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First matter on for

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all our lawyers that come here.

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But I want to say on behalf of the panel, in case I forget later and we get involved in questions, that we certainly do appreciate pro bono counsel taking cases for the court because it certainly helps articulate difficult issues so that we have the best information in deciding the cases.

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And we don't take that for granted, and we do.

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And it looks like we've got

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We appreciate all of you, and with hopes that you're all well prepared and we're ready to go.

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So, good morning.

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Good morning.

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Good morning.

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May it please the Court, Marcus Curtis, for the petitioner, Mr. Humtree Tran.

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I'm going to try to reserve three minutes of my time.

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All right.

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Thank you.

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Under this Court's decision in Bonilla, the Court has jurisdiction to review the Board's denial of a motion to reopen Suez-Bonte for constitutional or legal

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by legal error, jurisdiction is proper, and remand is the appropriate course.

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Well, let's go ahead.

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Let me push back on one part of what you said.

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So let's assume for the sake of argument that I agree with you that the IJ got to Shamps wrong.

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Where do you see that the BIA

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I see that they said, for the reasons articulated in the IJ, we agree with the facts presented in this case do not warrant suicide reopening of the proceedings.

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And then, of course, they do say that Deschamps is incremental.

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But where are they adopting the IJ's position that Deschamps is inapplicable in the immigration context?

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Right.

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I mean, my first response, Your Honor, would be that

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your honor.

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So my second point would be there's no other reason to justify the incremental change determination or the no fundamental change determination.

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So the BIA adopted that portion of the IJ's decision and in terms of the rationale to support the chances, incremental not fundamental, the only reason that could provide the support would

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How can we review whether that really is incremental or fundamental?

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If the board or the IJ had said what you said, Judge Bennett, I think this might actually be, it might be more difficult for us to argue that it got it wrong.

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Because by saying Deschamps is incremental because it represents sort of an evolving part of the case law, there's no,

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of going hypothetically that your client obviously was here for a really long time.

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But it's not law right now.

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Right, it's not law right now.

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And it was the last administration who restarted these removals.

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Well, I think the board obviously, I think it might be difficult to dispute that they recognize that sui sponte, they do have discretion as to.

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changes in the law.

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And assuming the situation is such that the law was applied at the time, there is an interest in finality of judgments.

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And that was one of the reasons that the BIA said, hey, this

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Why couldn't that just be enough here and avoid doing the categorical and the modified categorical and something that gives all of us heartburn?

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certain circumstances are met.

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So it hasn't been a long time.

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respect on that.

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I think that at the top of – I've been trying to be quiet and listen carefully, which is hard for me – but I think that you identified three legal errors that you think the IJ made, right?

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And that the BIA adopted all of those three.

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But I think what we're positing is that there's a – or what I'm positing anyway – didn't the BIA glom onto – that's probably not a legal term – the fourth reason?

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Do you not read a fourth reason that the IJ gave, which is as a matter of discretion?

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I did and I think that was swept in by the BIA.

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So in other words, even if I agree with you that there were three legal errors committed by the IJ, it seems to me that the BIA was

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But I think part of the difficulty is that it doesn't actually make sense in the context of Mr. Tran's case.

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Quite frankly, I don't think that sentence would amount to a reasoned decision.

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Well, I think that's one of the problems.

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We have to review this.

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And the matter of unbridled discretion is, by definition, we've written quite a bit about it's almost impossible to review that.

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But you said you think it's not

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I mean, I certainly agree.

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The board has significant discretion here.

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But the reasons given still have to actually make sense in the context of the case before the agency.

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You can't sort of… Why wouldn't it?

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Why wouldn't what we're calling this fourth reason make sense in the context?

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Setting aside the three, if I agree that there's three legal errors, why wouldn't this other issue make sense in the context of this case, please?

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I think we're fine with seeing you on Lona and so I just want to...

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I mean, there was no reason to have done that.

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There wasn't a fundamental change in law sort of situation.

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And then the, the other point about not appealing the original removal order against the original removal order.

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in the context of this case.

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I mean, it's sort of a broader issue about foreign decisions at the immigration court level, but that just, it doesn't work here.

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Now, in Lona, the reasons did make sense.

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In fact, in Lona, this was a Judge Callahan opinion.

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So you're telling me I made sense back then.

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but the board denied the motion to reopen for discretionary reasons, and those reasons included the fact that she had already been removed to Mexico years prior, and the fact that

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May it please the court, my name is Linda Chang, appearing on behalf of the United States Attorney General.

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In this case at bottom, the agency denies you a sponsor reopening as a matter of discretion, as your honors have noted.

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And to underscore Judge Callahan's statement about if a petitioner waits long enough, the laws will change, and potentially to the benefit of a petitioner here, the reason that petitioner gave that he

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waited long enough that the reasons came about through the evolving interpretation of the categorical approach and the modified categorical approach, which is still evolving now.

[00:13:51] Speaker 01:
Counsel, I want to clarify something with the government.

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In your brief, you did not cite Burbano, right?

[00:13:59] Speaker 01:
Yeah, that's correct.

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And this is not a Burbano case, right?

[00:14:02] Speaker 01:
It is not.

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And in fact, on page 15 of your brief, you tell us that the Board didn't rely on the possibility

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clarified.

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it.

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And that is the discussion of these points.

[00:15:16] Speaker 01:
Yeah, but isn't that also a discussion of Deschamps?

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So how can it be that the board didn't adopt the Deschamps discussion of the IJ, but it did adopt the finality discussion?

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So it adopted the finality discussion because it is something that

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Judge's discussion of Schamp's was not necessarily wrong.

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It summarized it and presented it.

[00:16:09] Speaker 01:
Okay, well, I think it's wrong, but putting that aside, the VIA decision does not disclaim the IJ's Schamp's discussion right or wrong, right?

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It read the IJ's decision in its full context, and if we go to the final page of the immigration judge's decision, we see that it summarizes, nonetheless,

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So I think for purposes of the hypothetical, if we assume that – just assume, if you would – that there are three – all three are errors.

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The IJ committed three different errors.

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And the question is – for me, anyway, and I think this is what Jenica is getting at – was there not a fourth reason given by the BIA?

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that the immigration judge said though, because it did give the alternative holding that, nonetheless, the champs

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that even if the change in the law were a fundamental change, and even if it were applicable in this case, the court probably applied the law in 1994 for a valid removal order in this case.

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And also I'd like to point out that in recent communications with DHS, it has been indicated that they have made continuous efforts

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from Vietnam and issuing travel documents.

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The latest effort was made in December of 2023, and they still have refused to issue travel documents for petitioners.

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And therefore, due to a political element outside of the government's control, we have not been able to execute the order.

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So is this another exercise in futility in terms of, I hate to, you know, I mean, we decide what comes to us, and that's not going to, but it's,

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It just sort of seems like, you know, we're spending a lot of time on something that's never going to happen.

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I would not say that it's futile.

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The DHS still continues to make this effort to remove Petitioner, and I would say that they should continue their efforts as it is a valid removal order.

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Is there any, I don't see it in the record, is there any indication that he's continued to commit crimes?

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It is not part of this record, so I'm not sure.

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I would be inclined to say that although the Supreme Court seems to think that the categorical and the modified categorical approach is easier said than done, I think most of us that have been dealing with it, our hair is on fire for most of the time.

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That being said, what is your best argument to deny the petition here?

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If we feel that the legal orders, hypothetically, if we agree that the legal errors that a petitioner has identified were in fact legal errors, what is your best argument?

[00:20:41] Speaker 04:
Two points on that.

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even if Deschamps applied in the way that Your Honor hypothesizes, it was not a fundamental shift in the law.

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And as you have described, it is constantly evolving and is still evolving to this day.

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And even if it were a fundamental shift in the law, it does not follow that the board committed legal or constitutional error simply by denying the discretion or relief of suesponte reopening.

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It is not required, even if there is a finding of a fundamental shift in the law.

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So therefore, there was no legal error committed by the agency in this case.

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I'd be happy to answer them.

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other reason.

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I mean, I think the route there would be to send it back to the agency for better clarification.

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I mean, if the agency decision is indiscernible or unclear.

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Add another five years to the case.

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I mean, possibly, Your Honor.

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And this kind of gets back to sort of the political context we've alluded to in both sort of arguments.

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I mean, legislation changes, enforcement priorities change, administration priorities change.

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But if the agency decision

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The other point is just the discretionary reasons, again, this fourth paragraph, that you can't cut and paste and just hope that it sticks if you're the agency.

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The discretionary reasons have to make sense in the context of the case before it.

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And Lona, they made sense.

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That's why the board and Lona said, OK, we acknowledge the fundamental change argument, but here's A, B, and C, why.

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at the bottom that isn't sort of logical in the context of Mr. Tran's case.

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So we would say that Bonilla controls that the agency legally erred in denying the motion to reopen Sue Espante, and we ask the courts to remand accordingly.