[00:00:01] Speaker 04: We will now hear argument in the final case of the day, which is Karyuki versus Garland. [00:00:20] Speaker 04: I want to say Young John, is that correct? [00:00:23] Speaker 02: Yes, it is, your honor. [00:00:24] Speaker 02: May it please the court, Tom Young John for petitioner, Eunice Karyuki. [00:00:30] Speaker 02: And may it please the court, I would like to turn first to the respondent's brief. [00:00:35] Speaker 02: Respondent state at page 21 of the reply brief, the statute does not articulate what constitutes the requisite extraordinary circumstances necessary to excuse an untimely motion to reopen for a VAWA petition. [00:00:49] Speaker 02: And again, on page 22 of their brief, the respondent quotes Garland versus Alleman-Gonzalez, where Congress includes language in one section of a statute but omits it in another section. [00:01:02] Speaker 02: It is generally presumed that Congress acts intentionally and purposely in the disparate inclusion [00:01:08] Speaker 02: or exclusion. [00:01:10] Speaker 02: And finally, on page 25 of the respondent's brief, respondent states, no statutory provision specifies what circumstances might be sufficiently extraordinary to excuse an untimely VAWA motion to reopen. [00:01:24] Speaker 04: Council, why does your challenge, the BIA's decision, raise a question of law? [00:01:34] Speaker 02: Question of law. [00:01:38] Speaker 02: There is a constitutional question here. [00:01:42] Speaker 02: The petitioner's due process rights, which include all of her fundamental rights under the Bill of Rights, have been limited and the government has not shown a compelling or overriding interest. [00:01:54] Speaker 02: Specifically, the respondent's right to petition for a redress of grievances under the First Amendment and under the Fifth Amendment has been limited by the board failing to reveal the actual basis for its failure to find extraordinary circumstances sufficient to waive the one-year filing deadline for her VAWA motion to reopen. [00:02:13] Speaker 02: Accordingly, the case should be remanded to the Board of Immigration Appeals. [00:02:16] Speaker 04: Let's assume, arguing though you're right about that, does Ikemian remain good law post-Wilkinson? [00:02:25] Speaker 02: I believe that's how you pronounce that. [00:02:30] Speaker 04: I don't know. [00:02:32] Speaker 04: That's my best effort. [00:02:33] Speaker 02: Well, it relied on Chevron deference. [00:02:39] Speaker 02: Chevron's gone. [00:02:40] Speaker 02: There are six cases that the respondent's brief relied upon that relied on Chevron deference. [00:02:50] Speaker 02: What do we do with that now? [00:02:52] Speaker 04: Chevron is theoretically gone. [00:02:56] Speaker 04: What do we do with cases that rely on Chevron deference? [00:03:02] Speaker 02: Look at them carefully, Your Honor. [00:03:04] Speaker 02: What does that mean? [00:03:11] Speaker 02: I would say that that makes the respondent's brief weaker, the fact that they relied on six cases that relied on Chevron deference. [00:03:25] Speaker 04: Okay. [00:03:26] Speaker 04: I guess what I struggle with is this. [00:03:28] Speaker 04: Assuming that the extraordinary circumstances argument you're making is correct, say we agree with it, I still am struggling with how, given Akeemian [00:03:41] Speaker 04: Post Wilkinson, that you still have a case. [00:03:45] Speaker 04: Help me with that. [00:03:46] Speaker 04: What am I missing? [00:03:54] Speaker 04: In other words, we can review, we have jurisdiction to review extraordinary circumstances. [00:03:59] Speaker 04: Arguendo. [00:04:00] Speaker 04: Even so, how do you win your case, given Akeemian? [00:04:06] Speaker 02: Well, Your Honor, Akeemian relied on Chevron. [00:04:12] Speaker 02: With respect, Ms. [00:04:14] Speaker 02: Karaoke stated in her affidavit attached to her motion to reopen that I fear for my life in Kenya. [00:04:20] Speaker 02: The BIA made no mention, however, of Ms. [00:04:23] Speaker 02: Karaoke's fear for her life in Kenya in its November 14th, 2023 order. [00:04:27] Speaker 02: Why? [00:04:28] Speaker 02: The BIA, in deciding that extraordinary circumstances did not exist, specifically ignored Ms. [00:04:34] Speaker 02: Karaoke's statement that she was afraid for her life in Kenya. [00:04:37] Speaker 02: This fear was also mentioned in the motion to reopen. [00:04:44] Speaker 03: So counsel, to follow up on Judge Smith's questions, assuming we have jurisdiction and we look at this case and we try to figure out, is this extraordinary circumstances or not? [00:04:55] Speaker 03: How would you have us write the rule of what counts as extraordinary circumstances? [00:04:59] Speaker 03: What's good enough? [00:05:05] Speaker 02: Fear for one's life if one is removed from the United States. [00:05:09] Speaker 03: Isn't that sort of always present in cases where people are seeking relief from removal? [00:05:14] Speaker 03: because they have to show persecution. [00:05:17] Speaker 03: But this is a VAWA case, so it is not actually... Right, but it's to reopen removal proceedings to see if she can qualify for relief. [00:05:29] Speaker 02: VAWA relief, she could adjust status. [00:05:32] Speaker 01: Her petition is untimely, right? [00:05:36] Speaker 01: So to excuse that, there's this other standard now, extraordinary circumstances. [00:05:40] Speaker 01: So it doesn't seem that it could just be the same reasons that would underlie any petition seeking some form of relief. [00:05:49] Speaker 01: Now you're untimely, so you have to show something more. [00:05:52] Speaker 01: So what is it that goes beyond [00:05:55] Speaker 01: you know, her claim of fear of persecution, asylum, you know, all of those sorts of things. [00:05:59] Speaker 01: And now she wants relief under the VAWA. [00:06:05] Speaker 02: The Board of Immigration Appeals abused its discretion by not actually stating the reason why it did not find extraordinary circumstances. [00:06:16] Speaker 02: So effectively, I'm not asking for the court to define what are extraordinary circumstances. [00:06:23] Speaker 02: I'm asking for the court to recognize that the Board of Immigration Appeals actually did rely upon a preceding finding of credibility and didn't mention it in their order. [00:06:38] Speaker 02: And they should have. [00:06:40] Speaker 02: And that was an abuse of discretion. [00:06:43] Speaker 03: I don't understand why that matters. [00:06:49] Speaker 02: If that was the reason they made their decision and they didn't state that in their decision, I'd say that matters. [00:07:02] Speaker 02: Now the court lacks jurisdiction to review the BIA's decision not to invoke its sua sponte authority to reopen proceedings under CFR section, or 8 CFR section 1003.2A. [00:07:19] Speaker 04: And that, again, you agree that we don't have authority to review the BIA's decision to not invoke suespante this decision. [00:07:32] Speaker 02: However, in Akimian, [00:07:37] Speaker 02: Since you've mentioned it before, it's appropriate for me to bring up. [00:07:40] Speaker 02: In a Kenyan, however you pronounce that, the court has jurisdiction to review board decisions denying suespante reopening for the limited purpose of reviewing the reasoning behind the decision for legal or constitutional error. [00:07:54] Speaker 02: If upon exercise of its jurisdiction, this court concludes that the board relied on an incorrect legal premise, it should remand to the BIA so that it should exercise its authority against the correct legal background. [00:08:08] Speaker 02: Once it does so, this court will have no jurisdiction to review the Suez-Sponte decision. [00:08:13] Speaker 02: It didn't mention that the basic reason [00:08:18] Speaker 02: why it didn't find extraordinary circumstances. [00:08:21] Speaker 02: And there is apparently no, I mean, according to the respondent's brief, there is not a standard that's set out there. [00:08:31] Speaker 02: Conrad? [00:08:32] Speaker 04: I guess what I struggle with is that the challenge brought on the suespante issue is the same, you make the same allegations as you do for the extraordinary circumstances argument. [00:08:48] Speaker 04: And under Akemi and Bonilla, I don't see we have jurisdiction to review that aspect of it. [00:08:56] Speaker 04: Isn't that correct? [00:08:58] Speaker 02: I don't believe so, Your Honor. [00:08:59] Speaker 04: Because? [00:09:00] Speaker 02: Because the Board of Immigration Appeals error was actually relying on something and it didn't mention it in its decision. [00:09:14] Speaker 04: In fact, as you know, [00:09:17] Speaker 04: BAA is not required to recite and hike verbiage everything that your client alleges. [00:09:24] Speaker 04: Sometimes they'll adopt issues already decided by the IJ. [00:09:28] Speaker 04: Sometimes they don't mention it at all, but our case law is pretty clear that we assume review. [00:09:35] Speaker 04: So why is what you're talking about so important in this case? [00:09:41] Speaker 04: Why do they have to mention that? [00:09:42] Speaker 02: Again, the petitioner [00:09:45] Speaker 02: Feared for her life to return. [00:09:47] Speaker 04: As mentioned in the motion to reopen. [00:09:48] Speaker 04: That was all considered by the IJ. [00:09:50] Speaker 04: The BIA had that record before it. [00:09:54] Speaker 04: What more has to happen? [00:09:59] Speaker 02: The fact that they didn't mention the reason why they didn't find extraordinary circumstances is abuse of discretion. [00:10:09] Speaker 02: And they should have mentioned it. [00:10:11] Speaker 02: Had they mentioned it, there would have been some basis. [00:10:16] Speaker 02: Perhaps, you know, this court would not have jurisdiction, but they didn't mention it. [00:10:22] Speaker 01: They said, I'm looking at the BIA orders, the order right now. [00:10:26] Speaker 01: So it's that the administration record page four, and in the paragraph talking about the motion being time barred, [00:10:36] Speaker 01: The BIA says she has not shown extraordinary circumstances. [00:10:40] Speaker 01: And then they go on and say, we've considered the respondent's contentions regarding extraordinary, okay, she didn't make them. [00:10:47] Speaker 01: While we acknowledge that the execution of removal order in this matter would likely lead to some hardship, the circumstances presented, potential becoming eligible for relief after the entry of a final order of removal, are not extraordinary. [00:11:01] Speaker 01: That seems like a pretty clear explanation, that you've made this argument you're going to suffer persecution, you fear for your life in Kenya, and the BIA saying your circumstances that you would qualify for a final order of removal are not extraordinary. [00:11:14] Speaker 01: So do you think they had to say more? [00:11:16] Speaker 02: I don't think that they were considering the previous decision that they'd made, and I don't think that they were relying upon the prior case [00:11:30] Speaker 02: of asylum case that the respondent had been making. [00:11:38] Speaker 03: I thought your argument was that they were relying on the prior decision and just not saying so. [00:11:53] Speaker 02: I'm sorry, Your Honor. [00:11:55] Speaker 02: There's like two questions here, but they intermesh. [00:12:00] Speaker 02: I don't believe that they were referring to her past asylum case in saying that she didn't have extraordinary circumstances for the first question, but with respect to the second question, I do believe that they intentionally did not mention [00:12:29] Speaker 02: the asylum case and the finding that she was incredible that they actually didn't address that specifically for that reason. [00:12:45] Speaker 02: They knew that she'd been found incredible twice. [00:12:49] Speaker 02: They supported that decision previously. [00:12:54] Speaker 02: And since they'd already decided that, [00:12:59] Speaker 02: They didn't have to pay any attention to the fact that both in her affidavit and in the motion to reopen itself, that she indicated that she was afraid to return to Kenya. [00:13:10] Speaker 04: You want to save any of your time for rebuttal counsel? [00:13:12] Speaker 04: Yes, your honor. [00:13:14] Speaker 04: All right. [00:13:14] Speaker 04: Let's hear from the government, Ms. [00:13:16] Speaker 04: Shea, please. [00:13:32] Speaker 00: May it please the court. [00:13:33] Speaker 00: My name is Jacqueline Che for the Attorney General of the United States. [00:13:37] Speaker 00: The statutory provision at issue in this case provides that the attorney general may comma in the attorney general's discretion waive the one year statutory deadline. [00:13:51] Speaker 00: Petitioner here does not dispute that the motion to reopen was untimely. [00:13:55] Speaker 00: She instead urged in her in the motion to reopen to the board [00:13:59] Speaker 00: that the board should waive that requirement based on extraordinary circumstances. [00:14:04] Speaker 00: The board here declined to exercise its discretion to waive that one-year deadline. [00:14:10] Speaker 00: I ask this court to come to the following two conclusions. [00:14:14] Speaker 00: One, the board's decision not to waive the one-year filing deadline for this motion to reopen is discretionary matter that is not reviewable, and the limited review bar provision does not restore any jurisdiction. [00:14:29] Speaker 00: And two, petitioner's petition raises no other colorable legal or constitutional claims. [00:14:37] Speaker 00: Your honors, the plain language, statutory provision at issue is clear. [00:14:42] Speaker 00: Congress intended to preclude judicial review. [00:14:48] Speaker 00: The Congress stripped the courts of jurisdiction in two separate categories of removal orders, the discretionary review bar. [00:14:55] Speaker 03: Well, counsel, I think you had a really good argument before Wilkinson. [00:14:59] Speaker 03: How does Wilkinson fit with what you're arguing to us today? [00:15:03] Speaker 03: Because as I see it, the provision in Wilkinson, though different, is very, very similar. [00:15:07] Speaker 03: And they said in that case, it's a mixed question, and therefore it's a legal question we review. [00:15:12] Speaker 03: And we have to decide whether there was error or not in assessing extraordinary circumstances, and then we don't assess the government's actual exercise of discretion to grant relief or not. [00:15:27] Speaker 00: Your Honor, our argument is consistent with Wilkinson, and for these reasons. [00:15:32] Speaker 00: In Wilkinson, they first started the position that exceptional and usual hardships was not discretionary. [00:15:40] Speaker 00: And it assumed that the presumption of reviewability in immigration [00:15:44] Speaker 00: cases applies. [00:15:46] Speaker 00: Then after that step, it looked directly to the statutory text to rebut that presumption. [00:15:53] Speaker 00: In finding nothing, the statutory text at issue, it found that it was a legal standard that must be applied. [00:16:01] Speaker 00: In contrast here, and in fact in Wilkinson, it gave two separate examples of statutory text that would have indicated discretion. [00:16:10] Speaker 00: And it was at 224 in the decision. [00:16:14] Speaker 00: The examples of statutory language that shows discretion, it gave us example, was to the satisfaction of the attorney general and additionally in the opinion of the attorney general. [00:16:25] Speaker 00: And if the predicate statute in that case was the suspension statute, which the government kind of raised as an issue at 224, their argument, that statute had language in the opinion of the attorney general. [00:16:40] Speaker 00: If that same statute was before the court, the decision in Wilkinson would have been differently, because that was discretionary language. [00:16:49] Speaker 03: Is your view of the statute that we're looking at in this case, 1229 AAC, et cetera, that the government has the option to grant leave from the one-year requirement even absent a finding of extraordinary circumstances? [00:17:09] Speaker 00: Yes, Your Honor. [00:17:09] Speaker 03: So we have two things. [00:17:12] Speaker 03: Oh, you have further questions? [00:17:13] Speaker 00: Sorry, Your Honor. [00:17:13] Speaker 00: I don't mean to interrupt you. [00:17:14] Speaker 03: Okay. [00:17:14] Speaker 03: So the government could look at a situation and say, don't know if there are extraordinary circumstances here or not, but we just decide as a matter of discretion to not enforce the one-year filing deadline. [00:17:25] Speaker 03: That's okay. [00:17:26] Speaker 00: Yes, Your Honor. [00:17:26] Speaker 00: There is some flexibility. [00:17:27] Speaker 00: And I think looking again at the statutory text, we have the Attorney General may, comma, in the attorney's general discretion, comma, waive. [00:17:37] Speaker 00: So we have a statutory word, may, which is [00:17:40] Speaker 00: permissive. [00:17:41] Speaker 03: Additionally, the phrase. [00:17:43] Speaker 03: There's an if clause there. [00:17:45] Speaker 03: Wave if there's a showing. [00:17:50] Speaker 03: I'll pull up the statute. [00:17:51] Speaker 03: I think you might be simplifying that beyond what [00:17:56] Speaker 00: Your Honor, as you brought up in his argument, we have the Kukana decision in this case, a discretionary bar case, which specifically in a footnote, footnote 10, noted that this exact provision is something that is a statutory provision which gives the Attorney General discretion to waive the statute's time limitations. [00:18:20] Speaker 00: Again, your question previously, Your Honor, it has not been overruled. [00:18:25] Speaker 00: That's a Supreme Court decision. [00:18:26] Speaker 00: And that decision, Kusana, was also mentioned in Patel. [00:18:31] Speaker 00: I was trying to scan the Wilkinson decision and see if it was cited in there, and I didn't see that. [00:18:35] Speaker 00: But obviously, Wilkinson went into Patel and Goswala plus Spears at length in that decision. [00:18:42] Speaker 04: Let's just take a hypothetical here. [00:18:43] Speaker 04: Let's assume for a moment that we do have jurisdiction [00:18:47] Speaker 04: to the review of the BIA's extraordinary circumstances determination. [00:18:52] Speaker 04: What's the government's argument that the BIA did not apply the wrong legal standard? [00:19:00] Speaker 00: Your Honor, I think the only question that was potentially raised was in their brief was that a certain sentence was not mentioned in the board's decision. [00:19:10] Speaker 04: And the government's response to that is what? [00:19:13] Speaker 00: I think, Your Honor, as you brought it up, in the board's decision itself here, it's clear that that particular sentence was actually considered by the board when the board cited those pages. [00:19:26] Speaker 00: But I think it's actually out of context as well, plucking that one sentence. [00:19:31] Speaker 00: Because when you review the motion to reopen in this case, it's clear because there's a hyphen actually when she explains in the motion to reopen about what is the extraordinary circumstances. [00:19:42] Speaker 00: And the hyphen right after says specifically the relief itself. [00:19:46] Speaker 00: And that's why the board gave that rationale, Your Honors, in this decision that just showing you're eligible for the [00:19:55] Speaker 00: Violence Against Women Act relief is not sufficient to meet the standard of extraordinary circumstances. [00:20:02] Speaker 00: But Your Honor, unfeathered discretion is the government's argument, is what is given here. [00:20:07] Speaker 00: The court does not have to reach that question, Your Honor. [00:20:11] Speaker 00: I'm just explaining it. [00:20:12] Speaker 03: Okay, so then how do you deal? [00:20:13] Speaker 03: I'm going to come back to what I was surprised by your answer, because as I read the provision at issue, it says, lists all the requirements for reopening. [00:20:24] Speaker 03: and then says, if the motion to reopen is filed within one year, you're good. [00:20:31] Speaker 03: And then we have this clause that you keep referencing, except that the attorney general may, in the attorney general's discretion, waive this time limitation in the case of an alien who demonstrates extraordinary circumstances. [00:20:44] Speaker 03: Isn't that a predicate? [00:20:47] Speaker 00: You have to look, Your Honor, again, at the entire context of the sentence. [00:20:50] Speaker 00: And the fact that that discretionary language is clear before the decision of whether the attorney general can waive, the attorney general is given the option of whether to waive at all. [00:21:02] Speaker 00: And I think, Your Honor, looking at the context, the surrounding words and provisions of the INA and the statutory context here, we're in the statutory itself. [00:21:10] Speaker 00: We're looking at, you know, motion to reopen, general motion to reopen, you get a 90 days. [00:21:15] Speaker 00: If you're in absentia, motion to reopen, it provides that you get 180 days for the time. [00:21:21] Speaker 00: Here, we get obviously one year. [00:21:23] Speaker 00: And then I think it provides the Attorney General some flexibility to waive that one year in his full, unfeathered discretion based on different timelines and what comes up in this circumstance. [00:21:38] Speaker 00: looking again at the context here, the similar term, exceptional circumstances, that is actually defined in this section of the statute as well. [00:21:50] Speaker 00: So the absence of actually specifically defining extraordinary circumstances in this context also supports that this is a discretionary determination. [00:22:04] Speaker 00: So Your Honors, we have clear statutory text here. [00:22:07] Speaker 00: We have a word, may, which implies the decision is permissive. [00:22:11] Speaker 00: Additionally, we have the phrase in the attorney general's discretion. [00:22:15] Speaker 00: Both those things make that statutory text plain and clear. [00:22:20] Speaker 00: Additionally, we have precedent. [00:22:22] Speaker 00: We have the Supreme Court's Kusana decision, a discretionary bar case. [00:22:27] Speaker 00: And that noted specifically that this provision at issue gives the attorney general [00:22:33] Speaker 00: discretion to waive the statute's time limitations. [00:22:37] Speaker 00: Additionally, to that Supreme Court decision, we have the majority of the circuits have interpreted the statutory provision, with the exception of the Fifth Circuit, have interpreted all the same way. [00:22:48] Speaker 00: It is an exercise of discretion committed by statute to the Attorney General to waive this period. [00:22:54] Speaker 04: Why isn't the Fifth Circuit's analysis the better analysis in this case? [00:23:05] Speaker 00: Well, Your Honor, the rationale, Your Honor, in the Pena v. Lopez, that's the Fifth Circuit case in this case, the rationale missed the mark. [00:23:14] Speaker 00: And it really failed to acknowledge the explicit delegation of discretionary language present in this reopening statute that was missing in that cancellation or removal statute. [00:23:26] Speaker 04: But in line of Wilkinson, why isn't the Fifth Circuit the better approach? [00:23:30] Speaker 04: The others seem to be a little at a different time period, right? [00:23:35] Speaker 00: Yes sir. [00:23:35] Speaker 00: They were all pre Wilkinson. [00:23:37] Speaker 00: Right. [00:23:37] Speaker 04: Wilkinson changes the game does it not. [00:23:41] Speaker 00: Well again I think it is consistent. [00:23:43] Speaker 00: OK. [00:23:44] Speaker 00: And the reason being when you look at the framework of what Wilkinson applied it looking at Patel it followed the same framework. [00:23:51] Speaker 00: So in Patel [00:23:53] Speaker 00: Basically, it looked at the statutory text. [00:23:55] Speaker 00: And because the statutory lex in Patel was clear, as well as the context, it had both of those things, the presumption of reviewability was not applicable. [00:24:08] Speaker 00: Okay. [00:24:09] Speaker 00: And then in Wilkinson, it follows the same exact framework and basically it looks to the statutory text. [00:24:16] Speaker 00: And, you know, it did nothing. [00:24:18] Speaker 00: It said again that factual Patel, obviously factual questions do not fall within the limited review provision. [00:24:26] Speaker 00: And it also gave specific discretionary language of what would also be excluded. [00:24:32] Speaker 00: Similar to this case, not the same language, but it gave, you know, in the attorney general's [00:24:36] Speaker 00: in the opinion of the Attorney General to the satisfaction of the Attorney General, it gave those examples. [00:24:41] Speaker 00: Those examples are very, very similar to what we have here, the Attorney General may. [00:24:46] Speaker 00: And again, we have another Supreme Court decision that was not overruled, that specifically said that this statutory provision is discretionary. [00:24:56] Speaker 00: And I think it's even more honed in the point that, you know, when you look at 224 of that Wilkinson decision, you know, [00:25:04] Speaker 00: It was pointing in, the government argued that the statute right before to basically use that discretionary language and put it back into this, and it was rejected by the court because the statutory language changed. [00:25:17] Speaker 00: We no longer have the suspension statute at issue, but if that predicate suspension statute was at issue, [00:25:25] Speaker 00: the Wilkinson's decision would be different. [00:25:27] Speaker 00: Again, in contrast here, Your Honors, the clear textual evidence of discretion that overcomes the presumption is something that was lacking in Gosuelo of Oceira and in Wilkinson. [00:25:41] Speaker 00: And similarly, it makes sense. [00:25:44] Speaker 00: A statute like here that confers pure discretion to the attorney general should be insulated from both bars. [00:25:52] Speaker 00: It should be insulated from the discretionary review bar, as well it should be insulated from the limit of review provision as Patel in that case. [00:26:03] Speaker 04: But didn't the Supreme Court, though, in Wilkinson and Guerrero-Lasprilla deal with a discretionary issue as well and conclude [00:26:13] Speaker 04: that you could review issues involving undisputed facts where there is a legal standard involved. [00:26:23] Speaker 04: So if that's the case, when we've long understood that we're pure discretion before Wilkinson, we don't have a jurisdiction, but it seems like Wilkinson changed the game. [00:26:35] Speaker 04: And I'm not hearing anything from you that leads me to believe it's to the contrary. [00:26:40] Speaker 04: More I understand the government's sort of kind of argument is, [00:26:44] Speaker 04: Yeah, maybe you got it, but then afterwards you apply the discretionary standard on whether the court, whether the BIA actually acted and they still lose. [00:26:53] Speaker 04: Is that basically where you are? [00:26:56] Speaker 00: Your Honor, I think Wilkinson really provided the framework of when you have that case where you have a question of law and it's kind of a question blurred with the discretionary question. [00:27:08] Speaker 00: And I think here it is not blurred because we have clear language of discretion here. [00:27:17] Speaker 00: And I think the framework has stayed the same. [00:27:20] Speaker 00: I think you can read all of those decisions to support what you have here. [00:27:28] Speaker 00: I don't think the court has to get to the question of whether extraordinary circumstances is a legal question because of the statutory plain language before giving [00:27:38] Speaker 00: that unfeathered discretion to make that decision, whether or not to waive or not. [00:27:42] Speaker 00: But even if this court does, for some reason, go that route, we have no standards here for this extraordinary circumstance of term. [00:27:51] Speaker 00: As you can see, it was specifically defined exceptional circumstances in that same statutory provision. [00:27:57] Speaker 00: It's not defined here. [00:27:58] Speaker 00: And so I just... [00:28:06] Speaker 00: And I think, Your Honor, we do have the panel decision in this case that it would not be binding on this court, but the carnitas decision, Your Honors. [00:28:16] Speaker 00: And in that case, that was another Pree Wilkinson case, and there was really no explanation or wrestling with the Curcana decision in that case. [00:28:27] Speaker 00: And it did just focus on that language there. [00:28:31] Speaker 00: I see that my time has expired. [00:28:32] Speaker 04: Your time is up, counsel, so we appreciate your argument. [00:28:34] Speaker 04: Let me ask my colleagues whether either has additional questions. [00:28:37] Speaker 04: I think not. [00:28:38] Speaker 04: So Mr. Young, John, you have some rebuttal time. [00:28:46] Speaker 02: Your Honors, a petitioner believes that you have jurisdiction at least to make the Board of Immigration Appeals specify why it could [00:29:01] Speaker 02: It could focus on only the VAWA relief that was presented and not mention the fact that it was relying on a previous finding of the petitioner incredible. [00:29:22] Speaker 02: Had the BIA explicitly stated that Ms. [00:29:24] Speaker 02: Karyuki's fear for her life in Kenya could be dismissed due to the fact that the immigration judge had previously made an adverse credibility finding, which had not been overcome on appeal, there would be some evidentiary support as to why the BIA failed to find extraordinary circumstances to waive the one-year filing deadline. [00:29:42] Speaker 02: The BIA, however, did not make reference to the previously decided asylum case. [00:29:47] Speaker 02: Did the BIA abuse its discretion in failing to mention the basis for its decision? [00:29:51] Speaker 02: That is the question presented. [00:29:53] Speaker 02: The case should be remanded to the BIA to determine whether Ms. [00:29:57] Speaker 02: Piruki's fear for her life in returning to Kenya or the adverse credibility finding played any role in the BIA's refusal to waive the one-year filing deadline. [00:30:09] Speaker 02: Thank you. [00:30:10] Speaker 04: Very well. [00:30:11] Speaker 04: Thanks to both counsel for your argument. [00:30:14] Speaker 04: The case just argued is submitted and the court stands adjourned for the week.