[00:00:04] Speaker 01:
Thank you, Your Honors, and good morning, and may it please the Court.

[00:00:07] Speaker 01:
Peter Afrisiabi on behalf of Petitioner, who is present with me, Ms.

[00:00:11] Speaker 01:
Lou Amsajan.

[00:00:13] Speaker 01:
Your Honors, this case fundamentally presents what's a procedural issue.

[00:00:18] Speaker 01:
It's not a referendum on whether the government's characterization of her is right or her characterization is right.

[00:00:25] Speaker 01:
This is a procedural question about whether the BIA, on an ineffective assistance of counsel motion, used the wrong standard.

[00:00:33] Speaker 01:
And our submission is it did, because as a matter of law, the ineffective assistance of council motion

[00:00:40] Speaker 01:
established a plausible case of prejudice that attorney Wong's conduct may have affected the outcome of the proceeding.

[00:00:47] Speaker 03:
So, I mean, you've now honed in on the procedural part.

[00:00:51] Speaker 03:
I mean, just to be clear, we're not reviewing whether there's a particularly serious crime at issue here, right?

[00:00:58] Speaker 01:
You're not.

[00:00:59] Speaker 01:
You're not reviewing whether this was, in fact, as a matter of law, a particularly serious crime.

[00:01:03] Speaker 01:
Indeed, under Bear v. Barr, when that's ultimately adjudicated, there's very limited review here anyway.

[00:01:07] Speaker 01:
Nor are you adjudicating whether, in fact,

[00:01:10] Speaker 01:
a cap claim was made out.

[00:01:12] Speaker 01:
All you're looking at is whether the record given on the ineffective assistance of counsel motion is one that showed that the underlying attorney failed in a way that may have affected the outcome.

[00:01:23] Speaker 03:
And the BIA said this was, or I guess the IJ and then the BIA said that this was cumulative evidence or not relevant, right?

[00:01:37] Speaker 01:
No, this motion to reopen was only heard by the BIA.

[00:01:41] Speaker 03:
But that's what the BIA said.

[00:01:44] Speaker 01:
Well, the BIA said a few things, which are things of direct appeal courts.

[00:01:48] Speaker 01:
But the BIA said that this evidence would not change the outcome of the case.

[00:01:53] Speaker 03:
But you said that because it was cumulative or not relevant.

[00:01:58] Speaker 01:
Yes, I think that's probably a way to characterize it.

[00:02:01] Speaker 01:
And that is wrong as a matter of law in terms of the prejudice calculus.

[00:02:06] Speaker 05:
They did consider three things, as I understood it.

[00:02:10] Speaker 05:
They considered the fact that she had cooperated and they had a letter.

[00:02:15] Speaker 05:
They considered her prior victimhood, if that's a term, but the fact that she'd been involved herself before she then moved up in the organization.

[00:02:28] Speaker 05:
And there was a third thing.

[00:02:30] Speaker 05:
I can't remember what the third factor was.

[00:02:33] Speaker 05:
And it looked to me like the evidence that you are complaining about would have been cumulative in the sense that it would have fleshed out in greater detail the nature and extent of her cooperation.

[00:02:45] Speaker 05:
But I'm having a hard time understanding why that would have made an impact on the decision when the board had previously considered that.

[00:02:52] Speaker 01:
I'll tell you exactly why.

[00:02:54] Speaker 01:
Okay.

[00:02:55] Speaker 01:
On with her and there's two.

[00:02:57] Speaker 01:
PSC and CAP with respect to PSC.

[00:02:59] Speaker 01:
The immigration judge in the original trial said, I've looked at the plea agreement.

[00:03:04] Speaker 01:
I see her sentence.

[00:03:06] Speaker 01:
Tentatively, I find this to be a PSC.

[00:03:09] Speaker 01:
Counsel, it's not set in stone because the calculus under Frantescu-Bervibar is never set in stone.

[00:03:15] Speaker 01:
It's a flexible calculus.

[00:03:16] Speaker 01:
And what she told him is, if you want to change my mind, I need evidence.

[00:03:21] Speaker 01:
And the evidence that wasn't given that bears directly on this, and that statement from the IJs at page 847 of the record is, and really the key evidence that I would ask you to really focus in on is, this exhibit J on page 267 of the record is the government's downward departure motion, which is staggering.

[00:03:40] Speaker 01:
The district judge said in his career he had either never seen it or maybe once, 21 years as a district judge, and it

[00:03:48] Speaker 01:
contextualizes this victim-perpetrator line.

[00:03:51] Speaker 05:
He went down from, what, 235 to 47.

[00:03:54] Speaker 05:
I would call that a pretty staggering variance from the low end of the guideline range.

[00:04:03] Speaker 01:
It is, but why it's staggering was never given the immigration judge in the first case.

[00:04:08] Speaker 05:
But the judge knew that she had cooperated.

[00:04:10] Speaker 05:
Didn't the government provide some evidence with regard to her cooperation?

[00:04:16] Speaker 03:
only that she had cooperated and so this is why the cooperation testified in the grand jury had not had to testify before the pedagogy exactly but what and why does any of that even matter whether it's a particularly serious crime i mean at the end of the day the crime is the crime with a sentence was downward departure i mean the fact that she cooperated

[00:04:39] Speaker 01:
doesn't make it less of a particularly serious crime it's not the fact that she cooperated your honor it's the fact that when you look at the analysis of whether something's particularly serious you have to look at

[00:04:50] Speaker 01:
the circumstances that underlie the conviction.

[00:04:52] Speaker 01:
And the reason to tying to your question, Judge, about this victim perpetrator line and why it's so important is the original decision just said, yes, she was a victim, then she moved up.

[00:05:03] Speaker 01:
When you look at her testimony, the district judge's statement, the government's motion, it was far more nuanced than that.

[00:05:10] Speaker 01:
And so a fact finder in the first instance, as our IJ here said, I could be moved on this, a fact finder could look at that evidence and say,

[00:05:19] Speaker 01:
When she crossed that line from victim and took on the mother role, it didn't make this a particularly serious crime.

[00:05:28] Speaker 01:
And that's what a fact finder could have done.

[00:05:29] Speaker 05:
And the IG said she could get there.

[00:05:32] Speaker 05:
I'm having the same problem Judge Nelson is having, because our prior panel upheld the determination that it was a particularly serious crime.

[00:05:40] Speaker 05:
And the evidence that you're talking about

[00:05:44] Speaker 05:
was before the agency at the time, but not to the degree or to the extent that you urge it should have been.

[00:05:55] Speaker 05:
And I just don't see how that would have made any difference when the board knew that the court had already departed more than almost 200 levels, which is a huge departure, based on her cooperation.

[00:06:11] Speaker 01:
Because what the agency didn't have the first time, for example, is Judge Frank's letter, his I-918 letter, that explains why he's doing what he's doing.

[00:06:22] Speaker 05:
But they knew what he did.

[00:06:23] Speaker 01:
But the frantesco analysis requires one to actually look at the type of sentence imposed, not just the number.

[00:06:29] Speaker 03:
Tell me, what does that mean, the type of sentence imposed?

[00:06:35] Speaker 03:
None of that changed.

[00:06:36] Speaker 03:
I mean, none of this evidence would have changed the type of sentence that was imposed.

[00:06:40] Speaker 01:
this evidence explains the type of sentence.

[00:06:43] Speaker 03:
That's fine.

[00:06:45] Speaker 01:
And that's why it's so important.

[00:06:46] Speaker 03:
But that's not how we do this.

[00:06:47] Speaker 03:
I mean, I guess I'm fundamentally trying, I'm worried that we should cut you off at the pass because if we opened up the door to this, we're opening up a door to anyone come in and claiming all kinds of new mitigating factors that weren't presented before.

[00:07:02] Speaker 03:
And the fact of the matter is it doesn't even matter.

[00:07:06] Speaker 05:
I mean, you've got some evidence, for example, the grand jury testimony

[00:07:10] Speaker 05:
that most immigration lawyers will never be able to even see unless their client had previously been convicted and that information was turned over in discovery by the government.

[00:07:22] Speaker 03:
I mean let's take a different hypothetical.

[00:07:24] Speaker 03:
Let's say that it was murder.

[00:07:27] Speaker 03:
And then the defendant, we all agree, murder is a particularly serious crime.

[00:07:34] Speaker 03:
There's no debate about that.

[00:07:35] Speaker 03:
And then five years later, they come in and say, well, he was abused, all these other mitigating factors.

[00:07:43] Speaker 03:
I think my response would be,

[00:07:46] Speaker 03:
It's all irrelevant.

[00:07:48] Speaker 03:
The fact of the matter is he was convicted of murder.

[00:07:51] Speaker 03:
I don't care that there were 100 mitigating factors.

[00:07:57] Speaker 03:
That's not the legal analysis.

[00:08:00] Speaker 03:
Can you show us where a court has looked at this?

[00:08:03] Speaker 03:
I'm just trying to get you out of the gate here.

[00:08:05] Speaker 03:
Where has a court looked at this and said, we're going to dig deeper underneath the crime and look at mitigating factors to determine whether it's a particularly serious crime?

[00:08:15] Speaker 01:
Well, I think that's what Frantisco and Barry V. Barr say.

[00:08:18] Speaker 03:
I don't think it says that at all.

[00:08:19] Speaker 01:
Well, I think what they've said is it's not mechanical.

[00:08:21] Speaker 01:
You don't just look at the label of the crime in the sentence and say done.

[00:08:25] Speaker 01:
Yeah, but you look at the crime.

[00:08:27] Speaker 03:
Where have they said you get to look at mitigating factors?

[00:08:30] Speaker 03:
I think if two people are convicted of the same crime, then those things come across and we analyze them in the same way.

[00:08:39] Speaker 03:
We don't say, oh, this other person has all these other

[00:08:43] Speaker 03:
mitigating factors so therefore it wasn't particularly serious.

[00:08:47] Speaker 03:
Where's the case that says we can even engage in this analysis?

[00:08:50] Speaker 01:
I think barely bar pages nine sixty four to nine sixty five says nothing in the definition of a particularly serious crime limits the scope of permissible evidence and i think if we if we look then at the cat claim which is second to the psc claim there we have evidence that we can look at the emails the the attorneys were given show

[00:09:13] Speaker 01:
At the time of the underlying criminal prosecution, there were threats that were directed back to family in Thailand.

[00:09:20] Speaker 05:
There was a threat by the fellow inmate, and the Bureau of Prisons took action to move your client so that that threat could be neutralized.

[00:09:32] Speaker 05:
But the board also looked at the fact

[00:09:34] Speaker 05:
that the Thai authorities were stepping up their enforcement of sex trafficking rings.

[00:09:40] Speaker 05:
There had been no harm to her family in Thailand.

[00:09:45] Speaker 05:
I mean, that was all before the board.

[00:09:49] Speaker 05:
So it's true.

[00:09:51] Speaker 05:
What difference is is this more fulsome evidence going to make in in the assessment of particularly serious crime?

[00:10:00] Speaker 05:
well i'm talking about cat the reason this evidence is really if if there's you know no harm as befalling well being threatened counts as harm to begin with no but hold on

[00:10:11] Speaker 03:
You can't just come in and say, oh, we have new evidence of a threat.

[00:10:15] Speaker 03:
You have to show that it ties to the Thai government.

[00:10:19] Speaker 03:
There's nothing in the record about the Thai government not protecting her.

[00:10:27] Speaker 01:
I disagree, Your Honor, for this reason.

[00:10:28] Speaker 01:
And I can explain it if you give me a couple of sentences.

[00:10:32] Speaker 01:
When the co-defendant threatened her, that fact was not given in the original trial.

[00:10:37] Speaker 01:
Judge Frank said,

[00:10:40] Speaker 01:
She has confronted threats and similar co-defendants have confronted threats.

[00:10:45] Speaker 01:
That is very important because the threats were going also telling her your family back in Thailand can be attacked.

[00:10:53] Speaker 01:
Now the original trial, that's the causation issue that was missing in the original trial.

[00:10:58] Speaker 05:
But she didn't testify at that trial.

[00:11:00] Speaker 05:
Are you talking about the co-defendants that were ultimately convicted in the case?

[00:11:04] Speaker 01:
No, no, I'm saying at her original asylum trial, the causation evidence that ultimately was missing, that could bridge, yeah, I'm talking about the torture.

[00:11:13] Speaker 05:
When you said trial, I thought you were referring to the trial in Minnesota.

[00:11:15] Speaker 03:
Sorry, no.

[00:11:16] Speaker 03:
But more fundamentally, you said give you a few sentences, I gave you that.

[00:11:20] Speaker 03:
I still heard nothing.

[00:11:23] Speaker 03:
out of your mouth that tied it to the Thai government.

[00:11:26] Speaker 03:
Threats from co-defendants does not count.

[00:11:30] Speaker 03:
You agree with that, right?

[00:11:31] Speaker 01:
I would agree with that, but there is evidence with respect to the government.

[00:11:35] Speaker 01:
I'm waiting.

[00:11:37] Speaker ?:
I'm waiting.

[00:11:37] Speaker 01:
Yes.

[00:11:37] Speaker 01:
The police worked to smuggle women out through the passport lines with the criminal gang.

[00:11:43] Speaker 01:
That's in the record.

[00:11:44] Speaker 01:
The reason that's important is because when she, before she was ever in asylum proceedings, when she said, I'm worried because the police, which is in the ROIs that weren't given, the police work with the gang.

[00:11:56] Speaker 01:
That connects it.

[00:11:58] Speaker 01:
The police are in league with the criminal organization.

[00:12:00] Speaker 01:
The Thai police.

[00:12:01] Speaker 01:
Yes.

[00:12:02] Speaker 01:
And they work to smuggle the women out through special passport lines.

[00:12:07] Speaker 01:
And so when she's testifying, in the criminal case, before ever being in an asylum proceeding where one would know that this stuff could matter about Kat, it's really important that she's telling the government, the police in Thailand work with the gang.

[00:12:20] Speaker 01:
And so then when a code criminal defendant says, we're going to threaten your family back there, of course she's worried, because the police do work with them.

[00:12:29] Speaker 01:
And that's the evidence that was never given in the original trial and would bridge the gap.

[00:12:34] Speaker 05:
Okay, but the agency had before it the fact that she rose from the ranks of being one of the workers to actually being a boss in the organization and running the house in Phoenix and laundering the proceeds of the activities that occurred there to Thailand.

[00:13:00] Speaker 05:
So again, I'm looking for something that's going to undercut the agency's determination that her conduct, assessed against the statute, resulted in a particularly serious crime.

[00:13:12] Speaker 01:
Back to that point, I think it's Judge Frank's letter, the government's downward departure motion.

[00:13:18] Speaker 05:
All of which the court took into effect and the agency knew when she got 47 months instead of 235 or more.

[00:13:25] Speaker 01:
Well, it didn't have those documents and what it didn't have was the government lawyers explaining this line between victim perpetrator and how she crossed it.

[00:13:33] Speaker 05:
But it explains why the court departed it down to 47.

[00:13:37] Speaker 05:
The agency doesn't need to know that if they can see that the government's representations at sentencing resulted in such a low sentence.

[00:13:48] Speaker 01:
But they didn't get the guidelines before them.

[00:13:50] Speaker 01:
They just got 47 versus 230.

[00:13:52] Speaker 01:
Maybe that happens all the time.

[00:13:54] Speaker 01:
They didn't know that it happened literally the only time this district judge had ever seen it.

[00:13:58] Speaker 01:
And so that contextualizes why it's a form of evidence.

[00:14:02] Speaker 05:
Can you answer a related question?

[00:14:03] Speaker 05:
What happened to her U visa application?

[00:14:06] Speaker 01:
Denied, Your Honor.

[00:14:07] Speaker 05:
Denied.

[00:14:07] Speaker 05:
Okay.

[00:14:08] Speaker 05:
And has she sought in any other way to adjust her status?

[00:14:13] Speaker 01:
The visa applications were denied.

[00:14:15] Speaker 01:
Those were denied as well?

[00:14:16] Speaker 01:
And those are administratively denied, and I believe they're pending a potential internal administrative appeal.

[00:14:24] Speaker 01:
Okay.

[00:14:24] Speaker 01:
On the U visa.

[00:14:25] Speaker 01:
Okay.

[00:14:25] Speaker 01:
I see I'm running out of time, so I'll save you.

[00:14:27] Speaker 02:
Yeah, we've taken you over, so any other questions?

[00:14:31] Speaker 02:
Otherwise, we'll give you some time for a vote.

[00:14:33] Speaker 01:
Thank you, Your Honor.

[00:14:40] Speaker 04:
I may please the court, John Stanton for the government.

[00:14:44] Speaker 04:
Judge Nelson, Judge Taumann, I mean, the government agrees that most of this evidence is cumulative and could not have made a difference under any standard.

[00:14:53] Speaker 04:
But some evidence isn't even cumulative.

[00:14:55] Speaker 04:
With respect to the acquiescence evidence that the position of counsel is referring to, I mean, I'll make it easy.

[00:15:02] Speaker 04:
Page 709 of the administrative record was the board's first opinion.

[00:15:07] Speaker 04:
Everything after that was from the original record before the agency.

[00:15:12] Speaker 04:
The only acquiescence evidence they cite in this round of briefing is on the reply brief, page 19, various pages on page 81 to 913 of the administrative record.

[00:15:25] Speaker 04:
It was literally the same acquiescence evidence that they originally put to the

[00:15:30] Speaker 03:
Can I ask a more fundamental question?

[00:15:31] Speaker 03:
Because this argument sort of made me think about what evidence can you use to reopen in a case like this for a particularly serious crime?

[00:15:41] Speaker 03:
Because he points to this generalized statement that, well, there's no limit on the scope of permissible evidence.

[00:15:50] Speaker 03:
But that can't mean what he wants it to mean.

[00:15:54] Speaker 03:
But where do we go to figure that out?

[00:15:56] Speaker 04:
I will tell you this.

[00:15:58] Speaker 04:
The way the immigration statute is, if it's sentenced five years or more to per se particular serious crime, she got four years now.

[00:16:07] Speaker 03:
It's not per se.

[00:16:09] Speaker 03:
It's not per se.

[00:16:10] Speaker 04:
It's not per se, but it is pretty close to that.

[00:16:13] Speaker 04:
And it was a crime against people.

[00:16:16] Speaker 03:
So in a case like this, so maybe my murder example is not good, because murder would almost always be over five.

[00:16:22] Speaker 03:
So let's come up.

[00:16:23] Speaker 03:
But could you have two people similarly situated

[00:16:27] Speaker 03:
sentenced to the exact same amount of time and one would be a particularly serious crime and one would not because of other factors that weren't looked at.

[00:16:38] Speaker 03:
Is that possible?

[00:16:38] Speaker 04:
Yeah, I think it's possible.

[00:16:40] Speaker 04:
Please don't

[00:16:42] Speaker 04:
Don't bind the government to that.

[00:16:46] Speaker 04:
I'm not the attorney general.

[00:16:48] Speaker 04:
I would like to think it is possible that if you have a significant sentence and you're committed of a crime that may be legal in some jurisdictions, but not others.

[00:17:00] Speaker 05:
She should have a more sympathetic case.

[00:17:02] Speaker 05:
had she not risen in the ranks, I'm thinking a minor role in the offense.

[00:17:07] Speaker 04:
Sure.

[00:17:07] Speaker 04:
Perhaps so.

[00:17:08] Speaker 04:
Again, please don't buy me for future cases.

[00:17:10] Speaker 04:
But if she just provided transportation or really had like a really minor role in the conspiracy, which was very significant, I mean, it's certainly possible, possible again.

[00:17:23] Speaker 00:
One thing that's unfortunate, whether it makes a difference, we'll have to decide.

[00:17:28] Speaker 00:
But one thing that's unfortunate,

[00:17:30] Speaker 00:
is that the comments of a federal judge about this woman were not even in front of the i j that's unfortunate i mean i think it's deeply unfortunate that the judge went to the trouble of making these comments and with the idea that they would be read by somebody and considered and maybe they wouldn't be agreed with

[00:17:49] Speaker 00:
But he was the one who heard all her testimony.

[00:17:52] Speaker 00:
He sentenced her.

[00:17:54] Speaker 00:
And there's a question about the delta between what was before the IJ at time one and this additional information we have now.

[00:18:01] Speaker 00:
But it's not a great system in which a district judge goes to the trouble of making all these statements.

[00:18:08] Speaker 00:
And then they're just not put in front of the IJ.

[00:18:10] Speaker 00:
That's not an ideal way in which this should go.

[00:18:14] Speaker 04:
I mean, the petitioner argues, similar to what Your Honor just said, that the sentencing judge should be in the best position to determine whether a non-citizen face should be allowed to remain in the United States.

[00:18:26] Speaker 04:
In 1917, Congress agreed with that.

[00:18:29] Speaker 00:
It's not the judge's call.

[00:18:31] Speaker 00:
We agree with that.

[00:18:31] Speaker 00:
It's not the district court's call as to whether she remains in the United States.

[00:18:36] Speaker 00:
In the comments, his desires on that front are notable, but ultimately not legally relevant.

[00:18:43] Speaker 00:
What's more relevant is the contextualization of the offense.

[00:18:48] Speaker 00:
And I just think it's unfortunate that the IJ didn't have this information at time one.

[00:18:54] Speaker 00:
Whether it would have made a difference is the question, but I think it's unfortunate.

[00:18:58] Speaker 04:
I won't dispute it's unfortunate.

[00:19:01] Speaker 04:
That being said, it's also a legal melody.

[00:19:06] Speaker 04:
In the 1980s and 1990s, Congress, for better or for worse, enacted a lot of, for lack of a better word, get tough on crime laws, one of which was revisions to the immigration statute, which they withdrew the

[00:19:20] Speaker 04:
Judicial recommendations against deportation remedy like Congress said sentencing judges.

[00:19:25] Speaker 00:
I mean look we all do respect but your opinions that the that the Noncitizens should not be removed or now or relevant is her degree of cooperation Relevant to the particularly serious crime analysis, man Would you agree that the IJ could consider that in assessing whether the crime was was particularly serious or do you actually dispute that it's relevant?

[00:19:49] Speaker ?:
I

[00:19:49] Speaker 04:
well i mean it's like it is relevant that the development is isn't that great that being said as judge um... nelson judge tom and said said uh... earlier uh... the uh... the immigration judge was well aware that the uh... positioner had cooperator the fact that the immigration judge didn't have all the specific details i mean we don't think i understand i'm just trying to understand what do you think the inputs into the the psc determination are so it sounds like

[00:20:15] Speaker 00:
degree of cooperation and IJ wouldn't air if he or she considered that.

[00:20:20] Speaker 00:
Is that fair?

[00:20:22] Speaker 04:
She did consider the evidence of cooperation, like originally the immigration judge, but just more of the same cumulative evidence.

[00:20:29] Speaker 00:
How about the fact that the

[00:20:34] Speaker 00:
that the that that uh... misaligned cdn was also a victim is that something that can be considered in a p s c it can be considered it was considered it was considered the immigration judge was oh sorry i want to ask about that because why can't be considered because that's not intuitive to me

[00:20:54] Speaker 03:
that that has anything to do with whether, I mean, the crime was still the crime.

[00:20:58] Speaker 03:
I understand Judge Tallman's hypothetical of whether you were a leader or whether you were not a leader, that seems to play into the crime.

[00:21:06] Speaker 03:
But whether you cooperated, I don't understand why that's relevant to whether it was a particularly serious crime.

[00:21:11] Speaker 04:
I personally don't either, but I think the board has said something to that effect in a published opinion.

[00:21:16] Speaker 04:
It did emphasize, I believe the quote is in our brief, that cooperation is relevant but not that big a deal.

[00:21:25] Speaker 04:
And same thing with victimhood.

[00:21:28] Speaker 04:
I would imagine it goes to the nonsense of mental state, which again, the agency found she was not incompetent.

[00:21:40] Speaker 04:
She consciously decided to commit these criminal acts, notwithstanding that she herself was originally a victim.

[00:21:49] Speaker 00:
One issue in the case was the...

[00:21:53] Speaker 00:
think i have this right that the bondage debt essentially as to one of the other uh... people were working in one of the houses and why it was that miss slum season took control of that that and is there any did it what was before the immigration judge on that point verses what i think we're being told now that the reason for that was

[00:22:15] Speaker 00:
essentially to protect this other woman from something even worse happening.

[00:22:20] Speaker 00:
I'm generalizing a little bit.

[00:22:26] Speaker 00:
My question specifically is on this issue of the bondage debt as to one of the other women who is working in this

[00:22:34] Speaker 00:
What is the difference between what the IJ had at time one and what we're being told now about why Ms.

[00:22:42] Speaker 00:
Lam Shijian had that debt, was in control of that debt?

[00:22:46] Speaker 04:
With respect to the project's debt, I don't think there was anything new about it.

[00:22:49] Speaker 04:
I'm sure the opposing counsel can correct me if I'm wrong.

[00:22:55] Speaker 04:
The new evidence, if I'm recalling correctly, there was these threats from a co-defendant.

[00:23:03] Speaker 04:
in the trial.

[00:23:03] Speaker 04:
There was more details regarding her cooperation.

[00:23:06] Speaker 04:
I mean, there was some evidence that their husband was going to testify us to her mental state.

[00:23:13] Speaker 04:
Regarding her actual backstory, I mean, I just cannot recall what the difference, what the new evidence was, as opposed to what the immigration judge originally considered.

[00:23:26] Speaker 04:
That being said, I mean, whatever it was, it was not

[00:23:31] Speaker 04:
any different substantively than what was before the I.J.

[00:23:34] Speaker 04:
in the first instance.

[00:23:36] Speaker 05:
Let me ask you one timing question.

[00:23:39] Speaker 05:
I didn't realize that the agency had a form now for the judge to fill out.

[00:23:46] Speaker 05:
Do we know the date and the timing sequence after the sentencing?

[00:23:50] Speaker 05:
Was it shortly after he sentenced her or some longer period?

[00:23:53] Speaker 04:
I don't know about the timing, but it's actually a different agency.

[00:23:58] Speaker 04:
It's sent to the United States Citizens and Immigration Services, which is a little different from the immigration court.

[00:24:04] Speaker 05:
So that was submitted in conjunction with her petition to adjust status.

[00:24:09] Speaker 04:
Yes, yes.

[00:24:13] Speaker 04:
My understanding, that potentially is not before the court right now.

[00:24:18] Speaker 05:
That actually makes sense to me because CIS is an agency driven by forms, and I would expect there to be a form.

[00:24:25] Speaker 04:
It's important work, but sometimes you have forms.

[00:24:29] Speaker 04:
And of course, as we say in our brief, that application was denied.

[00:24:34] Speaker 04:
So I mean, again, all due respect to the sentencing judge in this case.

[00:24:39] Speaker 04:
But since 1990, and we cite cases from other courts where the non-assistance try to make a very similar argument as this.

[00:24:50] Speaker 04:
And the court said, I mean, look, the sentencing judge, I mean, look, it just doesn't matter.

[00:24:56] Speaker 03:
One of the things that the parties disputed a lot was the standard for prejudice here.

[00:25:04] Speaker 02:
Yes.

[00:25:04] Speaker 03:
I was going through our prior cases.

[00:25:07] Speaker 03:
Flores says it has to be a plausible grounds for relief.

[00:25:11] Speaker 03:
That's 2019.

[00:25:12] Speaker 03:
Blanco says it would not likely change the outcome.

[00:25:16] Speaker 03:
We'd go back into the 80s.

[00:25:18] Speaker 03:
It actually can make a difference.

[00:25:22] Speaker 03:
Some likelihood.

[00:25:23] Speaker 03:
Does that standard, is that workable, how we have it, or do we need to?

[00:25:28] Speaker 03:
I mean, because other circuits have gone a little further than what we've already done and clarified that it's reasonable probability.

[00:25:36] Speaker 03:
Do we need to do that in the Ninth Circuit?

[00:25:39] Speaker 04:
The government position is that we're just talking semantics here, that of all the variations.

[00:25:44] Speaker 04:
You think that that is reasonable?

[00:25:47] Speaker 04:
Yes, yes.

[00:25:47] Speaker 04:
We think the reasonable probability, of course, is inherent in the plausible grounds.

[00:25:52] Speaker 04:
I mean, of course, it's a reasonable probability.

[00:25:57] Speaker 04:
I mean, if nothing else, the Supreme Court admittedly in the Sixth Amendment context has expressly rejected the theory that Petitioner is making here that any conceivable

[00:26:07] Speaker 03:
Any other court adopted that because I mean that that seems to be And maybe because I mean he probably needs that standard that there's like there's literally no possible impact I mean that seems to be with the standard that he's pushing.

[00:26:22] Speaker 03:
Is there any support for that in any other circuit?

[00:26:24] Speaker ?:
I

[00:26:24] Speaker 04:
No, not the other circuits, no.

[00:26:27] Speaker 04:
Every other circuit here is an immigration case.

[00:26:30] Speaker 04:
It's a circuit for the number.

[00:26:31] Speaker 04:
Everyone else does the reasonable probability standard expressly.

[00:26:36] Speaker 04:
A lot of times it comes from Strickland.

[00:26:38] Speaker 04:
The only outlier is the U.S.

[00:26:39] Speaker 04:
Court of Appeals for the Fifth Circuit.

[00:26:41] Speaker 04:
They say you have to actually show you would win, so it's a higher standard.

[00:26:45] Speaker 04:
of prejudice.

[00:26:46] Speaker 04:
But again, we believe the standard of Strickland and Harrington from the Supreme Court should also apply here.

[00:26:56] Speaker 04:
I mean, Strickland was a death penalty case, so Harrington, the defendant, was facing a life sentence.

[00:27:01] Speaker 04:
I mean, we find it very incongruent that those types of defendants... That you have a different standard for immigration than for a death penalty.

[00:27:10] Speaker 04:
I mean, like, the Fifth Amendment, like, provides weaker protection for counsel.

[00:27:15] Speaker 04:
I mean, it's still meaningful, but it's still lower than the Sixth Amendment.

[00:27:19] Speaker 04:
Sixth Amendment, like, provides more protection for obvious reasons.

[00:27:25] Speaker 04:
I mean, like, the stakes are just higher in those contexts, death penalty and life sentences, whereas the approach is just merely, I mean, it's still serious, but merely being removed from the United States.

[00:27:34] Speaker 04:
question no okay so but um yes so i mean um yes so uh it probably would be nice for the for the court to at least clarify um some of its previous pronouncements regarding um the uh the threshold for prejudice so otherwise we'll i mean um

[00:27:52] Speaker 04:
We'll get into disputes like this again.

[00:27:56] Speaker 04:
But again, we advocate for the reasonable probability standard of prejudice.

[00:28:00] Speaker 04:
Otherwise, one piece of paper from a neighbor could theoretically, conceivably, maybe move the needle a bit, just maybe, which would really bog down the immigration.

[00:28:11] Speaker 00:
But this is not one piece of paper from a neighbor, right?

[00:28:13] Speaker 00:
That's not really comparable to the case.

[00:28:15] Speaker 00:
Again, there's a question as to what to do with the new evidence, but I don't think that's really what we have here.

[00:28:21] Speaker 00:
I'm sorry?

[00:28:22] Speaker 00:
I don't think we have just one piece of paper for the neighbor.

[00:28:25] Speaker 04:
We have more.

[00:28:26] Speaker 04:
Just within the context of articulating the correct standard.

[00:28:29] Speaker 04:
I agree we have more than just one piece of paper, but our argument was only that the petitioner's interpretation of this court's presence is just too low a standard, too low a threshold for prejudice.

[00:28:43] Speaker 04:
So that's all I was saying.

[00:28:44] Speaker 04:
Yes, we actually have more than one piece of paper.

[00:28:46] Speaker 04:
Yes, yes, yes.

[00:28:48] Speaker 04:
I mean, my time's almost up.

[00:28:49] Speaker 04:
I don't think there's any more questions.

[00:28:54] Speaker 04:
Thank you.

[00:28:56] Speaker 03:
We'll give you two minutes for rebuttal.

[00:28:59] Speaker 03:
Thank you, Your Honor.

[00:29:01] Speaker 01:
A few quick points.

[00:29:04] Speaker 01:
Sentences beneath 60 months require a facts and circumstances analysis.

[00:29:08] Speaker 01:
And when one of the factors that the BIA and Francescu's held, which Bear v. Barn and all this court's case law holds, is you must look at the circumstances underlying the conviction.

[00:29:17] Speaker 01:
That requires more than just knowing the sentence and the crime.

[00:29:20] Speaker 01:
The circumstances underlying the conviction itself define it.

[00:29:23] Speaker 05:
Now... But they knew that she had cooperated, which would explain why there's a 200-level downward departure.

[00:29:31] Speaker 01:
They knew she cooperated, but they didn't know because the 200-hour departure wasn't just cooperation.

[00:29:36] Speaker 01:
It was also extreme victimhood.

[00:29:38] Speaker 05:
But the cooperation is important because the ROIs that weren't given explain the cooperation wasn't just... Again, you're pointing to something that, to get back to Judge Nelson's concern, you know, most immigration counsel are not going to have access to reports of investigation unless their client was convicted and it was turned over in criminal discovery.

[00:29:59] Speaker 01:
True.

[00:29:59] Speaker 01:
And that makes this an extremely rare case.

[00:30:02] Speaker 01:
We're not opening Pandora's box with this case.

[00:30:04] Speaker 01:
And the cooperation is important because the cooperation wasn't just that she got before a grand jury and said, he was there, she was there, he was there.

[00:30:11] Speaker 01:
It was, this is how the organization works.

[00:30:13] Speaker 01:
It's how it smuggles women.

[00:30:15] Speaker 01:
It's how they launder money using bank accounts, what they put in their luggage.

[00:30:19] Speaker 01:
immense detail, which makes her then an existential threat to the criminal organization.

[00:30:24] Speaker 01:
That wasn't in the first trial.

[00:30:26] Speaker 01:
And on Frantescu, the immigration judge at 847 said, I know she got 47 months.

[00:30:32] Speaker 01:
I know it was money laundering and sex trafficking of the charges.

[00:30:36] Speaker 01:
I may still find this not to be a PSC if you give me evidence.

[00:30:39] Speaker 01:
And that's why it's important.

[00:30:41] Speaker 01:
And to Judge Bras, your question.

[00:30:45] Speaker 01:
about why she took control of the debt and the contextualization of that.

[00:30:50] Speaker 01:
It wasn't given at the first trial.

[00:30:52] Speaker 01:
The first trial, when you read the BIA's decision, it simply says she went from victim to criminal.

[00:30:57] Speaker 01:
But what her sentencing statement, what the government said, what the district judge said that wasn't given at the first trial showed that she didn't want to take on a bondage debt.

[00:31:07] Speaker 01:
She said no repeatedly.

[00:31:09] Speaker 01:
The girl was scared to be under the control of these other people.

[00:31:13] Speaker 01:
And so she said, OK, that was illegal.

[00:31:16] Speaker 01:
And she went to jail for it.

[00:31:17] Speaker 00:
Did Judge Frank make any comments on this piece of this?

[00:31:23] Speaker 01:
On this piece of it, not in his I-918, but at the sentencing transcript hearing, I believe he did talk about this.

[00:31:31] Speaker 01:
With respect to, I say I'm out of time, but Judge Tolman, you asked the question about the immigration form and when it was done.

[00:31:36] Speaker 01:
It was, if you look at the record at page 226, there's a letter from Judge Frank where he attaches the I-918.

[00:31:44] Speaker 01:
He sent it to Immigration Council.

[00:31:46] Speaker 01:
So it wasn't done as just some sort of admin agency thing.

[00:31:50] Speaker 01:
I just brought a form.

[00:31:52] Speaker 05:
How soon after the sentencing?

[00:31:54] Speaker 05:
Was it reasonably contemporaneous?

[00:31:57] Speaker 01:
I believe it was a couple of years because this was May of... A couple of years after he sentenced her?

[00:32:01] Speaker 01:
Yeah, this is May of 2020 is when he sent the letter.

[00:32:04] Speaker 01:
And I don't have the judgment in front of me here at the podium table, but I believe... 47 months it would have been before then.

[00:32:13] Speaker 01:
I believe she was sentenced if I want to say it was 2017 or 2018, she was sentenced and she had about six months left.

[00:32:19] Speaker 01:
And so she was out by when she was in ICE custody around 2018.

[00:32:25] Speaker 01:
So it was a couple of years after that, that Judge Frank sent this letter off to the council saying, here's the information.

[00:32:32] Speaker 01:
All of which, and it's not a single piece of paper, and this is why it's very important, your case law is fine.

[00:32:37] Speaker 01:
The prejudice standard, you have multiple cases that have dealt with the crazy Hail Marys.

[00:32:43] Speaker 01:
Itubaria is one of them.

[00:32:44] Speaker 01:
We cited another one in our brief and explained it at length.

[00:32:48] Speaker 01:
A petitioner comes in and says, oh, I've got another piece of paper, basically.

[00:32:51] Speaker 01:
You know, it's a total Hail Mary.

[00:32:52] Speaker 01:
And this court can say, no way.

[00:32:54] Speaker 01:
It doesn't even pass the smell test.

[00:32:56] Speaker 01:
You have that back end already in the case law to protect you from people trying to constantly come back on motions.

[00:33:03] Speaker 01:
That case is a perfect example.

[00:33:05] Speaker 01:
That's why we explicated it in our reply brief.

[00:33:07] Speaker 01:
But what standard are you asking for?

[00:33:09] Speaker 03:
Because, I mean, I read your brief to say that you're advocating for literally no possible impact.

[00:33:16] Speaker 03:
I'm arguing... Is that the standard you're asking us to adopt?

[00:33:20] Speaker 03:
Literally no possible impact?

[00:33:22] Speaker 01:
Yeah, for me to lose, there has to be literally basically no possible impact.

[00:33:25] Speaker 01:
It's an absolute hail Mary.

[00:33:27] Speaker 03:
Yeah, but I don't think that comports with the rest of the cases that I just read.

[00:33:32] Speaker 03:
You know, plausible grounds for relief.

[00:33:34] Speaker 03:
would not likely change actually can make a difference.

[00:33:39] Speaker 01:
Yes.

[00:33:40] Speaker 03:
I think that's different than literally no possible impact.

[00:33:43] Speaker 01:
If there's daylight it's not this case because what this court has said is that... You think you still meet these other states.

[00:33:48] Speaker 01:
Yes, because this court has said that plausibility is not even a prima facie case.

[00:33:52] Speaker 01:
I think we unequivocally make out a prima facie case on PSC and CAT.

[00:33:57] Speaker 01:
if the full record was given.

[00:33:58] Speaker 01:
And I think that's why the IJ said.

[00:34:01] Speaker 03:
But if you're interpreting it that way, then it does go to whether the government is right, that we need to be clear that these are all explanations of reasonable probability.

[00:34:11] Speaker 03:
Because reasonable, you agree that reasonable probability, at least you're different, you see daylight between these cases and reasonable probability.

[00:34:20] Speaker 01:
Yes, I do.

[00:34:21] Speaker 01:
The two cases I gave you, the Tarabia and the other one I'm blanking on the name,

[00:34:27] Speaker 01:
Absolutely not a reasonable possibility.

[00:34:30] Speaker 03:
Right.

[00:34:30] Speaker 03:
And the problem is if you're right about that, then the Ninth Circuit, I mean, maybe we need to fix it, maybe we don't, but then the Ninth Circuit is out of step with the other circuits on this.

[00:34:40] Speaker 01:
I don't think so, because I think we cited the Sixth Circuit case, which has the same standard you have, which is we're not looking to find a prime.

[00:34:46] Speaker 03:
I thought the Sixth Circuit said specifically it was reasonable probability.

[00:34:50] Speaker 01:
No, I don't believe it did.

[00:34:51] Speaker 01:
We have that brief in our case.

[00:34:54] Speaker 00:
So is your position that reasonable probability is not the standard?

[00:34:58] Speaker 01:
I don't think reasonable probability is a standard.

[00:35:00] Speaker 01:
I think it's just plausible.

[00:35:01] Speaker 01:
I think reasonable probability could be misconstrued as being like a prima facie case, 51%.

[00:35:05] Speaker 01:
And this court has already said, you don't have to make out a prima facie case.

[00:35:09] Speaker 01:
So reasonable probability, a chance, plausibility, that's sub 50%.

[00:35:14] Speaker 01:
It's just, could a fact finder, look at this, come to a different conclusion?

[00:35:18] Speaker 01:
And we know this fact finder could have because she said,

[00:35:22] Speaker 01:
give me a record beyond the plea agreement and the sentence, I may have a different opinion.

[00:35:27] Speaker 01:
She told him that at page 847.

[00:35:30] Speaker 01:
And so we know this very fact finder could have had a different take on this.

[00:35:35] Speaker 01:
And so when the BIA says, we, the BIA, would come to the same conclusion, that's not the standard of a motion to reopen court.

[00:35:43] Speaker 01:
That's the standard of a direct appeal court or perhaps a motion to reconsider.

[00:35:47] Speaker 01:
But it's not a motion to reopen for ineffective assistance, and that's the root error.

[00:35:52] Speaker 01:
The I.J.

[00:35:53] Speaker 01:
here herself was willing to entertain a different outcome.

[00:35:58] Speaker 01:
Okay.

[00:35:58] Speaker 03:
Thank you, counsel.

[00:35:59] Speaker 01:
Thank you, Your Honor.

[00:36:00] Speaker 03:
There you go over, but this was very interesting, and we appreciate both your arguments, and the case is now submitted.

[00:36:05] Speaker 03:
Thank you much.

[00:36:05] Speaker 02:
Thank you.