[00:00:00] Speaker 00: Good morning, Your Honors. [00:00:01] Speaker 04: Good morning. [00:00:02] Speaker 00: I would like to reserve five minutes of my allotted time for rebuttal, please. [00:00:07] Speaker 00: I don't know if we'll adjust the clock or if I'll just keep that in mind. [00:00:10] Speaker 04: All right. [00:00:11] Speaker 04: Yeah. [00:00:11] Speaker 04: You have 15 minutes total, so we'll try to keep an eye on the clock. [00:00:16] Speaker 04: Okay. [00:00:17] Speaker 00: May it please the court. [00:00:18] Speaker 00: My name is Kyle Edgerton. [00:00:20] Speaker 00: I represent the petitioner, Christian Alexis Lopez Lopez. [00:00:24] Speaker 00: It's a pleasure to join you here from Reno, Nevada, where I come from and where Christian's mother and siblings all reside. [00:00:33] Speaker 00: His mother is pending permanent resident status and his four siblings are either US citizens or have lawful permanent resident status. [00:00:41] Speaker 00: Christian's not here today because since January of 2021, he has been in immigration detention, fighting against this case and fighting for an opportunity to remain in the country that he has called home since he was about two years old. [00:00:55] Speaker 04: Well, I think we realize all of those facts. [00:00:57] Speaker 04: And he did have status, which he allowed to lapse. [00:01:02] Speaker 04: And then he had what I might say a crime spree and went to prison. [00:01:07] Speaker 04: And now here we are. [00:01:09] Speaker 04: So we're looking at whether we've got CIMTs and also the pardon waiver clause. [00:01:17] Speaker 00: That's correct, Your Honor. [00:01:18] Speaker 00: And that's a helpful summary. [00:01:19] Speaker 00: I'll jump into some of the issues that you just raised, Judge Callahan. [00:01:24] Speaker 00: The sole basis for Christian's removal is a charge under Section 237A2A, Romanette 2, for having multiple convictions that constitute a crime involving moral turpitude. [00:01:36] Speaker 00: And as the Court is aware, we brought three different arguments that those proceedings should be terminated because that sole charge is defective. [00:01:44] Speaker 00: And I'll just hit them briefly. [00:01:45] Speaker 00: Again, the Court is aware of what those are. [00:01:48] Speaker 00: The first is this issue of the pardon waiver clause. [00:01:51] Speaker 00: That's 237A2A, Romanette 6. [00:01:54] Speaker 00: And the essential issue there is that these municipal offenses under Reno Municipal Code, of which Christian was convicted, are what I call non-pardonable offenses. [00:02:04] Speaker 01: And what is your basis for that? [00:02:07] Speaker 00: Thank you, Judge Sanchez. [00:02:08] Speaker 00: The record does not indicate definitively that those offenses are not pardonable. [00:02:14] Speaker 00: There was not a pardon application made to the city attorney's office. [00:02:18] Speaker 01: More than definitively, I'm not tracking your argument because I don't know whether or not the governor has [00:02:27] Speaker 01: a pardon authority over these offenses. [00:02:29] Speaker 01: What would you point to? [00:02:31] Speaker 01: What sort of state authority would you point to one way or the other to elucidate that matter for us? [00:02:35] Speaker 00: Certainly. [00:02:36] Speaker 00: And so just within the structure of Nevada law, as is often the case, municipal power is delegated, devolved down from the state authority. [00:02:44] Speaker 00: And in our briefs and in the arguments before the board and in the motion before the immigration judge to terminate, there was an extensive discussion, at least on our part, [00:02:54] Speaker 00: the statutory structure in Nevada law, which devolves the power to municipalities to set territorial boundaries, to manage zoning, things like that, even to create criminal offenses. [00:03:05] Speaker 00: But there is no devolution of power to be able to pardon offenses. [00:03:09] Speaker 00: There's nothing in the Reno City Charter that creates that power. [00:03:13] Speaker 00: The relevant statutes are completely silent on the matter. [00:03:17] Speaker 00: I can see that no effort was made to pursue that. [00:03:21] Speaker 00: And for that reason, it may be necessary simply to remand this [00:03:24] Speaker 00: to pursue and determine that factual question, but at the same time, there's nothing, there's no hint anywhere in state law, state law principles more broadly, or in the Reno City Charter that would indicate that there is a power of the mayor to communicate. [00:03:38] Speaker 01: We may not need to get there if we resolve the CIMT issue in your favor, but it just struck me that there was a lot of ink being spilled on this issue about the pardon waiver when the threshold question was, [00:03:53] Speaker 01: Why haven't you brought forward some indication that the Reno convictions can't be pardoned, just as a beginning starting point? [00:04:04] Speaker 00: Right. [00:04:05] Speaker 00: Yes, conceded. [00:04:07] Speaker 00: Okay. [00:04:07] Speaker 00: It's just, again, it's a matter that we just did not pursue. [00:04:09] Speaker 00: And our hope is that either on this, [00:04:14] Speaker 00: reading the statutory scheme and determining that this this court's holding in Google's, affirmed in Costello, cited favorably by the board for a period of time in Savayos, matter of Savayos, that there's no need to get into what the facts would look like there. [00:04:29] Speaker 00: And then additionally, there's these additional arguments that maybe the CIMT matter falls aside. [00:04:33] Speaker 01: Well, so let's get into the CIMT. [00:04:35] Speaker 01: It seems as if your strongest argument is the municipal code provision about intent to deprive doesn't seem to shed light one way or the other on whether that's an intent to permanently deprive or not, or whether it tracks state law. [00:04:52] Speaker 01: And what should we do with that? [00:04:55] Speaker 01: There's a state code reference, which may be persuasive or not. [00:05:01] Speaker 00: How should we resolve this issue? [00:05:03] Speaker 00: Well, general categorical approach principles apply. [00:05:06] Speaker 00: And so again, to put it simply, when there is ambiguity, we resolve that through a principle of lenity in favor of the respondent, in favor of the person who's facing banishment from the United States. [00:05:17] Speaker 00: And this is a principle that we can find in all kinds of circumstances. [00:05:20] Speaker 00: A non-citizen is charged with a controlled substance offense. [00:05:24] Speaker 00: and it's maybe a bit squishy or unknown what that controlled substance was. [00:05:28] Speaker 00: If we can't determine through the categorical or modified categorical approach that that was cocaine or heroin or methamphetamine, [00:05:35] Speaker 00: we essentially have to retreat to a presumption that it was a small amount of marijuana for personal possession. [00:05:40] Speaker 04: Okay, but here, given that the Reno Municipal Code instructs to construe its terms according to the context and approved usage of the language, isn't it appropriate to consider the definitions of deprive under Nevada law and the Model Penal Code? [00:05:56] Speaker 04: Can you cite to any cases discussing interpretation of municipal law in this context? [00:06:03] Speaker 00: I can't cite to any relevant cases, Your Honor, at this time. [00:06:06] Speaker 00: How I would respond to that, Judge Callahan, is, again, there's two pieces. [00:06:11] Speaker 00: One is that the Reno Municipal Code says it is to be determined based on context. [00:06:15] Speaker 00: And so we advanced an argument that that essentially means common usage, dictionary definitions, et cetera, and that that would tend not to reach the intent to deprive standard. [00:06:26] Speaker 00: It would be very natural for the Reno Municipal Code to say these provisions are to be interpreted consistent with Nevada statutory law and decisional law. [00:06:34] Speaker 00: That would be a very natural and obvious thing to do, and the Reno Municipal Code, the charter did not do so. [00:06:41] Speaker 04: It doesn't, it just doesn't seem natural to me to interpret the petty theft statute to cover more than just the permanent or [00:06:48] Speaker 04: substantial deprivation of property. [00:06:51] Speaker 00: Well, we argued, Your Honor, that there is a reason, because in the municipal context, we are dealing with, by definition, urban areas. [00:06:58] Speaker 00: You're dealing with kind of higher propensity crime, more social harm from criminal offenses of various natures. [00:07:05] Speaker 00: And so it would make sense for a municipal body to create a criminal statute that actually sweeps more broadly [00:07:12] Speaker 00: But you're just borrowing stuff or what? [00:07:15] Speaker 04: I'm sorry? [00:07:16] Speaker 04: You're borrowing stuff, you're not permanently depriving? [00:07:19] Speaker 04: It just doesn't make sense to me. [00:07:21] Speaker 00: Nevada law in the same chapter, 205, I don't believe this is in the briefs, but I just know it personally. [00:07:26] Speaker 00: Nevada law has both a possession of a stolen motor vehicle, grand theft auto type statute. [00:07:31] Speaker 00: It also has taking a vehicle without intent to deprive, basically a joy riding statute. [00:07:37] Speaker 00: And so legislative bodies may distinguish different kinds of conduct and may punish [00:07:42] Speaker 00: joyriding or its equivalent in the personal property context from something where there's an intent to permanently deprive. [00:07:49] Speaker 04: I just don't know of any theft crime other than when you're talking about vehicles. [00:07:57] Speaker 04: I don't know of any where that it's just borrowing or it's not to permanently deprive. [00:08:03] Speaker 00: We could speculate as to whether a municipal body would seek to punish that. [00:08:07] Speaker 00: The hypothetical of the situation that we advanced, again, before the immigration judge, and it was maybe a colorful example, was basically taking someone's unusual clothing for a costume party, taking my dad's paisley pantsuit from the 70s and going to a costume party without asking him. [00:08:25] Speaker 00: I've taken his property, but I did not have intent to deprive [00:08:28] Speaker 00: permanently. [00:08:29] Speaker 00: Now whether municipal body would go out of its way to sweep in that kind of conduct is a different question, but that would be the reason would be to determine to deter antisocial conduct. [00:08:38] Speaker 04: I don't know that that hypothetical sort of takes me to the theater of the absurd. [00:08:42] Speaker 04: So I'm trying to think more in terms of [00:08:46] Speaker 04: what really could happen. [00:08:47] Speaker 00: And the difficult thing, Your Honor, I think for the government, rather than what bolsters our case, is that with the categorical approach, which is the issue that we're at here, we do approach it with a light touch, or rather with, again, from a principle of lenity. [00:09:01] Speaker 00: If there is ambiguity, if we are raising these questions and we can't quite resolve them, [00:09:06] Speaker 00: and it's really a push or a jump ball, we resolve them in favor of the respondent. [00:09:10] Speaker 00: That is the principle of Taylor and that's what brought us forward today. [00:09:13] Speaker 01: Even before we get to the rule of net lenity, doesn't Moncrief give us some guidance? [00:09:20] Speaker 01: Are we allowed as a court to sort of fill in a gap as to what the Reno Municipal Code would say or interpret or rely on the model penal code or anything else for that matter? [00:09:33] Speaker 01: if there's just nothing in the record or no state court decision to tell us one way or the other? [00:09:38] Speaker 00: Your Honor, I would argue that no, the court can't fill that in. [00:09:43] Speaker 00: And again, it's that if there is ambiguity, we retreat back and determine that the... Because again, in order to establish removability, it is the government's burden to establish that this person is removable by clearing convincing evidence. [00:09:55] Speaker 00: And so if there's not... Excuse me, that's a misstatement. [00:10:00] Speaker 00: But the government's burden to establish this person is removable, [00:10:04] Speaker 00: And if the government can't proffer a conviction that will meet the requirement for removability, and we're not able to determine that it does in fact meet that standard, then the government fails and the respondent must be relieved from the threat of removal. [00:10:18] Speaker 01: So the government could come forward with some evidence that Reno only ever prosecutes people for permanent deprivations of property and not temporary ones? [00:10:28] Speaker 00: I think if they could come forward with an adequate factual predicate to support that, then that would put us certainly on our back foot. [00:10:35] Speaker 04: So you're getting into your rebuttal time. [00:10:37] Speaker 00: I am. [00:10:37] Speaker 00: Do you want to reserve? [00:10:38] Speaker 00: I will reserve, thank you, unless the court has any other questions pressing at the moment. [00:10:42] Speaker 00: Thank you. [00:10:46] Speaker 04: We'll hear from the government. [00:10:50] Speaker 02: Good morning, Your Honors. [00:10:51] Speaker 02: I'm Spencer Schuchard for the United States, and may it please the court [00:10:54] Speaker 02: This is actually a straightforward case, because it's about reality versus fantasy. [00:11:00] Speaker 02: Almost everything the petitioner is asking you to do is foreclosed by law. [00:11:05] Speaker 02: The petitioner has sort of proposed this alternate reality in which the case law is more to his taste. [00:11:10] Speaker 02: But in order to accomplish that, your honors would have to overturn at least two board precedents, at least one of your own precedent, probably more, and ignore at least one and probably several Supreme Court precedents. [00:11:23] Speaker 01: Mr. Shukart, are you referring to how to interpret the Reno Municipal Code? [00:11:27] Speaker 01: Do you have authority to tell us how we should interpret this statute, this language in the municipal code? [00:11:35] Speaker 02: The board's interpretation is due deference because they're interpreting a statute here. [00:11:39] Speaker 02: And under the categorical approach, the board's interpretation of the elements of codes is due Chevron deference. [00:11:46] Speaker 01: I'm sorry to clarify that, but I thought the board is owed Chevron deference as to its determination whether a conviction is a crime involving moral turpitude. [00:11:58] Speaker 01: But when it comes to looking at state law, we review that de novo. [00:12:04] Speaker 02: I will put your honor to Gallardo v. Barth, which is? [00:12:11] Speaker 02: 968 after 1053, that gives a sort of in-depth analysis of how Chevron and the categorical approach arrive at the elemental part of determining which elements match the federal generic. [00:12:27] Speaker 02: And in this case, the Reno Municipal Code commands its users to construe its terms according to approved content. [00:12:37] Speaker 02: It criminalizes petty larceny, gives those terms. [00:12:40] Speaker 02: And then it gives the context. [00:12:41] Speaker 02: It points to the Nevada state code for petty larceny. [00:12:44] Speaker 02: That's a straight line of interpretation. [00:12:47] Speaker 02: There's there's really not that there's honestly no gap to fill there. [00:12:53] Speaker 02: And that's a reasonable interpretation. [00:12:55] Speaker 02: The court is due deference on that. [00:12:57] Speaker 02: So again, I'm talking about reality versus fantasy in this world. [00:13:01] Speaker 01: Before we get into any pejoratives, what about the Reno Municipal Code 1.01.060, which says state law references are not intended to have any legal effect [00:13:13] Speaker 01: but are merely intended to assist the user of the code. [00:13:16] Speaker 01: What do we make of that? [00:13:17] Speaker 01: Because there's that state code reference, and then in another part of the municipal code, it says there's no illegal effect to it. [00:13:27] Speaker 02: What I believe it's disclaiming there is just recognizing the reality that Reno City Council can't promulgate state law, and Reno City Courts can't prosecute state offenses. [00:13:38] Speaker 02: They can only prosecute ordinance. [00:13:41] Speaker 02: But it is telling you that these cross-references exist, they're there on purpose, and they're there to assist the user, i.e. [00:13:47] Speaker 02: to provide context. [00:13:49] Speaker 02: So when they give us these cross-references, the context is there. [00:13:52] Speaker 02: They've already told us to take that context and apply it to assist in understanding what they mean. [00:13:58] Speaker 02: And they've given us the matching state petty larceny charge, which is a categorical CIMT. [00:14:05] Speaker 02: That was the board's categorical analysis here. [00:14:08] Speaker 01: So in your interpretation, that state code reference means that the municipal code is following state law. [00:14:16] Speaker 02: Yes, exactly. [00:14:20] Speaker 03: But the definition of petty larceny and state law in Nevada is different from the definition under the Reno municipal code. [00:14:32] Speaker 02: They're substantially similar. [00:14:35] Speaker 03: If you look at them carefully, no, they're not. [00:14:41] Speaker 02: Which part of them do you feel is different enough to make this an uncertain match? [00:14:47] Speaker 03: Well, the state statute doesn't specify the intent element. [00:14:51] Speaker 02: The intent element is defined in another part of the state statute, if that's true. [00:14:57] Speaker 02: The state petty larceny statute has had its terms defined both within the statutory scheme and by case law. [00:15:04] Speaker 02: And I think we can give the drafters of the Reno Municipal Code credit for understanding that their terms will be given meaning by courts if they're litigated. [00:15:14] Speaker 03: Well, it's kind of a stretch if you look at the structure of Nevada law because they clearly give the municipalities the power to enact these ordinances. [00:15:23] Speaker 03: There's a provision that Judge Sanchez referenced. [00:15:27] Speaker 03: So, I mean, aren't we really just stuck with looking at the words of the ordinance and unadorned by the state statute? [00:15:35] Speaker 02: None at all, because otherwise why would the state statute of reference be in there? [00:15:39] Speaker 02: How would we give effect to that when the municipal code is told us? [00:15:42] Speaker 03: Well, are you conceding then that if you look at the municipal ordinance alone that it doesn't satisfy the categorical approach? [00:15:51] Speaker 03: I mean, do we need to get, your argument is we need to get to the state interpretation, which implies to me that you're conceding that on its face, the municipal ordinance does not satisfy the categorical approach. [00:16:08] Speaker 03: If you're not, you should make an argument. [00:16:10] Speaker 02: I'm making the argument, Your Honor. [00:16:12] Speaker 03: Just focus on the ordinance. [00:16:14] Speaker 03: Do you think, unadorned by reference to state law? [00:16:21] Speaker 02: If you strip out the context, yes, Your Honor, then there's not enough in there on its own to help us understand what the elements are. [00:16:28] Speaker 02: But that's true of a lot of statutes. [00:16:32] Speaker 02: Take Mathis, for example, take burglary. [00:16:34] Speaker 02: Often we have to look at other parts of statutory schemes. [00:16:36] Speaker 01: But the difference with those cases is there are state court decisions that we can rely on in order to interpret how the state court enforces its own statutes, right? [00:16:47] Speaker 01: So that's where the importance of state court decisions come in. [00:16:50] Speaker 01: And as I understand it, there aren't any that have interpreted this Reno municipal code provision. [00:16:57] Speaker 02: No, you're not going to find any. [00:16:58] Speaker 02: And that's going to be true for most municipal ordinances. [00:17:00] Speaker 02: They don't typically get litigated in that way. [00:17:03] Speaker 02: So if that were the rule that under municipal codes that don't give us specific, you know, by the word, this is what we mean by every term, then there's going to be a lot of city code violators that don't end up getting the IMT charges that they deserve. [00:17:17] Speaker 02: But I think I do want to point your honors to Nevada Revised Statute 268.018, in which the state tells us that municipalities can only charge people with misdemeanors under the municipal code if there is a matching, or if the matching state crime is also a misdemeanor. [00:17:39] Speaker 02: And again, petitioner was charged with misdemeanors. [00:17:41] Speaker 02: You can see that several times. [00:17:44] Speaker 02: So I think that's another strong sort of circumstantial evidence that this is what was meant by the by the city of Reno when they criminalized Petty Larceny. [00:17:56] Speaker 02: Otherwise, what we're looking at is Petty Larceny is a crime in all of Nevada except Reno. [00:18:02] Speaker 02: There's no reason why the City of Reno would have swept more broadly. [00:18:08] Speaker 02: There's no reason why they have put these words into their municipal code without intending us to give effect to them in some way. [00:18:14] Speaker 02: And when we interpret statutory schemes, be they municipal codes or state statutes, the board is charged. [00:18:21] Speaker 02: It has to look at every piece of the statutory scheme to understand what the words mean. [00:18:27] Speaker 02: It doesn't have to all be within that same little piece. [00:18:30] Speaker 02: It's telling us exactly where to look. [00:18:32] Speaker 02: So we have the definition of the crime. [00:18:34] Speaker 02: We know that Nevada State Petty Larceny is a CIMT. [00:18:38] Speaker 02: So we know that this is as well. [00:18:43] Speaker 01: Do you think it's based on the state code reference that Reno is precluded from trying to prosecute someone for just a temporary deprivation of property under this code provision? [00:18:59] Speaker 02: Under Petty Larceny, yeah. [00:19:03] Speaker 01: So I guess you're ascribing some legal effect to the state law reference. [00:19:08] Speaker 01: Even the municipal code says you shouldn't do that. [00:19:13] Speaker 02: It's there for context. [00:19:14] Speaker 02: Otherwise, it's just there to fill space on the page. [00:19:17] Speaker 02: We have to try and understand why they gave us these cross references. [00:19:21] Speaker 02: And that's easy enough to do because they told us in the code what cross references mean, the context. [00:19:26] Speaker 02: That is how we construe the terms. [00:19:28] Speaker 02: So if any of these terms are ambiguous, the cross references help them not be ambiguous. [00:19:32] Speaker 01: Could I ask you briefly about the pardon waiver issue? [00:19:36] Speaker 01: Are you aware, one way or the other, whether there's no pardon authority for the conviction for municipal offenses? [00:19:44] Speaker 02: No, I'm not aware. [00:19:46] Speaker 02: That was never litigated. [00:19:47] Speaker 02: The petitioner conceded that issue in court, and so it wasn't put in there. [00:19:52] Speaker 02: The judge took the word, and he was quite right to concede it because his arguments were closed by matter of no one. [00:20:02] Speaker 02: We'll explore the pardon waiver issue. [00:20:03] Speaker 02: Have we done with intent to deprive? [00:20:08] Speaker 02: I can move on. [00:20:10] Speaker 02: A petitioner conceded at trial that his pardon waiver issue was foreclosed by law, and he's quite right to do so because for over 30 years, the rule for pardon waivers has been that the first thing that courts do is to determine whether there's been a conviction, and then secondly, to see whether there's been a pardon. [00:20:28] Speaker 02: That's perfectly reasonable construction of the statute. [00:20:30] Speaker 02: It tracks the language. [00:20:32] Speaker 02: Dichtner agrees that this is a logical reading. [00:20:34] Speaker 02: Since everyone seems to be in agreement that this is a reasonable interpretation, the court should defer the matter of Nolan. [00:20:41] Speaker 02: The cases that he cites, they've gobbled Custello. [00:20:44] Speaker 02: Both of those cases are mid-century cases interpreting a statute that's now been repealed. [00:20:49] Speaker 02: And they also both rely on the idea that Congress was silent about what a conviction was in the CIMT context. [00:20:57] Speaker 02: And that was true at the time, but the Congress has since passed a definition of conviction at 1101A, 48A of the INA. [00:21:06] Speaker 02: And it doesn't include pardonability. [00:21:07] Speaker 02: The petitioner kind of gives away the game. [00:21:11] Speaker 02: In his reply brief, when he makes an analogy to Mathis, he's calling pardonability an element of the CIMT, the 1227 CIMT chart. [00:21:23] Speaker 02: That's not what it is. [00:21:24] Speaker 02: The elements of CIMT has been settled for quite some time by this court, by the agency. [00:21:30] Speaker 02: It's reprehensible conduct committed at some level of criminal men's rape. [00:21:36] Speaker 02: There's not a pardonability element in there. [00:21:38] Speaker 02: So no matter how you look at this, whether Chevron's there or not, a petitioner failed on that issue. [00:21:44] Speaker 02: And the same is true for his single scheme argument. [00:21:46] Speaker 02: The petitioner again conceded this at trial. [00:21:48] Speaker 02: Because he felt that Zoni and Adetiba, a matter of Adetiba, blocked his argument, and he's right again, committing several acts of larceny over a period of a couple weeks. [00:22:03] Speaker 02: Because you're in a poor frame of mind is not a single scheme of criminal misconduct. [00:22:10] Speaker 02: So again, in this world, he loses. [00:22:12] Speaker 02: And his alternate reality doesn't work either. [00:22:15] Speaker 02: Sort of given the opportunity, he gives himself a clean slate to rewrite the law. [00:22:19] Speaker 02: And he just rewrites Zonyi. [00:22:21] Speaker 02: He sort of advances this idea of the pause and reflect paradigm, but that's already in Zonyi. [00:22:28] Speaker 02: They call it reflect and dissociate. [00:22:30] Speaker 02: He talked about what he called the wood approach, which is a fact-specific argument. [00:22:37] Speaker 02: A single scheme is already a fact-based issue that the court reviews for substantial evidence. [00:22:41] Speaker 02: That's been shown to you. [00:22:42] Speaker 02: So again, this issue doesn't work for them. [00:22:47] Speaker 02: And so again, on all three points of removability, additional arguments fail. [00:22:51] Speaker 02: And as to the merit of this pain, I'll start by talking about, I think I'll start by talking about neck pain. [00:23:01] Speaker 02: Unless your honors have a question about the untimely application, the asylum issue. [00:23:09] Speaker 04: No, we don't appear to. [00:23:12] Speaker 02: Okay. [00:23:12] Speaker 02: Then I just want to hit a couple of things about the substantial evidence standard for nexus. [00:23:16] Speaker 02: I just want to point out, just notice conceded that the board applied the proper legal standard here. [00:23:22] Speaker 02: There's no question about mixed questions of review or anything like that. [00:23:26] Speaker 02: We're just talking about the motive finding. [00:23:28] Speaker 02: And in this case, the evidence is that the persecutor was, he had violence who was directed at everyone in the house. [00:23:36] Speaker 02: It was targeted indiscriminately. [00:23:37] Speaker 02: It was triggered by nothing. [00:23:40] Speaker 02: The gentleman was often drunk. [00:23:42] Speaker 02: Everyone in the house was related to the petitioner's mother. [00:23:45] Speaker 02: So there's no way to distinguish whether or not this was targeted by animosity toward one or all of them or just [00:23:53] Speaker 02: that he was an often drunk and angry person. [00:23:56] Speaker 02: The IJ's determination about the persecutor's motive there cannot, the evidence can't compel that a different outcome should follow there. [00:24:10] Speaker 02: And I think, unless Your Honor has any other questions, I'll be prepared to rest on the briefs. [00:24:15] Speaker 04: We have no additional questions. [00:24:17] Speaker 04: Thank you. [00:24:18] Speaker 02: Thank you, Your Honor. [00:24:32] Speaker 00: Your honor, if I could just pick up on a couple of my friend's points. [00:24:38] Speaker 00: I think that Judge Callahan properly pushed back on a poor analogy of mine with regard to the suit example for sweeping an additional conduct. [00:24:45] Speaker 00: But again, I would remind the court that when we look at Diaz-Lizarraga and the Ninth Circuit, I think it's Barbosa Garcia case adopting that, this is the distinction between the intent to deprive and not. [00:24:56] Speaker 00: There was a need to do that, right? [00:24:57] Speaker 00: There was a need to distinguish statutes that include the intent to deprive component from those that don't. [00:25:04] Speaker 00: And so that is sufficient for this purpose of this analysis. [00:25:07] Speaker 00: We don't have to theorize what the purpose would have been for the Reno Municipal Code. [00:25:11] Speaker 00: The fact is, again, under the categorical approach, we're looking, as Judge Thomas indicated, for the language of that provision. [00:25:17] Speaker 00: And if we don't see the elements or the indicia that we need, we need to determine that that provision is not adequate for a conviction that would constitute a categorical crime involving moral turpitude. [00:25:30] Speaker 00: Again briefly on the Reno Municipal Code component, I wanted to draw the Court's attention to a brief exchange the parties had with regard to a Citizens for Cold Springs case that my friend brought to my attention. [00:25:44] Speaker 00: I was a bit perplexed by that because as I understand part of the [00:25:48] Speaker 00: the government's reading is that Nevada statute, statutory law basically bars municipalities from having redundant provisions. [00:25:56] Speaker 00: That seems to be the at least one reading of that citizens of Cold Springs case. [00:26:00] Speaker 00: If that is the case, if municipalities are not allowed to have redundant provisions with state law, then that really draws us into the question of whether [00:26:08] Speaker 00: Reno Municipal Code 810-040 can be duplicative of Nevada Revised Statute 205.240. [00:26:16] Speaker 00: If it is the case that municipalities basically can't copy the state legislature's homework, that does lead us more firmly in the direction of concluding that there's something distinct in Reno Municipal Code versus state law. [00:26:33] Speaker 00: And as I indicated, I may not be the best at analogies. [00:26:36] Speaker 00: I've been struggling to understand the government's complete perplexedness at this argument that once the judicial recommendation against deportation was repealed in 1990, the JRAT as I'll call it, that my friend seems to think that the entire regime of Gubals, Costello, Savayos must fall aside. [00:26:57] Speaker 00: Savayos was overruled internally by the agency, [00:27:02] Speaker 04: Well, I guess that on the pardon waiver clause, we found in Goebbels that the statute's framework supported an interpretation that unavailability of judicial recommendations against deportation meant the crime, quote unquote, was not one which could support deportation. [00:27:24] Speaker 04: Why isn't that rationale equally applicable here, and how do we weigh prior judicial interpretations against the BIA's interpretation in the matter of Nolan? [00:27:36] Speaker 04: Can the BIA's interpretation overcome a contrary judicial interpretation? [00:27:42] Speaker 00: that takes us into Chevron and Brand X territory that we probably don't have enough time to unpack. [00:27:48] Speaker 00: And just briefly, I think that to respond to something my friend raised, we're not asking to unilaterally rewrite Ninth Circuit law. [00:27:56] Speaker 00: We're simply noting that within six weeks, there's a decent chance that the Supreme Court, the US Supreme Court will have done something to Chevron. [00:28:04] Speaker 00: Maybe it'll have been pared back, maybe it'll be completely overturned. [00:28:06] Speaker 04: People have been talking about that forever. [00:28:09] Speaker 04: So I guess I'm not sitting on the edge of my chair. [00:28:12] Speaker 04: I'm not taking any bets. [00:28:15] Speaker 04: My law clerks have been talking about this for the whole 20 years I've been on the court. [00:28:19] Speaker 00: And I would be wise not to hold my breath. [00:28:21] Speaker 00: I'm simply pointing out to forecast what those issues would have and what implications they would have for this case. [00:28:27] Speaker 00: With regard to Google's, again, [00:28:31] Speaker 00: My friend seems to be indicating that because a component, and again, the analogy between Goobles and the former 241A4B2 structure to now is a bit twisted and complicated. [00:28:44] Speaker 04: But Castello and Goobles, or Goobles or however we say it, they recognized this statute was ambiguous. [00:28:53] Speaker 04: So if the statute's ambiguous, then the way things are presently, the BIA's interpretation can be given deference. [00:29:01] Speaker 00: Well, it's tricky because ambiguous took a very different meaning after 1984 with Chevron. [00:29:05] Speaker 00: So when in 1958, a court described something as ambiguous, it does not freight it with the meaning of that word 30 years later. [00:29:13] Speaker 04: But I guess maybe you're just super special because no one's been talking about this for 40 years. [00:29:20] Speaker 04: So now you're talking about it. [00:29:22] Speaker 00: Well, Your Honor, part of the reason, if I may continue, I'm over time. [00:29:26] Speaker 00: Just briefly, yes. [00:29:28] Speaker 00: The main reason why, whether it's we think that we're special, it is that no one has touched this matter. [00:29:34] Speaker 00: Because again, this comes up in edge cases. [00:29:36] Speaker 00: That's just one piece briefly. [00:29:37] Speaker 00: And again, we touched on it in the briefs. [00:29:39] Speaker 00: This comes up in unusual circumstances, such as this one. [00:29:43] Speaker 00: So that is one piece of why it doesn't get brought up. [00:29:46] Speaker 00: Another piece is, again, I think many, many practitioners probably like my friend look at this and say, OK, here's a 60-year-old decision. [00:29:54] Speaker 00: that looks like dead letter, also it was overturned, it was internally overruled in 1988 in Nolan, end of story. [00:30:02] Speaker 00: But again, Chevron is one piece of it, we'll set that aside. [00:30:06] Speaker 00: The analysis in Nolan, as we go into in some extent in our briefs, is quite flawed. [00:30:10] Speaker 00: I really wish I could have unpacked for you some of the policy implications of this, if I may briefly state them. [00:30:18] Speaker 04: I think we're okay, unless either of my colleagues have questions. [00:30:21] Speaker 04: I think we're fine. [00:30:22] Speaker 00: Okay, fine with that. [00:30:23] Speaker 04: All right, so this matter will stand submitted. [00:30:26] Speaker 04: Thank you both for your argument. [00:30:29] Speaker 04: This court is in recess for the week. [00:30:33] Speaker 04: Thank you.