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

[00:00:04] Speaker 00:
Alfonso Morales on behalf of Mr. Enriquez.

[00:00:08] Speaker 00:
This case has an extensive procedural history with two different A numbers and three different appeals that have been consolidated before the court.

[00:00:19] Speaker 00:
The first matter I'd like to address is the basis of our appeal for the good cause that we believe existed for the continuance of his asylum case, which was denied.

[00:00:31] Speaker 00:
The case was previously on appeal and sent back to the court in July

[00:00:41] Speaker 00:
or excuse me, May of 2017.

[00:00:45] Speaker 00:
But in July of 2017, the IJ set the case for an individual hearing in September of 2017.

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Days before the hearing, approximately 10 days, I realized that it was an individual setting instead of a master setting.

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And in my years of practice, I had never had that happen.

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And when I saw that, I immediately filed a motion to continue.

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you know, thinking that I would get the motion to continue.

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And when I showed up to the court hearing, after the case had been, the motion to continue had been denied, the judge indicated he did intend to go forward.

[00:01:22] Speaker 00:
On that day, present counsel admitted that he himself made the mistake, not his client, and pled with the court in a 30-day continuance in order to allow my client to have his day in court.

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I believe that should not have been held against my client and that his due process rights would have been violated either if his case was denied, his motion to continue was denied, or if we went forward that day.

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Because in effect, what would have happened if we had gone forward that day, it would have been as though he was unrepresented because he would not have had the opportunity to properly

[00:02:00] Speaker 00:
present his asylum case.

[00:02:03] Speaker 02:
You knew about five or six days before that the motion to continue was denied, so you had some time to prepare your client to testify.

[00:02:14] Speaker 02:
And once the motion to continue was denied, don't you think it would have been reasonable to prepare your client to testify and put him on so you'd at least have some testimony?

[00:02:26] Speaker 00:
My client, Your Honor, lives two hours away from me.

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And in addition to that, as a sole practitioner, in my experience in handling these asylum cases, it takes months to properly prepare an asylum case and be adequately ready to prepare a case and to go forward.

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And I had never requested a continuance in this matter, not once.

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We had never made an attempt to postpone the case.

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Therefore, I had an expectation in speaking to the judge

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that the judge would be reasonable and allow us to move forward with the continuance, even if it was short, so that we could move forward with the case.

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Then when we were present, Your Honor, and he

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the judge went forward and put us to the mat as to whether or not we would go forward or not.

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I felt that it could be highly prejudicial, and we would be almost agreeing to move forward and quite possibly damage my client's case considerably.

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And therefore, we decided not to go forward, not in an effort to abandon our case, but to preserve our rights.

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And then

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In the process, Your Honor, of the continuance or the appeal, my client had criminal counsel in which there was a motion to vacate filed, and that motion to vacate was to address his only conviction that he had from 1985 in which he was convicted.

[00:03:56] Speaker 02:
Right, and that was, so that was, that conviction was vacated.

[00:04:01] Speaker 02:
When did you learn of that?

[00:04:04] Speaker 00:
I learned of that, Your Honor.

[00:04:06] Speaker 00:
I believe it was about December of that year or so, of 2018.

[00:04:16] Speaker 02:
Was the petition for review of the 2015 removal proceedings pending at that point?

[00:04:25] Speaker 00:
Yes, they were, Your Honor.

[00:04:26] Speaker 02:
So why didn't you ask to reopen at that point?

[00:04:31] Speaker 00:
Well, we were, and that's what we were working on, Your Honor, and then we requested documents from counsel, criminal counsel, and along with my assistants, we did subsequently file the first motion to reopen on May 20th of 2019.

[00:04:49] Speaker 00:
And that was the very first time we addressed the issue.

[00:04:53] Speaker 02:
Right, but that's for, so when was his conviction vacated?

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In 2018, right?

[00:05:00] Speaker 00:
His conviction was vacated October 15th of 2018, Your Honor.

[00:05:03] Speaker 02:
So why didn't you go to reopen right away?

[00:05:07] Speaker 00:
Well, as soon as I had the documents, Your Honor, we did try getting the documents during there was interactions through phone, through correspondences as well.

[00:05:18] Speaker 00:
We were trying to obtain the documents and it is true that we did not file this within six months, but we filed it as soon as we could, which was May 20th of 2019.

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The board made its decision on April 24th of 2019

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And we filed it within a month of that decision to ask them to reconsider based on the new facts.

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And then subsequent to their denial of that motion, Your Honor, they indicated that they felt that it was not on point because there was a different A number associated with the case.

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That A number, Your Honor, was from the case of 1987 when he was previously deported.

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And subsequently, we then filed another motion to reopen to try and cover our bases and have that before the court.

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And we made the argument that we would have hoped that the court would have taken judicial notice of that other A number being that this is the same individual that is being on, you know, being who is in deportation proceedings.

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And that's what we're fighting.

[00:06:27] Speaker 03:
My understanding is that you filed that, the reopening of the

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in July of 2022, but the BIA had said you had the wrong A number back in October 2021.

[00:06:41] Speaker 03:
Why did it take almost nine months to file with the right A number?

[00:06:48] Speaker 00:
Um, I don't.

[00:06:51] Speaker 00:
It had to do with the COVID situation at the time and trying to figure out everything logistically in my office, but it was our responsibility, our issue, and our responsibility

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and we filed it in July of 2022 when we thought strategically that that was the right thing to do because we did think we had it before the court based on the original motion to reopen and that all it took was judicial notice of the fact that he had this prior A number.

[00:07:17] Speaker 00:
But then at that point in July, I felt that, you know what, I just need to file this to make sure that I cover all my bases and that's why I filed it in July.

[00:07:25] Speaker 03:
But you knew since the previous October that you had a problem, right?

[00:07:30] Speaker 00:
Yes, but I felt that I could hang my hat on the fact that I actually did file it in May, and I felt that I already had it before the court, and that that should have sufficed.

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But then I had second thoughts about what would be best, and that's when I made the decision to file a second motion with DA number exclusively with the 650, which was a 1987 case.

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And I believe that

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when there is an issue that is at its core a constitutional issue as far as the conviction that there must be a remedy.

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And I felt that I needed to put everything before the court in any way possible at that point in time.

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And that's why we filed the second motion to reopen in July of 2022.

[00:08:17] Speaker 02:
Counsel, have you attempted to mediate this case given that you're

[00:08:26] Speaker 02:
client does not appear to be an enforcement priority, and he's been here since the 1980s.

[00:08:32] Speaker 02:
He has United States citizen children and grandchildren, a U.S.

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citizen spouse, and a U.S.

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citizen mother, and his self-conviction was vacated.

[00:08:43] Speaker 02:
Have you tried to resolve this through other means?

[00:08:48] Speaker 00:
We have, Your Honor.

[00:08:49] Speaker 00:
He also has cancer, has had stomach cancer, been in the hospital.

[00:08:53] Speaker 00:
We have supplied that information to the government, and they've had it for some time, and we did not find a resolution.

[00:09:00] Speaker 02:
Right.

[00:09:00] Speaker 02:
Did you try to use the Ninth Circuit mediators for this, the mediation unit here?

[00:09:07] Speaker 00:
We didn't speak with anyone specifically as far as getting any work done besides the fact of, you know, was there any communication between us?

[00:09:16] Speaker 00:
But there was no other work done besides that.

[00:09:20] Speaker 02:
I don't understand that answer.

[00:09:21] Speaker 02:
Did you consult with the Ninth Circuit Mediation Unit or not?

[00:09:27] Speaker 00:
We were in contact with the Ninth Circuit mediators, Your Honor, but I don't believe that we did much work besides, hey, you know, you guys want to mediate this or not mediate this.

[00:09:36] Speaker 00:
We wanted to mediate this.

[00:09:37] Speaker 00:
I believe the government did not.

[00:09:42] Speaker 02:
Okay.

[00:09:43] Speaker 02:
Are there any further questions?

[00:09:44] Speaker 02:
No.

[00:09:45] Speaker 02:
All right.

[00:09:45] Speaker 02:
Thank you, Council.

[00:09:46] Speaker 02:
We'll hear from the government.

[00:10:09] Speaker 01:
Good morning, Your Honor, and may it please the Court, Margo Carter for the United States Attorney General.

[00:10:15] Speaker 01:
The Court should deny all three consolidated petitions for review in this case.

[00:10:20] Speaker 01:
The agency did not act arbitrarily, irrationally, or in a manner contrary to law when it denied the petitioner's requests in all three of these cases.

[00:10:31] Speaker 01:
If we turn to the first petition for review, the petitioner sought a continuance.

[00:10:36] Speaker 01:
A continuance can be given for good cause shown.

[00:10:40] Speaker 01:
Here, the petitioner and his counsel were served with a notice of hearing after remand by the Board of Immigration Appeals.

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That notice of hearing indicated that there would be an individual hearing upcoming.

[00:10:54] Speaker 01:
For whatever reason, the petitioner did not fully read that notice, or the council did not fully read that notice, and filed a motion to continue about two weeks before the scheduled individual hearing.

[00:11:10] Speaker 01:
At that point, the motion to continue supplied very little information as to why the continuance was necessary.

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apart from the fact that counsel simply did not read the notice of hearing that was presented.

[00:11:31] Speaker 01:
The immigration judge denied that motion to continue on September 21st, 2017.

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At that point, there was still about a week remaining prior to the hearing.

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And not only that, the asylum application in this case had been filed back in March of 2016.

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So to the extent that time would have been required to prepare oneself for testimony regarding a fear of gangs in El Salvador, which is what the basis for this claim was, the petitioner still would have had several days once the immigration judge denied the motion to continue.

[00:12:08] Speaker 01:
Instead of preparing for the hearing, the petitioner and his counsel appeared in court

[00:12:14] Speaker 01:
and indicated that they would renew the motion for a continuance.

[00:12:18] Speaker 01:
There was no further good cause shown for the continuance at that time.

[00:12:23] Speaker 01:
The petitioner did not allege that some religious holiday or something prevented preparation or that he had other casework going on during that time that prevented his ability to prepare.

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nor did he indicate that he had an ill relative or any sort of circumstance that would indicate that there was a good cause for continuing the case.

[00:12:47] Speaker 01:
And so in this case, the immigration judge and later the Board of Immigration Appeals concluded that there was no good cause for a continuance.

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That determination was not arbitrary, it was not irrational, and it wasn't contrary to law.

[00:13:01] Speaker 01:
It was entirely consistent with the board's precedent

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and with the petitioner's indication that the only basis for being unprepared for the hearing was that he did not know that the individual hearing was going to take place.

[00:13:19] Speaker 01:
Turning to the second petition for review.

[00:13:22] Speaker 01:
In the second petition for review, we are talking about a motion to reopen that the petitioner is seeking on the basis of the vacator of a conviction.

[00:13:33] Speaker 01:
That motion to reopen was filed in 2019.

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The conviction was vacated in 2018, as the court noted, October 15, 2018.

[00:13:46] Speaker 01:
The conviction was vacated.

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And the petitioner did not seek a motion to reopen until May of 2019.

[00:13:54] Speaker 01:
Significantly, the

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appeal of the continuance decision was actually still ongoing and pending before the board when that vacator came down, but no attempt was made to notify the board of immigration appeals of the vacator at that time.

[00:14:12] Speaker 01:
In May of 2019, the petitioner filed a motion to reopen.

[00:14:16] Speaker 01:
based on the vacator of conviction, and asked solely for the board to Sue Esponte reopen the case, which the board declined to do.

[00:14:25] Speaker 01:
And the board's decision, again, was neither arbitrary, irrational, nor contrary to law, because in the vacating of that conviction, it had no impact on the subsequent removal proceedings.

[00:14:40] Speaker 01:
Petitioner re-entered the United States illegally after he was deported pursuant to that conviction,

[00:14:47] Speaker 01:
The petitioner re-entered the United States in February of 1989 with no lawful basis for doing so and was separately found removable on the basis of that re-entry.

[00:15:01] Speaker 01:
And nothing about that vacator of the 1985 conviction was going to cure the petitioner's

[00:15:11] Speaker 01:
removal or removal order Which was based on totally separate grounds his entry without inspection in February of 1989 As to the third petition for review that that petitioner filed that Again raises this 2018 vacator of conviction But once again

[00:15:40] Speaker 01:
This motion to reopen was untimely.

[00:15:42] Speaker 01:
I mean, he's seeking to reopen immigration proceedings from 1988, 30 years after his actual deportation.

[00:15:49] Speaker 01:
And it was untimely insofar as it was filed nine months after the prior motion to reopen denial.

[00:15:57] Speaker 01:
And there was no real explanation given for the delay since, once again, this was raising this vacator of conviction.

[00:16:05] Speaker 01:
So the board acting in accordance with its own precedent and with the precedent of the circuit concluded that petitioners motion to reopen was untimely, that he failed to demonstrate due diligence because he didn't really explain this lengthy delay, and that Swiss Bonte reopening was unwarranted.

[00:16:24] Speaker 01:
In short, for all three petitions for review in this case, the board acted in concert with its precedent and with the precedent of the United States Court of Appeals for the Ninth Circuit.

[00:16:35] Speaker 01:
And the court should deny all three petitions for review because the board did not act arbitrarily, irrationally, or in a manner contrary to law.

[00:16:48] Speaker 02:
All right.

[00:16:48] Speaker 02:
Thank you, counsel.

[00:16:49] Speaker 02:
Mr. Morales, I can give a minute.

[00:16:55] Speaker 00:
The only I'd like to point out is that the government never addressed the issue of the issue regarding the asylum case being denied for the motion to continue being denied and

[00:17:12] Speaker 00:
I had no idea what their position was going to be on that, and I think they should have briefed the issue or at least addressed it and said that they agreed or concurred.

[00:17:20] Speaker 00:
I think they waived that to some extent or failed to do, you know, to address it at all in their brief.

[00:17:27] Speaker 00:
I think that my client had a right to have his day in court and to be heard for his asylum case and not be affected by his counsel's

[00:17:38] Speaker 00:
deficiencies which were admitted to on the record.

[00:17:41] Speaker 00:
And that is the reason why my client stayed with me.

[00:17:46] Speaker 00:
My client should have his day in court.

[00:17:49] Speaker 00:
He has been in the United States for a very, very long time, has extended family, and would like to have his opportunity and to be heard, especially considering the fact that he's been here for such a long time and has no current criminal history.

[00:18:04] Speaker 00:
Thank you.

[00:18:05] Speaker 02:
Thank you very much, Council.

[00:18:07] Speaker 02:
Enriquez versus Garland will be submitted.