:18:16] Speaker 02:
She was she's never denied receiving the notice It was mailed to the address listed on the administrative appeal notice which under the regulations is where they send these notices and

[00:18:25] Speaker 01:
I guess your argument, if I understand it correctly, is that she should have known she had to do something because her attorney didn't say that the attorney was...

[00:18:34] Speaker 01:
she should have noticed that an order has come from an administrative tribunal, which is determining whether she has the right to- Why wouldn't a reasonable person, if the attorney was not going to act, I think a reasonable person would expect their attorney to reach out to them and say, hey, you received this notice.

[00:18:50] Speaker 01:
I'm not going to file anything else on your behalf.

[00:18:52] Speaker 01:
You have to do something.

[00:18:54] Speaker 01:
It seems to me that that is what it means to rely on the advice of counsel.

[00:18:59] Speaker 02:
But again, but she didn't rely on the advice of counsel, your honor, like they had nothing in her affidavit, the affidavit from independent counsel or the prior legal services attorney says anything about what they had discussed about whether what they what representation would be if she lost her case.

[00:19:18] Speaker 02:
And she was aware that there was an appeal pending with the Board of Immigration Appeals.

[00:19:22] Speaker 02:
And at a minimum, if you received the notice from the board,

[00:19:27] Speaker 02:
Understanding that she doesn't speak English a reasonable person with a cover sheet saying you have 30 days to preserve your appeal As the board pointed out should do something So if we disagree with you on

[00:19:42] Speaker 04:
The the rationale that the board gave for denying the motion to reopen Should we grant that petition and remand or you know, you haven't Briefed the merits, which I suppose could be an alternative ground for the petition believe that's our second to the last footnote in our brief which is if you disagree with our conclusion or our defense of the no prejudice determination you would have to remand for the board to address that issue and

[00:20:08] Speaker 02:
that the board would then have to apply the presumption of prejudice and determine whether it would reissue or not.

[00:20:14] Speaker 04:
Okay, so you are not suggesting that we... One could imagine someone in your position saying, well, even if you look at the merits, she's not going to prevail, and so you can deny it, but you're not making that argument.

[00:20:30] Speaker 02:
I think it would be best either for this court to decide the review petition and either deny it or remand for the presumption of prejudice issue.

[00:20:40] Speaker 03:
The notice that the government gave, was that in English only or did it?

[00:20:44] Speaker 03:
It was in English only.

[00:20:46] Speaker 03:
But it's clearly on letterhead from the Board of Immigration Appeals.

[00:20:49] Speaker 03:
If the government knows she doesn't speak English and you send something in English, I mean it's...

[00:20:54] Speaker 03:
What are you supposed to do?

[00:20:55] Speaker 03:
Even if we're in English, it's probably hard to understand it.

[00:20:59] Speaker 02:
True.

[00:20:59] Speaker 03:
I'm sorry, will you finish?

[00:21:01] Speaker 03:
Sorry.

[00:21:01] Speaker 03:
As it says a practical matter, it seems like it was very difficult for her given all the circumstances.

[00:21:09] Speaker 02:
True.

[00:21:09] Speaker 02:
But two points, Your Honor.

[00:21:10] Speaker 02:
She was aware she was in removal proceedings and that an immigration appeal from an immigration judge's adverse decision was pending.

[00:21:18] Speaker 02:
And now you're receiving a document with the Board of Immigration Appeals letterhead and also many, many pro se petitioners file appeals with this court every year.

[00:21:31] Speaker 02:
So it stands to reason that she could have filed one on her own, contacted new counsel, or at a very minimum, approached a legal services organization and inquired, like, what is this?

[00:21:42] Speaker 02:
Does the panel have any other questions?

[00:21:45] Speaker 02:
Thank you.

[00:21:46] Speaker 02:
Thank you, Mr. Hogan.

[00:21:49] Speaker 00:
A couple of points, Your Honor.

[00:21:55] Speaker 00:
First, the notice from the BAA is not a clear notice saying, you have 30 days to do something about this notice.

[00:22:02] Speaker 00:
At page 77 of the certified administrative record, what the notice says is, this is a courtesy copy.

[00:22:08] Speaker 00:
Your attorney is receiving a copy.

[00:22:11] Speaker 00:
So a representative non-citizen knows, my attorney is already aware of this.

[00:22:15] Speaker 00:
I will wait for my attorney to let me know.

[00:22:17] Speaker 00:
And then it says,

[00:22:18] Speaker 00:
If the attached decision orders that you be removed from the United States or affirms an IJ's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of this decision.

[00:22:32] Speaker 00:
This isn't language that's straightforward, especially not for somebody who does not speak English, as is undisputed in this case.

[00:22:38] Speaker 00:
It's language that requires explaining.

[00:22:40] Speaker 00:
In this court, in a vague and beholder found,

[00:22:43] Speaker 00:
when dealing with a BIA decision that was two sentences long, that that defied the abilities of a layperson to understand that a final order had been removed.

[00:22:52] Speaker 00:
So it is not as if the board sent a clear notice that Ms.

[00:22:56] Speaker 00:
Hernandez should have understood immediately.

[00:22:58] Speaker 00:
Second, in Iturrivarria BNS, which I've mentioned before, the individual actually received in-person

[00:23:05] Speaker 00:
translated, interpreted notification of a filing deadline.

[00:23:09] Speaker 00:
And this court did not find that that absolved their counsel of their obligations to represent the client.

[00:23:15] Speaker 00:
And it did not mean that the client could not reasonably rely on their counsel to actually follow up in a timely manner.

[00:23:22] Speaker 00:
Third, while we

[00:23:27] Speaker 00:
What we recognize that the government has not briefed the merits issues in this case.

[00:23:31] Speaker 00:
Petitioners did brief the merits in this case.

[00:23:34] Speaker 00:
And the commissioner's order at docket 17 did, we believe, make it clear that the government was required to file an answering brief that responded to petitioners' arguments.

[00:23:43] Speaker 00:
And so we would posit that in not responding to them at all, the government has forwarded those arguments.

[00:23:50] Speaker 00:
And we do believe that this court may reach those arguments because they have been fully briefed.

[00:23:56] Speaker 00:
And finally, with regard to equitable tolling in this case, Your Honor, the government has it wrong.

[00:24:04] Speaker 00:
The way that we analyze the question before the court is not whether Congress has decided to allow for equitable tolling, but rather the inquiry has to be.

[00:24:13] Speaker 00:
Congress legislates statutory deadlines against a backdrop, an age-old principle, the Supreme Court called it.

[00:24:19] Speaker 00:
that equitable tolling is presumptively available for statutory deadlines.

[00:24:24] Speaker 00:
And so the question before the court is not, is equitable tolling allowed here?

[00:24:30] Speaker 00:
Has Congress indicated that the presumption that it is allowed been rebutted?

[00:24:35] Speaker 00:
And the reason why federal rule of appellate procedure 26B2 does not compel a finding that Congress rebutted it is for three primary reasons.

[00:24:45] Speaker 00:
The first is because the inquiry

[00:24:47] Speaker 00:
is what is Congress's intent.

[00:24:49] Speaker 00:
Did Congress intend to prevent the equitable tolling presumption to apply?

[00:24:54] Speaker 00:
The federal rules of appellate procedure were not passed by Congress.

[00:24:58] Speaker 00:
They were court-made rules.

[00:25:00] Speaker 00:
Second, it would be inconsistent with the methodology the Supreme Court has told us we must use

[00:25:04] Speaker 00:
the courts must use in assessing whether the presumption has been rebutted, which requires looking at the specific statutory scheme at issue.

[00:25:12] Speaker 00:
And here, that is inconsistent with looking at a blanket rule from the federal rules of appellate procedure.

[00:25:18] Speaker 00:
And finally, the Supreme Court and this court have left open the question, in some cases, about the availability of equitable tolling when dealing with deadlines for petitions for review of agency decisions.

[00:25:29] Speaker 00:
point out the Harold V. Department of Defense case from May and Alonso Juarez from the Circuit.

[00:25:36] Speaker 04:
Can I ask you one question about your client's declaration?

[00:25:40] Speaker 04:
So it says, if I had been informed of the petition for review deadline, I would have timely pursued such a petition.

[00:25:47] Speaker 04:
It doesn't quite, well, it does not say

[00:25:51] Speaker 04:
I thought counsel, you know, counsel told me you'd file a petition, or I thought counsel was going to file a petition.

[00:25:58] Speaker 04:
Are you asking us essentially to infer that from the context?

[00:26:04] Speaker 04:
Because it's not quite in there.

[00:26:06] Speaker 00:
Your Honor, you're right.

[00:26:07] Speaker 00:
It's not in there because the last time she'd spoken to her counsel, she wasn't at that stage of the proceedings yet.

[00:26:12] Speaker 00:
She was at the BIA appeal stage.

[00:26:14] Speaker 00:
And it is undisputed that she had a retainer for that, right?

[00:26:17] Speaker 00:
And counsel's inefficient conduct did not even allow her to have a conversation with counsel about a retainer for the next step, which would have been a timely petition for review.

[00:26:28] Speaker 00:
Counsel contacted her too late to have that conversation, so she could only sign a retainer for an untimely petition for review.

[00:26:34] Speaker 00:
And the case law, Flores Ortega, makes clear that counsel, in addition to having a baseline obligation of letting your client know in a timely manner that the BIA has decided her case, counsel also has an obligation to consult with her about an appeal.

[00:26:49] Speaker 00:
And the rules of professional conduct make that even clearer at rule 1.3 of the Tennessee

[00:26:54] Speaker 00:
bars and the ABA bars, they note that in order for counsel to be diligent, counsel must consult with a client about an appeal before relinquishing responsibility over a matter even if there have been no conversations or discussions about appeals.

[00:27:08] Speaker 04:
Did you say the Tennessee bar?

[00:27:10] Speaker 00:
Yes, Your Honor, the Tennessee bar is the council in this case was barred in Tennessee.

[00:27:15] Speaker 00:
And so the professional rules, yes.

[00:27:17] Speaker 00:
But also the Washington rules.

[00:27:19] Speaker 00:
The Washington rules here, the client is in Washington.

[00:27:22] Speaker 00:
The Washington rules also adopt that comment from the ABA model rules.

[00:27:28] Speaker 04:
Thank you so much.

[00:27:28] Speaker 04:
Thank both counsel for their arguments.

[00:27:30] Speaker 04:
The case is submitted and we're adjourned.