[00:00:00] Speaker 02:
Proceed with the petitioner, I guess.

[00:00:06] Speaker 00:
Thank you, Your Honor, and good afternoon and may it please the Court.

[00:00:11] Speaker 00:
Peter Afrasiabi from the University of California Irvine School of Law's Appellate Litigation Clinic.

[00:00:18] Speaker 00:
On behalf of Mr. Chanthakong, I will attempt to hold two minutes for rebuttal, and I appreciate your comments.

[00:00:28] Speaker 00:
Your honors, this court should reverse on two bases.

[00:00:32] Speaker 00:
The first being the due diligence issue with respect to extraordinary circumstances, and the second being the underlying legal backdrop and constitutional error that infected the Suez-Fonte analysis.

[00:00:47] Speaker 00:
And so I'll start with the first one.

[00:00:49] Speaker 00:
And here, the narrowest basis for this court to reverse is to hold and find that the BIA ignored the relevant facts in the record and didn't fully address the factual record and arguments that were put to it in terms of explaining the delay from 2017 to 2020.

[00:01:10] Speaker 00:
And the facts are very, very, very important because they explain why there was a delay.

[00:01:16] Speaker 00:
And number one, the fact that was not considered within the calculus of the BIA was that the lawyers that Mr. Kong was finally able to find, these pro bono lawyers who came to visit the Cambodian diaspora in Cambodia after his removal,

[00:01:34] Speaker 00:
said, Yes, you may have a case, but we are confronted by actual restrictions on our funding that deny us the ability to even file a motion for you without.

[00:01:46] Speaker 01:
Do you have any authority?

[00:01:48] Speaker 01:
Um, as I understand your argument, he would have been noticed in 2017 at the at the at the latest.

[00:01:56] Speaker 01:
He would have known that there's a viable issue that he needs to, um, um, confront appeal, but he would have

[00:02:03] Speaker 01:
But is there any case that you can cite as authority that indicates that a lack of financial resources can be a basis for a due diligence problem?

[00:02:21] Speaker 00:
Your Honor, I'm not aware of a case that holds that that fact alone is a basis.

[00:02:27] Speaker 00:
Our argument is, though, that it's not just that he lacked the money.

[00:02:30] Speaker 00:
He tried to find lawyers and couldn't afford them, and that is a fact that should go into the calculus.

[00:02:35] Speaker 00:
But the lawyers he spoke to themselves were precluded from representing him because of their funding, and those lawyers tried to find pro bono lawyers for him and couldn't.

[00:02:44] Speaker 00:
And so what we're saying is, if American lawyers with access, as we all have through the bar to legal channels to try to find counsel to help people when they call, if they couldn't find counsel, how fairly could we expect a man in Cambodia who's not a lawyer to have found a lawyer?

[00:02:59] Speaker 00:
And that fact had to be considered by the BIA and its calculus.

[00:03:03] Speaker 03:
And those facts were not considered, because what they're describing is- May I interrupt just a second?

[00:03:08] Speaker 03:
Mr. Afrasebi, Mr. Kong testified that prior to going to the Asian Law Caucus, he had talked to other attorneys and they told him one of two things, either you have no hope

[00:03:28] Speaker 03:
or we can't take the case without a retainer up front of several thousand dollars.

[00:03:35] Speaker 03:
Was there any evidence that when he was told by the Asian Law Caucus that he had hope he had a case, but they couldn't do it because of financial restrictions in 2017, that he went back to any of the attorneys who had told him they couldn't handle the case because he had no hope?

[00:04:00] Speaker 00:
Your honor, that question is not answered by the record, but implicitly, I think the paragraph 25 on page 124 that you're referring to, I think implicitly the answer is no, because I don't think that that paragraph 25 of his declaration

[00:04:17] Speaker 00:
It doesn't say that the facts in that paragraph ended before 2017 when he spoke to the law group that came.

[00:04:27] Speaker 00:
Structurally, one may think that's the case because the paragraphs go chronologically, but I do think implicitly, or expressly it doesn't say it, so I think implicitly

[00:04:36] Speaker 00:
his point is he could never find a lawyer anytime in cambodia whether before twenty seventeen or after he could never find a lawyer to take the case and of course directly those lawyers who originally told him no we don't have anything in the record on that but i would argue that this case is

[00:04:53] Speaker 00:
the court should look to sort of two bookend cases.

[00:04:56] Speaker 00:
You have Mejia Hernandez and Bonilla, which are both kind of interesting cases on this narrow spectrum of a person who has a lawyer and waits to file a case.

[00:05:05] Speaker 00:
And Mejia Hernandez, it was a multi, multi-year delay, and that was okay because he relied on who he thought was his lawyer.

[00:05:11] Speaker 03:
Next question.

[00:05:12] Speaker 03:
Is there any reason why he didn't file pro se in 2017?

[00:05:18] Speaker 00:
The record doesn't answer it, but I will say unequivocally, as is the case with many people in this situation, you only get one motion.

[00:05:26] Speaker 00:
If you file pro se when you're talking to a lawyer and you just go pro se and file, you make a mistake, you're done because of the one and done rule.

[00:05:33] Speaker 00:
And so it's immensely dangerous to ever take that risk for any petitioner.

[00:05:38] Speaker 00:
And so here he knew, okay, I have lawyers who say they can do something.

[00:05:42] Speaker 00:
I have one shot to try to come back to America.

[00:05:46] Speaker 00:
I think the only inference from the record is that he waited desperately, which is why he kept checking in with them to see, are you able to, do you have funding restrictions lifted and whatnot?

[00:05:54] Speaker 00:
And that's why, Your Honor.

[00:05:55] Speaker 03:
Next question.

[00:05:56] Speaker 03:
Isn't your argument, doesn't that assume that there is a constitutional right to a lawyer or a statutory right to a lawyer that tolls the running of the statute of limitations of 90 days?

[00:06:12] Speaker 00:
No, I don't think I'm assuming that one has either a statutory or constitutional right to counsel.

[00:06:18] Speaker 00:
The tolling I think exists by virtue of the fact that once you have a lawyer, lawyers themselves can be inundated with matters that can justify a delay.

[00:06:27] Speaker 00:
And so his ability to rely on the lawyer and what the lawyers were doing, inures to his benefit and he has the right to have that delay.

[00:06:34] Speaker 00:
And that's why sort of Mejia Hernandez is on one end and Bonilla is on the other.

[00:06:38] Speaker 00:
And I think if you look at Bonilla, you see someone who randomly spoke to a lawyer who said, I don't know, filed a few years, he waited several years, filed and the court said, look, that's not good enough.

[00:06:47] Speaker 00:
And that's why we're saying we are like Mejia Hernandez.

[00:06:50] Speaker 00:
And I would say it's particularly important

[00:06:52] Speaker 00:
to the overlay to all of this, Your Honors, is really what the Fifth Circuit said in Lugo Rosendez, which is, remember, we're dealing with a green card holder, an LPR, who would otherwise not be removable.

[00:07:04] Speaker 00:
The NTA only charged him with removability because of the California communal code.

[00:07:09] Speaker 02:
Council, I have some questions.

[00:07:11] Speaker 02:
If I could interject, please.

[00:07:13] Speaker 02:
First of all, I have a question of law.

[00:07:21] Speaker 02:
Who has the burden of proof here?

[00:07:23] Speaker 02:
Does the government have the burden to show that he was not diligent?

[00:07:34] Speaker 02:
Or rather, does your client have the burden to show that he was diligent?

[00:07:42] Speaker 00:
I believe the burden is on the moving party to come forward with a prima facie case of diligence.

[00:07:49] Speaker 00:
But I do think that once you've made out that case, the burden would shift to the government to actually marshal some sort of factual record to say, hold on, that isn't it.

[00:07:57] Speaker 00:
Either you lack credibility, there are other facts that we found in our investigation.

[00:08:02] Speaker 00:
And if they choose not to do that, I think if one has to start discharge their initial burden to explain the delay, then especially here where there was no adverse credibility finding made, these facts have to be taken as credible and true.

[00:08:14] Speaker 00:
And I think the inferences have to be seen in the light most favorable

[00:08:17] Speaker 02:
I have a follow-up question on that.

[00:08:21] Speaker 02:
As I read it, the BIA said that after he knew the basis for his claim, three years passed by and he did not take any action.

[00:08:38] Speaker 02:
Is that what the record shows or did he take any action?

[00:08:42] Speaker 02:
The record?

[00:08:44] Speaker 00:
Yes, the record does show that he did take action because he did more than just checking in with the lawyers to establish diligence.

[00:08:51] Speaker 00:
The lawyers themselves tried to find pro bono lawyers or nonprofits to help him and they couldn't.

[00:08:58] Speaker 00:
And those facts are really important.

[00:08:59] Speaker 00:
If one is going to be looking at this fact intensive case specific

[00:09:03] Speaker 00:
inquiry, which this court's case law holds, to really get to the bottom of who did what when.

[00:09:08] Speaker 00:
And so when the BIA said all he did was check in once a month as if it was just a cursory phone call, that's not accurate on the record.

[00:09:14] Speaker 00:
And that's why we submit the case has to be reversed at a minimum on that date.

[00:09:19] Speaker 02:
So I have one final question.

[00:09:22] Speaker 02:
What does the record show with regard to why does the police bound the gun on him?

[00:09:33] Speaker 02:
Now I know he said that he was with other guys and someone went into a store and asked him to hold, to hold a gun for them while he was in the store.

[00:09:49] Speaker 02:
But how is it the police at that point apprehend him for being a felon in position of a firearm?

[00:10:01] Speaker 00:
unfortunately on the record is is thin, but a paragraph 13 of his declaration on page 122, he talks about sort of basically the underlying facts of what happened, which is it was rated.

[00:10:14] Speaker 00:
He had it for safekeeping.

[00:10:15] Speaker 00:
And so he said he admitted to the officers that he had it, but he didn't tell them it wasn't his.

[00:10:21] Speaker 00:
And so that's sort of all we really have in this record, unfortunately.

[00:10:25] Speaker 02:
He did not tell the officers the gun wasn't his?

[00:10:33] Speaker 00:
Yes, well what he said in his declaration is that he didn't explain that it wasn't his.

[00:10:38] Speaker 00:
He didn't want to get his brother in trouble and so as a result he got charged and so he then pled guilty.

[00:10:44] Speaker 02:
Oh I see.

[00:10:45] Speaker 00:
Yes.

[00:10:46] Speaker 02:
Okay thank you.

[00:10:47] Speaker 02:
Well your time is basically up.

[00:10:49] Speaker 02:
Yes.

[00:10:50] Speaker 02:
The clock is showing time beyond your 11 minutes but

[00:10:55] Speaker 02:
For your planning purposes, I'm going to give you two minutes for rebuttal.

[00:11:01] Speaker 00:
Thank you very much, Your Honor.

[00:11:02] Speaker 02:
Okay, Your Honor.

[00:11:04] Speaker 02:
And now we'll hear from the government as appellee.

[00:11:10] Speaker 04:
May it please the court.

[00:11:11] Speaker 04:
My name is Neelam Isanullah and I represent the U.S.

[00:11:14] Speaker 04:
Attorney General in this matter.

[00:11:16] Speaker 04:
The court should deny the petition for review in part with regards to petitioner's equitable tolling claim, and it should dismiss in part the petition for review with regards to petitioner's claim for Sue Esponte reopening relief.

[00:11:33] Speaker 04:
With regards to equitable tolling, the agency properly found that petitioner did not demonstrate the requisite due diligence.

[00:11:40] Speaker 04:
And filing his motion to reopen more than two and a half years after he became aware of the basis.

[00:11:46] Speaker 01:
What about what about counsels his argument that he did he was diligent and trying to find an attorney ultimately found an attorney found a group of attorneys who were able to take his case in fact.

[00:11:57] Speaker 01:
Why couldn't it be said that he relied on that, similar to the Mejia Hernandez case, he relied on the advice of those attorneys in believing that they were going to help him out with regards to that petition to reopen?

[00:12:17] Speaker 04:
So I would distinguish Mejia Hernandez because there the notario was pretending to be an attorney, and he had actually achieved some success in representing

[00:12:27] Speaker 04:
on petitioner's wife.

[00:12:29] Speaker 04:
And so petitioner had every reason to believe that he was being successfully represented by this notario.

[00:12:35] Speaker 04:
And so I think that played a great part into why the court found that petitioner had been diligent there.

[00:12:41] Speaker 04:
In this case though, if we look at Mr. Prasad, Anup Prasad's declaration, he talks about the fact that when he informed Mr. Kong about the fact that he did now have a basis for reopening under Aguilera Rios,

[00:12:55] Speaker 04:
and Mr. Kong informed him that he did not have enough money to hire an attorney, Mr. Prasad at the same time told Mr. Kong that Asian Law Caucus' funding was restricted and would not allow them to file a motion to reopen at that time.

[00:13:12] Speaker 04:
And so it was clearly delivered to Mr. Kong that he did not have the benefit of Asian Law Caucus and their assistance when it came to actually filing the motion to reopen.

[00:13:24] Speaker 04:
although they had assisted him with regards to this Freedom of Information Act and obtaining his criminal records.

[00:13:30] Speaker 04:
And Mr. Kong must have been alerted as well by the fact that the Agent Law Caucus attorney was doing a great service to him by trying to find counsel on his behalf.

[00:13:42] Speaker 01:
Counsel, I'm reading that declaration.

[00:13:46] Speaker 01:
And does it say that they informed him that he did not have

[00:13:52] Speaker 01:
that they were not going to go forward with it, or does it just say that they didn't have the funds for it?

[00:13:59] Speaker 04:
It says, at the same time, restricted funding prevented us from filing Mr. Kong's motion to reopen at that time.

[00:14:08] Speaker 04:
And later on, he said, I simply did not have the resources available to dedicate.

[00:14:13] Speaker 01:
Right.

[00:14:13] Speaker 01:
You said something different, and I just wanted to make sure that I understood the record correctly.

[00:14:19] Speaker 04:
So are you distinguishing between, I think what they were doing there as any attorney worth their salt would, would be alerting him to the fact that they could not file this motion to reopen and he would need to find somebody else.

[00:14:32] Speaker 01:
But is that my question to you then, is that because you said affirmatively that he knew that and you pointed to that declaration and I had read that declaration carefully on that point and I didn't see that, but is there somewhere else in the record that establishes that?

[00:14:49] Speaker 04:
There isn't, but that is, you know, that is, I think, sort of the theme with Mr. Kong's evidence.

[00:14:54] Speaker 04:
He's not very precise when it comes to explaining what he learned and when he learned it from the Asian Law Caucus attorneys.

[00:15:01] Speaker 04:
Even if we look at his declaration, he never provides the occasion where he was told by the attorneys that they couldn't represent him.

[00:15:08] Speaker 04:
We don't know the date.

[00:15:10] Speaker 04:
So this is sort of consistent with the nature of the evidence, but it does seem if Mr. Prasad was looking for attorneys to help Mr. Kong with his motion to reopen, then Mr. Kong also should have been doing some work on his own, just as he had done earlier in his case before the Asian law caucus got involved.

[00:15:33] Speaker 01:
Well, I mean, what do we do with the declaration from the attorney indicating that simply Mr. Kong did everything humanly possible to work to reopen his case in an incredibly difficult circumstance?

[00:15:46] Speaker 04:
I think the Asian Clock Caucus is being quite generous there.

[00:15:49] Speaker 04:
They knew that he had done a lot in the early part of his case, but for some reason it does seem that Mr. Kong dropped the ball, and I don't know why.

[00:15:57] Speaker 04:
But it is significant because if we look at the case law like Raspberry versus Garcia, which is cited in the agency decision, the board's decision being pro se and ignorant of the law, it's not an extraordinary circumstance that justifies or warrants equitable tolling.

[00:16:13] Speaker 04:
And that seems to be maybe the problem here in this case.

[00:16:16] Speaker 04:
Mr. Kong was not aware of the significance of the 90 day deadline for motions to reopen.

[00:16:21] Speaker 04:
Maybe he didn't understand that there was a need to be expeditious in filing his motion.

[00:16:26] Speaker 04:
But that's not an excuse, and it certainly doesn't rise to the level of being an extraordinary circumstance that warrants equitable tolling.

[00:16:33] Speaker 02:
Counsel, Judge Gould with a couple of questions for you on legal points.

[00:16:39] Speaker 02:
First of all, regarding the question that I asked your friend on the other side of the case, is the burden on the government to show that he was not diligent, or is the burden on

[00:16:56] Speaker 02:
on con to show he was diligent as part of his claim to get equitable tolling.

[00:17:06] Speaker 02:
Who's got the burden?

[00:17:08] Speaker 04:
My understanding is because it seems that the burden is on the petitioner, the movement to establish due diligence and extraordinary circumstances, the two prongs of the equitable tolling analysis.

[00:17:21] Speaker 04:
I wish I had some case law at the ready for citing to you.

[00:17:25] Speaker 04:
But that is my understanding from my memory of the case law, but this is an equitable form of relief.

[00:17:31] Speaker 04:
They need to prove up their equities if they want to toll the deadline.

[00:17:36] Speaker 02:
Okay, then my second question is, am I correct that the doctrine of equitable tolling is a discretionary doctrine so that even if the facts show that

[00:17:53] Speaker 02:
something stood in his way and that he was diligent.

[00:17:57] Speaker 02:
A court would not necessarily have to grant equitable tolling.

[00:18:02] Speaker 02:
It would be a discretionary decision.

[00:18:09] Speaker 04:
To be honest, I don't know the answer to that question.

[00:18:11] Speaker 04:
I haven't seen a case where the court said something like that.

[00:18:17] Speaker 04:
It seems that if those two showings are made, that has always been the focus of the

[00:18:22] Speaker 04:
the case law, whether one or the other or both have been made.

[00:18:27] Speaker 04:
Unfortunately, I don't know the answer to that question.

[00:18:30] Speaker 04:
That seems very relevant to the Sue Esponte decision, part of this case, but I think here it's important to note the board found that Mr.

[00:18:41] Speaker 04:
Kong had not demonstrated due diligence.

[00:18:43] Speaker 04:
In his opening brief, Petitioner has very much fleshed out this second extraordinary circumstances argument based on not just Aguilar Rios, but on the idea that Asian Law Caucus and his own lack of resources, the overwhelming case load of Asian Law Caucus and his lack of resources combined together was another extraordinary circumstance that prevented timely filing.

[00:19:10] Speaker 04:
And in this case, the board accurately inciting Raspberry versus Garcia found this was not an extraordinary circumstance.

[00:19:21] Speaker 04:
And especially when we consider the fact that this is extraordinary is meant to be unusual or rare.

[00:19:29] Speaker 04:
And unfortunately, the situation, the predicament he is in is not that uncommon.

[00:19:36] Speaker 04:
I do want to point out about Mejia Hernandez.

[00:19:38] Speaker 04:
If we look at that case, yes, there was a seven-year delay because he was relying on the representation by the notario.

[00:19:47] Speaker 04:
But then when he learned about the fact that this notario had been ineffective when he hired new counsel, he filed his motion to reopen within two months.

[00:19:57] Speaker 04:
If we look at Lugo Resendez, he also, despite being removed, also filed his motion to reopen within two months

[00:20:04] Speaker 04:
after learning about the change in law that provided information about his claim, a vital information bearing on this claim.

[00:20:13] Speaker 04:
And so even an individual like Lugo Resendez, who has been removed and has a lack of resources, he was able to comply to the best of his abilities with the 90-day deadline once he became aware of the basis of his reopening claim.

[00:20:33] Speaker 04:
These cases are actually helpful for defending the agency in terms of the diligence and extraordinary circumstances analysis.

[00:20:43] Speaker 04:
I also want to address petitioners claim for Sue Esponte reopening.

[00:20:48] Speaker 04:
Here, I would argue that the court lacks jurisdiction to review the board's decision to deny Sue Esponte reopening because it is a purely discretionary determination in this case.

[00:20:59] Speaker 04:
It doesn't meet that exception that is set out in Bonilla and Lona for cases where the agency denies to a spontaneous reopening, not as a matter of discretion, but because it wrongly believed the law forbade it from exercising discretion or that exercising discretion would be futile.

[00:21:17] Speaker 04:
Here, the lack of diligence and finality were relevant considerations that the board could take into account

[00:21:26] Speaker 04:
as a matter of discretion, and appropriately did so.

[00:21:30] Speaker 04:
And Wilkinson, as we explained in our supplementary brief, does not alter this jurisdictional analysis.

[00:21:37] Speaker 04:
Am I over my time?

[00:21:39] Speaker 04:
I can't

[00:21:42] Speaker 04:
I'm afraid I can't tell.

[00:21:45] Speaker 04:
I'm sorry.

[00:21:46] Speaker 02:
You're 26 seconds in your time.

[00:21:51] Speaker 04:
Should I wrap up my thoughts?

[00:21:52] Speaker 02:
Yeah, just try to wrap them up within the next two minutes.

[00:21:57] Speaker 02:
Two minutes?

[00:21:59] Speaker 04:
Thank you.

[00:22:00] Speaker 04:
So Wilkinson addresses 8 USC 1252A2D, and that is not a provision relevant to Sue Esponte reopening.

[00:22:10] Speaker 04:
1252A2D

[00:22:12] Speaker 04:
is a jurisdiction restoring provision in the INA that allows for the review of legal and constitutional questions where the petition for review is otherwise unable to be reviewed under other parts of the INA.

[00:22:26] Speaker 04:
So it's this internal jurisdiction restoring provision.

[00:22:29] Speaker 04:
But Suez-Bonte relief is not in the INA.

[00:22:32] Speaker 04:
It's in a creature of the regulations.

[00:22:34] Speaker 04:
And the reason why there is not review over Suez-Bonte relief

[00:22:38] Speaker 04:
It's not because of a provision in the INA, it's because of the Administrative Procedures Act, specifically 5 USC 701A2.

[00:22:46] Speaker 04:
That's the provision for agency action committed to agency discretion by law, and that provision is what bars review.

[00:22:56] Speaker 04:
Wilkinson does not speak to the APA, and that's the way suicide re-opening is not affected by Wilkinson.

[00:23:03] Speaker 04:
Also, the fundamental law question issue is not

[00:23:06] Speaker 04:
which is what Petitioner is saying is now reviewable after Wilkinson.

[00:23:10] Speaker 04:
That is not an issue even in this case.

[00:23:14] Speaker 04:
It was not decided against Petitioner.

[00:23:17] Speaker 04:
And so Wilkinson has very limited relevance here.

[00:23:22] Speaker 04:
I think my time is up now.

[00:23:23] Speaker 04:
And so thank you very much.

[00:23:27] Speaker 02:
Thank you, Council.

[00:23:31] Speaker 02:
Dave, I'm calling.

[00:23:32] Speaker 00:
Thank you, Your Honors.

[00:23:34] Speaker 00:
A few brief points.

[00:23:35] Speaker 00:
Number one,

[00:23:36] Speaker 00:
My friend was arguing that clearly the lawyers told Mr. Kong X, Y, and Z. This is important for two reasons.

[00:23:44] Speaker 00:
Number one, there are no facts in the record supporting what my friend argued about what the lawyers allegedly told Mr. Kong.

[00:23:50] Speaker 00:
And number two, perhaps more salient, the BIA never held that.

[00:23:54] Speaker 00:
And so this court doesn't even have a basis in its jurisdiction to go out and make factual findings that don't exist in the record to somehow affirm a judgment.

[00:24:02] Speaker 00:
Number two, I'd like to talk briefly about the Suez-Bonte because there is legal backdrop and constitutional error here.

[00:24:08] Speaker 00:
And the error is that, and this is important, Bonilla itself recognizes that there's daylight between a due diligence analysis and the Suez-Bonte analysis.

[00:24:18] Speaker 00:
And if you look at the code structure itself, it also supports that, that there is a distinction between the two because of what can be assessed.

[00:24:25] Speaker 00:
And we outlined that in our brief and I won't repeat it.

[00:24:28] Speaker 00:
But the point then being,

[00:24:30] Speaker 00:
You can't just bring in the back door and say, I found you lack diligence, and so therefore I'm denying review on something that is reviewable, and say, and I also am denying Suez-Bonte for the same reason.

[00:24:39] Speaker 00:
There has to be daylight.

[00:24:40] Speaker 00:
And the second point is the only other thing the BIA said is it incanted the word finality, and this is important because the government never argued, legally or factually, finality.

[00:24:49] Speaker 00:
It mentioned the Abudu case from the Supreme Court in its brief.

[00:24:52] Speaker 00:
But it didn't even argue finality from that case in its argument, and it never even used the word finality.

[00:24:58] Speaker 00:
And the question we then raise is, how can the BIA just encamp finality as a doctrine when it's a reliance-based doctrine for the parties to assert when the government never asserted it?

[00:25:10] Speaker 00:
at 30,000 feet.

[00:25:11] Speaker 00:
What is the reliance interest in maintaining perspective enforcement of what we now know is an infirm judgment?

[00:25:17] Speaker 00:
And that's a wrong use of finality.

[00:25:19] Speaker 00:
And so that's the legal backdrop error.

[00:25:21] Speaker 00:
I would ultimately end on

[00:25:23] Speaker 00:
to this Court this idea that the Fifth Circuit's Lugo case is very important because we have to look at these cases when we're talking about LPRs, green card holders, in a different light and be very, very careful to make sure that the BIA operates well within the bounds when it makes these decisions.

[00:25:39] Speaker 00:
And so we would assert that Lugo really should be the benchmark for this Court to assess all of these questions in terms of how it assesses what happened below without making undue inferences the other way.

[00:25:51] Speaker 00:
On that, Your Honors, we thank you and we submit.

[00:25:53] Speaker 01:
If Judge Hold would allow me one question.

[00:25:56] Speaker 01:
Yes, of course.

[00:25:58] Speaker 01:
Counsel, I guess you indicate that there's nothing in the record indicating that the lawyers informed the petitioner that they just needed to wait.

[00:26:10] Speaker 01:
But is there anything in the record saying the opposite, that is, that he was misinformed in some way?

[00:26:16] Speaker 00:
No, there's nothing in the record either way in terms of him being misinformed or

[00:26:23] Speaker 01:
But then what do we do if we assume that he has a burden?

[00:26:26] Speaker 00:
Well, he's met his burden.

[00:26:27] Speaker 00:
I mean, it's a rebuttable presumption that tolling applies.

[00:26:30] Speaker 00:
He has met his burden by showing the facts of, I had always, in paragraph 25, looked for lawyers, couldn't find them.

[00:26:37] Speaker 00:
I found lawyers who said I can help you.

[00:26:39] Speaker 00:
They operated as his lawyers.

[00:26:40] Speaker 00:
They gave him legal advice.

[00:26:41] Speaker 00:
It comes from the declaration.

[00:26:42] Speaker 00:
They did a FOIA request.

[00:26:44] Speaker 00:
And they told him, until we essentially get legal funding restriction lifted, we can't help you.

[00:26:48] Speaker 00:
And so he now has lawyers.

[00:26:50] Speaker 00:
And your case law has said we cited you the cases that people have the right to rely on a lawyer and shouldn't be assuming that the lawyers doing something wrong.

[00:26:58] Speaker 00:
He shouldn't have to.

[00:26:59] Speaker 00:
So we don't look at this and say, oh, well, he's got to charge them with ineffective assistance in order to now make out a new claim.

[00:27:06] Speaker 00:
We look at this and say the lawyers did all they could.

[00:27:08] Speaker 00:
They couldn't find lawyers themselves when they tried, which is a really important fact.

[00:27:13] Speaker 00:
In other words, humanly, what more could Mr. Kong have done when American lawyers couldn't find a lawyer, right?

[00:27:19] Speaker 00:
I mean, that is such a powerful and important fact to understand if the framework is supposed to be for someone who otherwise has a green card.

[00:27:26] Speaker 00:
And we're talking about banishment from their American life.

[00:27:30] Speaker 00:
If the inquiry is supposed to be, did they exercise due diligence, we should be looking at someone and saying kudos to you.

[00:27:36] Speaker 00:
You got a lawyer.

[00:27:37] Speaker 00:
The lawyers did what they could do to try to help you.

[00:27:40] Speaker 00:
They couldn't help you instantly, but they did what they could when they could, and thank God they did.

[00:27:47] Speaker 00:
All right.

[00:27:47] Speaker 00:
Thank you.

[00:27:48] Speaker 02:
I'm afraid you're more than two minutes over your extended extra two minutes.

[00:27:55] Speaker 02:
Thank you, Your Honor.

[00:27:57] Speaker 02:
Those are Judge Bea.

[00:28:01] Speaker 02:
No further questions being heard.

[00:28:10] Speaker 02:
Yeah, I guess I have one question which I might ask you earlier and that is, am I correct that the Equitable Tolling Standard is a discretionary standard?

[00:28:27] Speaker 00:
I think it's reviewed for abuse of discretion, but I think in all the case law that I've looked at, if someone makes out a case of due diligence, they're entitled to equitable tolling as a matter of law.

[00:28:41] Speaker 00:
I think Mejia just outright reversed.

[00:28:42] Speaker 00:
It didn't say,

[00:28:43] Speaker 00:
Oh, you kind of got the facts wrong.

[00:28:45] Speaker 00:
Go back and look at it again, BIA.

[00:28:47] Speaker 00:
It's just outright reverse because he was entitled to it as a matter of law.

[00:28:51] Speaker 00:
And so I think if due diligence is shown, you can call the ball.

[00:28:56] Speaker 00:
And, you know, it's not a question of one being able to say, well, that really was due diligent, but nonetheless, we're not going to give you the relief.

[00:29:03] Speaker 00:
You have to give the relief if they've shown diligence.

[00:29:06] Speaker 02:
Do you have any case or what's your closest case that would say that equitable tolling can extend a 30-day deadline up to close to three years?

[00:29:21] Speaker 00:
I would say the best case is Mejia Hernandez because it was about a seven-year delay, I believe, in that case.

[00:29:27] Speaker 00:
I think the en banc decision of SOCOP is important because it talks about

[00:29:33] Speaker 00:
It wasn't a multi-year delay, but it does talk about the equitable principle sitting beneath equitable tolling in terms of why the delays.

[00:29:40] Speaker 00:
But I would point you to Mejia, and I'd also point you to both, in some sense, Lugo Rosendez and Goulart and Bonilla from this court, and Lona even from this court, where

[00:29:50] Speaker 00:
The court had a multi-year delay, and it did deny, but it said, loan is really important, it said, even though you waited three years, the reason we're denying is you've never offered a single fact.

[00:30:00] Speaker 00:
And the panel in that published opinion even said, you never even offered us the Ninth Circuit a fact.

[00:30:05] Speaker 00:
I mean, you literally did nothing, right?

[00:30:08] Speaker 02:
So, counsel, we're now more than four minutes over the extended two minutes, so I think we're going to have to bring the argument to a close.

[00:30:17] Speaker 02:
Unless a colleague of mine has on the panel wants to ask a thing further.

[00:30:23] Speaker 02:
If not, this case shall stand submitted.

[00:30:27] Speaker 02:
I want to thank both counsel for petitioner and for respondent for their strong arguments, which are

[00:30:37] Speaker 02:
very, very helpful to the panel.

[00:30:40] Speaker 02:
This case will now be submitted and the parties will hear from us in due course.

[00:30:48] Speaker 02:
Thank you.