[00:00:00] Speaker 00: Next case, Laura Sanchez versus Garland has been submitted on the briefs and record. [00:00:04] Speaker 00: So calling up for argument Martinez Diaz versus Garland. [00:00:42] Speaker 00: When you're ready, counsel. [00:01:01] Speaker 01: Good morning. [00:01:02] Speaker 01: May it please the court. [00:01:03] Speaker 01: My name is Carlos Cruz, and I represent the petitioner. [00:01:05] Speaker 01: Your honor, I reserve three minutes for rebuttal. [00:01:07] Speaker 00: All right, I'll try to help you out, but keep your eye on the clock as well. [00:01:11] Speaker 01: Thank you, and I appreciate that. [00:01:12] Speaker 01: Your Honor, the BA's decision should be reversed based on the following three reasons. [00:01:16] Speaker 01: First, the petitioner's right to do process in this case was violated. [00:01:20] Speaker 01: As the rap she used to determine or pre-terminate his application for cancellation of removal was unreliable, resulting in substantial prejudice. [00:01:29] Speaker 01: Second, substantial evidence not considered by the board. [00:01:32] Speaker 00: Would there be prejudice if the documents are inconclusive? [00:01:36] Speaker 01: Your honor, that wouldn't lead to substantial prejudice because the burden is on petitioner to establish that he was not convicted of that 1993 offense. [00:01:43] Speaker 01: The issue in this case is whether the use of that FBI rap sheet resulted in that substantial prejudice because the court found, in essence, through that document, the petitioner's evidence had not established [00:01:54] Speaker 01: by that preponderance of the evidence, that he was in fact eligible for cancellation of removal. [00:01:58] Speaker 01: So it's important to look at the actual document the court considered in assessing whether or not that document was permissible. [00:02:04] Speaker 00: Right, he would have been eligible but for the San Diego conviction. [00:02:09] Speaker 01: Your Honor, he would have been eligible but for the allegation that he was convicted of that offense in San Diego in 1995. [00:02:16] Speaker 02: And so what this- Between the fact that it was listed in the rap sheet. [00:02:20] Speaker 01: Exactly, Your Honor. [00:02:21] Speaker 01: So when we look at the rap sheet in this case, we'll look to the many inaccuracies that are contained in this rap sheet. [00:02:25] Speaker 01: Now, one primary inaccuracy is that the FBI rap sheet itself says that the FBI report is based on fingerprints and fingerprints only. [00:02:33] Speaker 01: The immigration judge herself says that in her decision in discrediting all the other evidence in this case regarding the petitioner's claim that he was not convicted. [00:02:41] Speaker 01: But if you look at the actual document itself, the entry for 1993, which is the entry at issue in this case, that entry says that no arrests received. [00:02:50] Speaker 01: No arrests received. [00:02:51] Speaker 01: So if there was no arrests received, no fingerprints were ever taken to show that this individual was arrested for this particular. [00:02:59] Speaker 03: I want to focus on precisely what the rap sheet says and doesn't say. [00:03:03] Speaker 03: Yes, sir. [00:03:03] Speaker 03: Because I think we now all agree that there's something in the record that suggests that fingerprints weren't taken. [00:03:08] Speaker 03: The thing from the California DOJ. [00:03:11] Speaker 03: Yes, sir. [00:03:12] Speaker 03: It does have a birth date. [00:03:15] Speaker 03: that matches your clients, correct? [00:03:17] Speaker 01: Certainly, yes, Your Honor. [00:03:18] Speaker 03: And it does have an alias which, and this is what I want to ask you about, everybody seems to assume in this case was an alias used by your client. [00:03:27] Speaker 03: You don't seem to contest that. [00:03:29] Speaker 01: Your Honor, it seems that there was an alias attached to the petitioner. [00:03:33] Speaker 01: We don't know where that alias came from because there's no reference to any other offense where that alias was used. [00:03:38] Speaker 03: The person who was convicted is listed in the rap sheet under not your client's name, but another name. [00:03:43] Speaker 01: Yes, Your Honor. [00:03:45] Speaker 01: So both the FBI rap sheet and the DOJ rap sheet provide the name under which the individual was arrested and then convicted in 1995. [00:03:51] Speaker 03: And that was not your client's name. [00:03:53] Speaker 01: And that is not his name, Your Honor. [00:03:54] Speaker 01: But the name does appear on the DOJ rap sheet as a soft-hit criteria and also as using the FBI rap sheet. [00:04:01] Speaker 03: No, I'm just trying to figure out what's in the record here. [00:04:04] Speaker 03: And so then you go [00:04:07] Speaker 03: your side, goes to the San Diego County Superior Court and you get some sort of document that says there's no record of a conviction of a person under the name on the rap sheet or under your client's name? [00:04:23] Speaker 01: Under both names, Your Honor. [00:04:24] Speaker 03: Under both your client's name and the name on the rap sheet. [00:04:28] Speaker 01: Any alias that was specifically listed in both the FBI rap sheet for that entry and it was also listed in the DOJ rap sheet as item number 11 [00:04:36] Speaker 01: which if you look at the first page of the DOJ rap sheet pertains to that name that was used when the individual was arrested and convicted for that offense. [00:04:43] Speaker 03: So what I'm trying to figure out is what evidence, if any, there is that your client [00:04:51] Speaker 03: use this name other than the rap sheet that says it's an alias of your client? [00:04:57] Speaker 01: There's absolutely no evidence because no other case in the FBI rap sheet or in the DOJ rap sheet have that name associated with the petitioner in this case. [00:05:07] Speaker 01: So that name appears in the rap sheet, but there's no other reference anywhere in the record, anywhere in this record. [00:05:12] Speaker 01: in both the FBI rap sheet offered by the government and the DOJ background checks that associates my client, the petitioner, with that name. [00:05:20] Speaker 01: Somehow that name appears in the rap sheet, but there is no way of us knowing. [00:05:25] Speaker 00: So you're saying that the name appearing alone has no evidentiary significance or value? [00:05:30] Speaker 01: Your Honor, the name has value because it appears on the rap sheet as a soft hit, and it also appears as the- Right, so it's a soft hit, and the government wasn't satisfied because there were many, many other aliases. [00:05:39] Speaker 00: They wanted that run. [00:05:41] Speaker 00: Let me ask you this. [00:05:42] Speaker 00: As I understand it, at the time of the hearing, you wanted to get a continuance to sort of run down these other issues to get a judicial clearance from San Diego as well. [00:05:52] Speaker 00: Have those efforts continued since that time? [00:05:55] Speaker 01: Those efforts have continued, Your Honor, but San Diego has only been able to offer a letter that says that there is absolutely no record for Mr. Martinez with his real name and the alias that appears particularly for this particular offense. [00:06:06] Speaker 00: Well, that's what you got and presented at the time of the hearing. [00:06:09] Speaker 00: Yes, Your Honor. [00:06:09] Speaker 00: But have you either gotten a judicial clearance or get a similar letter for all the other aliases that are associated with the petitioner? [00:06:17] Speaker 01: So the immediate answer is no, Your Honor, and that's for a couple of reasons, and if I may. [00:06:21] Speaker 01: The first reason is that the evidence at this point will be considered untimely on appeal to the board. [00:06:27] Speaker 00: You can file a motion to reopen. [00:06:29] Speaker 00: I think the IJ indicated that, OK, if you run down the leads in San Diego, if you can get a judicial clearance, then you file a motion to reopen. [00:06:38] Speaker 01: Certainly, Your Honor. [00:06:38] Speaker 01: So in that case, we either have to file an appeal within 30 days to the BIA or waive the appeal and file that motion within 90 days to the immigration judge, risking [00:06:46] Speaker 01: the opportunity the petitioner had to submit the appeal and further stay his removal from the United States. [00:06:51] Speaker 01: And something that's critically important to the petitioner is he had been removed from the United States previously on three prior occasions. [00:06:56] Speaker 01: Your Honor, one thing that I wanted to say that's important based on the point that you make about the alias, yes, there is information in the record about petitioner wanting to get [00:07:05] Speaker 01: a clearance letter for each and every alias listed in the DOJ rap sheet. [00:07:09] Speaker 01: They'll say that. [00:07:10] Speaker 01: And counsel does provide that that effort should be made. [00:07:13] Speaker 01: And the government also agrees that the effort should be made. [00:07:15] Speaker 01: My point to the court is that that wasn't necessary. [00:07:17] Speaker 01: And it wasn't necessary because the entry for 1993 specifically provides the name that was used when he was arrested. [00:07:25] Speaker 03: So there are no other entries for the other aliases? [00:07:27] Speaker 01: Absolutely. [00:07:28] Speaker 01: Are they the other? [00:07:29] Speaker 03: Let me ask a question. [00:07:30] Speaker 03: I want to ask your friend the same question. [00:07:33] Speaker 03: If the government just came in and said, we're not certain, but there seems to be some information that this person was convicted of a disqualifying crime, here's what we've got. [00:07:46] Speaker 03: It's the FBI rap sheet. [00:07:48] Speaker 03: It's not conclusive, but it's enough evidence for us to shift the burden to you. [00:07:52] Speaker 03: Do you agree with that? [00:07:54] Speaker 01: Absolutely. [00:07:55] Speaker 01: I do, yes. [00:07:55] Speaker 03: So now the question is, and I think the IJ says, well, the rap sheet's inconclusive. [00:08:01] Speaker 03: So you've got to now demonstrate that you don't have a disqualifying conviction. [00:08:08] Speaker 01: This doesn't say that the FBI rap sheet's inconclusive. [00:08:11] Speaker 01: The judge says that the FBI is based on fingerprints, and therefore, regrettably. [00:08:15] Speaker 03: Let's assume for a moment that we view it as just enough to trigger your obligation to respond. [00:08:21] Speaker 03: Your response is to produce the document that Judge Wynn is talking about, which is you've got something from the San Diego court that says there's no showing here, nothing in our records showing a conviction of this person [00:08:35] Speaker 03: at this time. [00:08:37] Speaker 01: Yes, Your Honor. [00:08:38] Speaker 03: What do we do with that? [00:08:40] Speaker 03: Do we find that no reasonable finder of fact could find you were the person, or do we find that it's evidence you submitted, but the IJ could reach a differing conclusion? [00:08:50] Speaker 01: Your Honor, I don't think you get that far. [00:08:52] Speaker 01: I think you look at the cases, Smith v. Garland, Rojas v. Garcia, that says that we look to the actual document that created that doubt. [00:08:58] Speaker 01: about petitioners' burden, about whether or not he was convicted of that offense. [00:09:02] Speaker 01: And it says clearly there that you look to see if there are reasons to cast doubt on the FBI rap sheet to decide whether or not there was a document that was sufficiently reliable. [00:09:13] Speaker 03: I think you're trying to answer my question, so I want to be clear of the answer. [00:09:16] Speaker 03: Your answer is that as long as you can cast doubt, [00:09:19] Speaker 03: on the accuracy of the FBI rap sheet, then the conviction can't be treated as disqualifying, or do you have to disprove? [00:09:29] Speaker 01: No, Your Honor. [00:09:31] Speaker 01: The first issue, of course, is whether or not we can cast doubt on the FBI rap sheet. [00:09:35] Speaker 01: There are several reasons here that you've noted yourself to cast doubt on the FBI rap sheet. [00:09:39] Speaker 01: The inaccuracies of the DOJ rap sheet, the letter from San Diego, [00:09:41] Speaker 01: and even the credible testimony. [00:09:43] Speaker 01: But at the end of the day, yes, the petitioner bears the burden of proving that he was not convicted of that offense. [00:09:48] Speaker 01: But this takes us to the point that I think is really critically important. [00:09:51] Speaker 01: The government itself concedes that the testimony alone in this case could have been sufficient [00:09:56] Speaker 01: credible testimony could have been sufficient for petitioner to meet his burden of establishing that he was not convicted of this offense. [00:10:03] Speaker 01: He testified that he had never been in San Diego. [00:10:05] Speaker 01: He had never been arrested in San Diego for that offense. [00:10:08] Speaker 01: And when you take his credible testimony with the certified letter from the Superior Court and the DOJ background, and then of course you cast this doubt on the FBI rap sheet, which was clearly inaccurate because it also contained other entries that did not pertain to this petitioner. [00:10:21] Speaker 01: Petitioner submits that he has satisfied his burden. [00:10:25] Speaker 03: This is where I still think we're missing each other. [00:10:29] Speaker 03: I'm not sure I disagree with you, but we're missing each other. [00:10:32] Speaker 03: Is it a legal burden or a factual burden? [00:10:35] Speaker 03: In other words, we're reviewing the I.J.' [00:10:37] Speaker 03: 's decision that you hadn't discharged the burden. [00:10:40] Speaker 03: So are we saying the evidence was such that no reasonable I.J. [00:10:44] Speaker 03: could reach that conclusion, or are we saying as a matter of law? [00:10:50] Speaker 01: Our position is, as a matter of law, the analysis in this case is unfairly prejudicial to the petitioner. [00:10:59] Speaker 01: Because if you look at the fact, if you consider this case from a factual standpoint, like in the Ochoa case, the Patel decision, and we say that the immigration judge simply made an error in making that factual determination. [00:11:12] Speaker 01: And this court is barred. [00:11:13] Speaker 01: from reviewing that decision. [00:11:15] Speaker 03: That's why I'm asking the question. [00:11:16] Speaker 01: And I understand that, Your Honor. [00:11:17] Speaker 01: This is why I'm providing you with this answer, that this has to do with a due process challenge. [00:11:22] Speaker 01: And even in the Ochoa case. [00:11:23] Speaker 03: So it would be a violation of due process on this evidence for the IJ to have reached that conclusion. [00:11:29] Speaker 01: To have relied on this particular document in finding the petitioner had failed to meet his burden. [00:11:35] Speaker 01: So the judge basically relies on this FBI rap sheet entirely. [00:11:39] Speaker 01: in deciding that petitioner failed to meet his burden despite the fact that she found him credible after he testified credibly, after she considered his demeanor, after she considered he never attempted to evade any questions. [00:11:50] Speaker 01: And despite that finding, and despite the DOJ rap sheet, and despite the fact that this particular entry is confirmed as one not being in the rap sheet, both for the FBI or the DOJ, as not one pertaining to fingerprints, [00:12:02] Speaker 01: clearly there was enough here for the immigration judge to find a petitioner had met his burden. [00:12:06] Speaker 01: So in this case, if the immigration judge erroneously used this rap sheet to, in essence, find a petitioner had not met his burden, the judge, in essence, violated his right to due process by relying on this document that was unreliable, which led to a substantially unfair result, resulting in substantial prejudice. [00:12:26] Speaker 01: Because but for this finding on the part of the immigration judge, petitioner would have been eligible. [00:12:30] Speaker 01: She found, in this case, [00:12:31] Speaker 01: that he had met the 10 years continuous physical presence requirement, that he has the requisite good moral character for that 10 year period, that his mother is a US citizen, mom is a dad's illegal resident, he has qualifying relatives for the required hardship that is needed in this case, but for this offense, unfortunately, he was not eligible for cancellation of removal. [00:12:51] Speaker 01: That is clear substantial prejudice in this case because a deprived petitioner of his one true application before the court to seek relief as a result of living here in this country as he was 15 years old, being a paraplegic man, being dependent solely on his parents who are elderly themselves to care for him as a result of that condition. [00:13:10] Speaker 01: And so prejudice, substantial prejudice is here and the due process violation committed by the immigration judge should not be ignored. [00:13:16] Speaker 02: So what are you asking us to do, send it back? [00:13:18] Speaker 01: Absolutely, Your Honor. [00:13:20] Speaker 02: And what will the I.J. [00:13:21] Speaker 02: then do? [00:13:22] Speaker 01: Your Honor, the immigration judge in this court finds pursuant to a Suate Oriana case that the government has waived and forfeited its right to that claims processing rule under Section 231A5 that the court has to then consider and provide petitioner with a full hearing on his cancellation. [00:13:41] Speaker 03: Well, why should we find [00:13:44] Speaker 03: anything about their inability to cite the claims processing rule. [00:13:50] Speaker 03: We can certainly find that it's not in front of us, but now do we have to find that they've waived their right in the agency to assert it if we send it back? [00:13:59] Speaker 01: I'm not sure why we should do that. [00:14:04] Speaker 01: waived and forfeit. [00:14:05] Speaker 01: And here's the problem with your question, and what's going to happen with the case. [00:14:08] Speaker 03: But don't you have to raise that argument in the agency, not to us? [00:14:12] Speaker 01: But the government has raised it for the first time on appeal to the court. [00:14:15] Speaker 01: They had filed a request for traditional. [00:14:16] Speaker 00: But if we send it back, you have a chance to make that argument below. [00:14:21] Speaker 00: And whether it wins or not, I don't think that's up to us. [00:14:24] Speaker 00: The agency would take a look at it. [00:14:25] Speaker 00: I know you wanted to save time, so I want to give you that reminder. [00:14:28] Speaker 01: And I appreciate that. [00:14:29] Speaker 01: Thank you very much, Your Honor. [00:14:38] Speaker 04: Thank you, Judge Wynn, and may it please the Court, Joseph Hardy for the Attorney General. [00:14:44] Speaker 04: This case just got very confused on oral argument there. [00:14:47] Speaker 04: The argument that petitioner raised with respect to cancellation of removal is not that the immigration judge denied due process by considering that FBI rapture. [00:14:56] Speaker 04: You look at the brief, the due process argument is that the board [00:15:00] Speaker 04: fell to consider the two arguments that petitioner raised on pages 12. [00:15:04] Speaker 03: However they're phrased, let me tell you what troubles me. [00:15:06] Speaker 04: Those are two completely different arguments. [00:15:07] Speaker 03: Well, there may be different arguments, but here's what troubles me. [00:15:12] Speaker 03: If this were a criminal case, and he was charged with having committed this previous crime, and the evidence was the evidence that we have in this case, we'd toss out the conviction in a minute. [00:15:27] Speaker 03: You've got a rap sheet that [00:15:30] Speaker 03: We know is not fingerprint-braced because there's evidence in the record that it's not. [00:15:36] Speaker 03: The San Diego court says we've got no record of this conviction. [00:15:40] Speaker 03: And Mr. Martinez testifies that I'm not that person. [00:15:47] Speaker 03: And the IJ found it incredible. [00:15:49] Speaker 03: So under these circumstances, whether you call it due process or [00:15:58] Speaker 03: an irrational decision, how can we find that he didn't? [00:16:03] Speaker 04: What more is he supposed to do? [00:16:10] Speaker 04: There's a difference between what petitioner raised before the board and what petitioner is raising to the court. [00:16:15] Speaker 03: I understand that argument. [00:16:16] Speaker 04: I specifically, you get that, right? [00:16:18] Speaker 04: Yeah, I understand that argument. [00:16:20] Speaker 03: Let's assume for a moment, put that argument aside. [00:16:24] Speaker 03: Let me finish. [00:16:25] Speaker 03: What troubles me in this case is not the specificity of arguments or the way they're phrased. [00:16:30] Speaker 03: It's just when I look at this, you've got almost nothing and they've got a lot. [00:16:35] Speaker 03: And so I'm trying to figure out what to do with this. [00:16:37] Speaker 04: Okay, this is what we do with it. [00:16:39] Speaker 04: You're factually incorrect as to the FBI rap sheet. [00:16:41] Speaker 04: The FBI rap sheet itself is fingerprint matched. [00:16:43] Speaker 04: That's what the immigration specifically found. [00:16:45] Speaker 04: That's why the immigration judge was willing to consider the FBI rap sheet. [00:16:49] Speaker 03: Well, but then did the immigration judge ignore the thing from the Department of Justice in California that said, we don't have fingerprints and the information we sent them is not fingerprint based? [00:17:00] Speaker 04: There's no such evidence that says we don't have fingerprints. [00:17:02] Speaker 04: The only document, look at page 300 of the record, right? [00:17:06] Speaker 04: Let's go to page 300 of the record. [00:17:08] Speaker 04: That's the document from the San Diego court that he got in, I believe, June 19th of 2023. [00:17:12] Speaker 03: Now, what about the thing from the California DOJ? [00:17:15] Speaker 04: The California DOJ? [00:17:17] Speaker 04: So that's the document that says no fingerprint, that it wasn't fingerprint matched. [00:17:21] Speaker 04: We're talking about the FBI rap sheet, right? [00:17:23] Speaker 04: That's been the whole crux of his case. [00:17:26] Speaker 04: You have to keep in mind, you're talking about a criminal case. [00:17:28] Speaker 04: This is an immigration civil case. [00:17:31] Speaker 04: You're not talking about removability. [00:17:33] Speaker 04: You're in the relief context, right? [00:17:34] Speaker 04: You've got to keep in mind Pareto versus Garland. [00:17:38] Speaker 04: The Supreme Court says that in this context, under the regulation, HCFR section 1240.8D, petitioner bears the burden of establishing his eligibility for relief. [00:17:50] Speaker 04: If the evidence establishes that one of the grounds of ineligibility for the relief, in this case cancellation of removal, [00:17:56] Speaker 04: that it may apply the burden shifts to petitioner to establish conclusive. [00:18:03] Speaker 03: I understand all that, and I'm still not sure we're engaging with each other on this. [00:18:08] Speaker 03: Take out everything else. [00:18:10] Speaker 03: You've got a rap sheet that says this gentleman was convicted in San Diego on such and such a date of such a crime. [00:18:16] Speaker 04: Which rap sheet? [00:18:17] Speaker 04: I'm sorry, which rap sheet are we talking about? [00:18:18] Speaker 04: Your FBI rap sheet. [00:18:20] Speaker 04: The FBI rap sheet, OK. [00:18:20] Speaker 03: On such and such a date. [00:18:22] Speaker 03: There was a person convicted on such and such a date [00:18:26] Speaker 03: of a crime whose name is not this person's name. [00:18:29] Speaker 03: The FBI rap sheet says, but it's one of his aliases. [00:18:35] Speaker 03: This person then goes to the San Diego court and says, there isn't any such conviction of the person under the rap sheet name on that date. [00:18:45] Speaker 04: It does not say that. [00:18:46] Speaker 03: That's what I'm getting. [00:18:47] Speaker 03: What does it say? [00:18:48] Speaker 04: Get page 300 of the record, Judge. [00:18:50] Speaker 03: Tell me what it says. [00:18:51] Speaker 04: It specifically says, let's look at page 300 of the record. [00:18:53] Speaker 04: It specifically says that no record was found, but it specifically notes that they only conducted, please note that only a criminal search of our electronic records was performed. [00:19:06] Speaker 04: Mind you, this was the San Diego Municipal Court, which has since been dissolved and been [00:19:10] Speaker 04: subsumed under the San Diego court. [00:19:12] Speaker 03: OK, but they've got something that says, we've looked and we can't find it. [00:19:15] Speaker 03: It says we've looked at our electronic records. [00:19:17] Speaker 03: It may not be conclusive. [00:19:18] Speaker 03: And then he testifies that I've never been there or convicted of the crime. [00:19:23] Speaker 03: And is he right in saying, is counsel right in saying that the IJ finds him credible? [00:19:29] Speaker 04: I think, and respectfully, I think you're missing [00:19:32] Speaker 03: I may be missing lots of things, but you still have to answer my question. [00:19:36] Speaker 03: Let me try to get you there. [00:19:38] Speaker 03: Does the IJ, well let me answer the question yes or no, does the IJ find him credible? [00:19:42] Speaker 04: Well, finding him credible doesn't mean that he meets his burden of proof of establishing eligibility. [00:19:49] Speaker 03: I'm not arguing. [00:19:50] Speaker 03: You maintain all legal arguments. [00:19:53] Speaker 03: You're not waving any legal. [00:19:54] Speaker 03: I'm just trying to get a factual determination made. [00:19:56] Speaker 03: The IJ does say, I find his testimony credible. [00:20:00] Speaker 03: She does. [00:20:01] Speaker 03: OK, so now we have somebody who credibly testifies that he's not been there and was never convicted of it, and a record which not conclusive doesn't support the FBI rap sheet. [00:20:12] Speaker 03: Why isn't that enough? [00:20:14] Speaker 04: Judge Harvitz, because you have to consider the burden. [00:20:16] Speaker 04: One, yeah, well, overall, you've got to consider the burden of proof. [00:20:19] Speaker 04: The burden of proof in establishing eligibility. [00:20:21] Speaker 00: Let me ask this another way, counsel, because I think we're all kind of struggling, puzzling over the same area. [00:20:27] Speaker 00: So he says, I've never been to San Diego. [00:20:29] Speaker 00: That's not me. [00:20:30] Speaker 00: It's not [00:20:32] Speaker 00: Surprisingly to some people, it's not that uncommon actually to have other people using your identity and then the rap sheet pops up. [00:20:40] Speaker 00: That's the whole thing of judicial clearance, right? [00:20:42] Speaker 00: That's what happened in LA and he got a judicial clearance saying that that's not the person. [00:20:47] Speaker 00: If setting aside the burden of proof, we recognize which he has on cancellation of removal. [00:20:52] Speaker 00: If you had to show that this is the individual connected with that conviction in San Diego, how would you do it? [00:20:59] Speaker 04: The way I would do it, Your Honor, is to look at the documents that you have in the record or look at the facts that you have in the record. [00:21:05] Speaker 00: Right. [00:21:05] Speaker 00: So in this case, you have the FBI rap sheet. [00:21:07] Speaker 00: You're saying that standing alone shows that he's the person? [00:21:10] Speaker 04: It doesn't have to. [00:21:11] Speaker 04: You have to keep in mind the burden of proof. [00:21:13] Speaker 00: I know we say ignore the burden of proof. [00:21:15] Speaker 00: Let me stop you right there, because I'm trying to get to [00:21:19] Speaker 00: I think an issue that Judge Hurwitz and I are both struggling with. [00:21:22] Speaker 00: Let's set aside the burden of proof. [00:21:25] Speaker 00: If you had to show that that's the person that was arrested in San Diego, you wouldn't be able to do it with just the FBI rap sheet, right? [00:21:32] Speaker 00: And so what you're saying is that, first of all, if you concede that that's not enough, then your next argument is, but we don't have the burden. [00:21:40] Speaker 00: The burden is his, and he didn't get the judicial clearance. [00:21:43] Speaker 00: Do I have that right? [00:21:45] Speaker 04: I am not here telling you that the FBI rap sheet establishes anything. [00:21:49] Speaker 04: And it's easy to say, let's ignore the burden of proof. [00:21:52] Speaker 00: You can't ignore it in this case. [00:21:53] Speaker 00: I just want to make sure that we're on the same page in terms of the FBI rap sheet in this case not being enough. [00:21:59] Speaker 00: And so that's why the testimony has some significance. [00:22:03] Speaker 00: He's saying, I wasn't in San Diego. [00:22:06] Speaker 00: that wasn't me, I was never arrested for that offense. [00:22:09] Speaker 00: So then the question then becomes if the FBI rap sheet is not enough, is his testimony, which is presumed to be credible, enough to overcome whatever inconclusive evidentiary value that the FBI rap sheet really has? [00:22:24] Speaker 04: It is not, because the Supreme Court in Ming Dai versus, or Garland versus Ming Dai specifically recognizes that the burden of proof [00:22:32] Speaker 02: What you're saying is that his testimony is not proof of anything. [00:22:37] Speaker 04: His testimony is not proof of anything. [00:22:39] Speaker 02: Why not? [00:22:40] Speaker 02: Witnesses can take the stand and tell their story and if they're believable, you can accept it. [00:22:47] Speaker 04: I'm not saying that his testimony is not anything. [00:22:50] Speaker 04: I'm saying that his testimony is not enough. [00:22:53] Speaker 02: It's not enough because there's the FBI rap sheet. [00:22:58] Speaker 04: You have to know that that's not the only thing. [00:23:00] Speaker 04: Okay, what else? [00:23:01] Speaker 04: It's because as the Supreme Court pointed out... No, no, no, no. [00:23:05] Speaker 04: What else? [00:23:06] Speaker 02: Because it is credible... What I understand your argument to be is that [00:23:11] Speaker 02: I haven't even said an argument. [00:23:13] Speaker 02: Well, but your statements here, whatever it is you're making. [00:23:17] Speaker 04: I haven't even been able to finish the point why I said the testimony is not enough, because the burden of proof statute, 8 U.S.C. [00:23:23] Speaker 04: 1229 A.C. [00:23:23] Speaker 04: 4B, specifically points out that in order to meet your burden of proof, the testimony has to be credible, it has to be persuasive, and it has to refer to specific facts in the record. [00:23:35] Speaker 02: So what you're saying is, okay, it was credible. [00:23:38] Speaker 02: It's just not persuasive. [00:23:39] Speaker 04: It's because it's not persuasive. [00:23:40] Speaker 04: And that's what the immigration judge found in this case. [00:23:43] Speaker 04: And so the FBI rap sheet, to the point that I've been trying to make is, keeping the burden of proof in mind, the question here is not whether the FBI rap sheet versus his testimony. [00:23:58] Speaker 04: The regulation specifically points out that if a ground of ineligibility may apply, if the evidence establishes that a ground may apply, it shifts the burden to petitioner to conclusively establish that it doesn't apply. [00:24:11] Speaker 04: So he bears the burden to conclusively establish that he is not the person who was convicted of the 1995 offense. [00:24:18] Speaker 03: So how does he conclusively establish that? [00:24:22] Speaker 03: Other than by credibly testifying, the IJ says, I believe you. [00:24:25] Speaker 03: that you weren't in San Diego and you're not this person convicted. [00:24:29] Speaker 03: And producing, perhaps not a conclusive, but at least a record from the court that there's no record of this person being convicted on that date. [00:24:37] Speaker 03: What else is he supposed to do? [00:24:38] Speaker 03: Is he supposed to bring in the Bishop of San Diego to testify that he was with him in Hawaii on that day? [00:24:44] Speaker 04: So for one, he could have persuasively testified. [00:24:47] Speaker 00: But I mean, you could have submitted, like, the document that's- There's no finding of unpersuasiveness. [00:24:51] Speaker 00: It's just that I.J.' [00:24:52] Speaker 00: 's analysis appears to be, OK, he testified. [00:24:56] Speaker 00: He's credible. [00:24:58] Speaker 00: So he is to be believed. [00:25:00] Speaker 00: But we've got this document here. [00:25:03] Speaker 00: It's inconclusive. [00:25:04] Speaker 00: So therefore, I find that he hasn't- You mean the FBI rap sheet? [00:25:08] Speaker 04: Or which document? [00:25:09] Speaker 00: The FBI rap sheet. [00:25:10] Speaker 04: The FBI rap sheet. [00:25:10] Speaker 04: So this is what the immigration judge did in this case. [00:25:14] Speaker 04: No one doubts that there is a possibility that there is a 95 conviction. [00:25:22] Speaker 04: No one doubts that there's a possibility he's the person convicted of that 1995 offense. [00:25:27] Speaker 04: And Petitioner, if you bear in mind, is the person who actually brought that conviction up. [00:25:33] Speaker 03: Right, so I'm with you so far. [00:25:35] Speaker 03: And then now the burden shifts to Harry. [00:25:36] Speaker 03: So the burden shifts. [00:25:37] Speaker 03: And he takes the stand and says, wasn't me, wasn't there, never did it. [00:25:41] Speaker 03: All right, Jay says, I believe you. [00:25:42] Speaker 03: You're credible. [00:25:43] Speaker 03: He then produces a piece of documentary evidence. [00:25:47] Speaker 03: I can't get conclusive evidence from the court because their records aren't terrific, but they can't find any record of this. [00:25:53] Speaker 03: So let's assume for a moment that he's actually telling the truth. [00:25:58] Speaker 03: What else is he supposed to do? [00:26:00] Speaker 03: What other thing can he do to demonstrate that it wasn't him other than to testify credibly that it wasn't him and to show that there's no record of it being him? [00:26:09] Speaker 04: I think what you're bringing up is exactly what the Supreme Court, is the policy concern that the immigration, excuse me, that the Supreme Court addressed in Ming Dat. [00:26:18] Speaker 04: And it was actually brought up by the dissent in that case. [00:26:21] Speaker 04: And the majority in that case point out, we recognize that states often, as California as any other state, may not have the best record keeping [00:26:32] Speaker 04: And bear in mind that this was a misdemeanor offense, right? [00:26:38] Speaker 03: So I agree with you that the absence of the record is not enough to have made his burden. [00:26:44] Speaker 03: But I'm still struggling with this, and I'm still not sure I've heard your response to it. [00:26:49] Speaker 03: He says, he takes the stand and says, [00:26:52] Speaker 03: This wasn't me. [00:26:53] Speaker 03: Never been in that city. [00:26:55] Speaker 03: And the IJ, as opposed to saying, I don't believe you, says, I find you credible. [00:27:00] Speaker 03: So under those circumstances, if he doesn't meet his burden of proof with those two pieces of evidence, [00:27:08] Speaker 03: I'm not sure how he could ever meet his burden of proof. [00:27:11] Speaker 04: And that may well be the answer. [00:27:14] Speaker 03: Then wouldn't it violate due process if it's a burden of proof that you could never meet? [00:27:19] Speaker 04: Yes, that would not violate due process. [00:27:21] Speaker 04: I think that's something that the Supreme Court pointed out and paraded. [00:27:25] Speaker 04: It may well be that the person can never meet the [00:27:27] Speaker 04: their burden. [00:27:28] Speaker 04: It may well be that the documents, I think California government code 68152C7. [00:27:34] Speaker 04: This is a misdemeanor offense, right? [00:27:36] Speaker 04: After five years, California law allows for the court to destroy the records. [00:27:42] Speaker 03: It may well be that the records were destroyed. [00:27:44] Speaker 03: Which is why I think the letter from the court isn't conclusive. [00:27:48] Speaker 03: But what I'm still struggling with in this case is the IJS says, I believe your testimony. [00:27:54] Speaker 03: And so we have a case where the IJ believes his testimony that it's not him. [00:27:58] Speaker 04: The IJ? [00:27:59] Speaker 03: And he wasn't there. [00:28:00] Speaker 03: And yet you're saying he didn't meet his burden. [00:28:03] Speaker 03: And I'm trying to figure out whether anybody could ever meet a burden. [00:28:06] Speaker 04: Credibility doesn't go to whether what the person says is the truth. [00:28:11] Speaker 04: The credibility is simply, the IJ finds him credible. [00:28:14] Speaker 04: I believe you subjectively believe that you are not the person convicted of that 1995 offense. [00:28:19] Speaker 04: The Supreme Court talks about that in Ming Dai. [00:28:23] Speaker 04: That doesn't mean that what you're saying is true. [00:28:26] Speaker 04: Mind you, he says that he has never been to San Diego. [00:28:28] Speaker 04: We know that's a lie, because he's been to San Diego multiple times. [00:28:32] Speaker 04: Each time he's come into the United States, he's come in through San Ysidro. [00:28:35] Speaker 04: He specifically says on page 143 of the record that I've [00:28:41] Speaker 04: uh... excuse me that he says on page one one forty three of the record that uh... uh... his memory with respect to his nineteen ninety five nineteen ninety offenses was not good so the immigration judge has all this record the immigration judge didn't have to find that what he's saying is objectively true let me ask you this before you run out of time completely can you briefly address the withholding of removal claim because the IJ did specifically find him to be exceptionally vulnerable [00:29:08] Speaker 00: But then the nice relief. [00:29:12] Speaker 04: So vulnerable, the immigration judge finds. [00:29:14] Speaker 04: So mind you, Petitioner doesn't challenge, as we point out in the brief, the no nexus finding. [00:29:22] Speaker 04: He argues that the two robberies he experienced at some point before September 1986 when he came into the country [00:29:30] Speaker 04: that they did rise to persecution. [00:29:32] Speaker 04: And then to the extent that he says anything about nexus, he says that the immigration judge did not complete its analysis with respect to the cognizability of his group of Salvadoran paraplegic men. [00:29:43] Speaker 00: Assuming it's preserved. [00:29:45] Speaker 04: And so assuming that it's raised, what petitioner claims that he fears, it's a few things, but they're interrelated. [00:29:52] Speaker 04: If he goes back, he's afraid of discrimination. [00:29:55] Speaker 04: If he goes back, he's not going to have the physical assistance that he has from his parents, and that he's afraid that he's not going to have the level of medical care that he has here in the Los Angeles area. [00:30:04] Speaker 00: But that he would be vulnerable to being targeted for violence. [00:30:07] Speaker 04: And that he would be vulnerable, but he would have to point out that what may happen to him rises to the level of persecution. [00:30:13] Speaker 04: There's no indication that what happens is going to rise to the level of persecution. [00:30:18] Speaker 04: He simply says, discrimination. [00:30:20] Speaker 04: And if you look, he says that if you look at the country conditions evidence, it says that the Salvadoran government does not have resources and controls in place in order for people with disabilities to be able to file a discrimination complaint. [00:30:35] Speaker 04: Not about a persecution complaint. [00:30:36] Speaker 04: He doesn't say that [00:30:38] Speaker 04: the government is the government, or that anyone is going to actually persecute him. [00:30:44] Speaker 04: He's just afraid of, ultimately, discrimination. [00:30:47] Speaker 04: And that's kind of the same thing. [00:30:48] Speaker 04: Let me ask you this. [00:30:49] Speaker 02: There's a lot going on here in this case. [00:30:54] Speaker 02: Is there any other way which you could resolve the matter, like the mediation or something? [00:31:02] Speaker 02: There are issues here. [00:31:04] Speaker 02: This is just not like a slam dunk one way or the other. [00:31:09] Speaker 04: For one, I think there appears to be misunderstanding as to the facts of this case, as to what was argued below, what was argued to the board, and what was argued to the DEA. [00:31:17] Speaker 00: Well, you don't have to make a commitment now. [00:31:19] Speaker 00: We're over that. [00:31:20] Speaker 00: You don't have to make a commitment now. [00:31:22] Speaker 00: But as you know, we have a fairly robust mediation program. [00:31:25] Speaker 00: So perhaps after the hearing, the parties can confer and tell us [00:31:30] Speaker 04: This is not going to be something that I'm going to push myself, but if the court wants to put this case in mediation to give petitioner time to reach out to DHS to see what they want to do, I do understand the equities in this case given its circumstances, but if petitioner wants to do that, I am perfectly fine to put it in mediation for a time. [00:31:51] Speaker 04: and let him explore that avenue. [00:31:53] Speaker 04: I would point out that I suspect the reason why this was put in regular proceedings versus the DHS reinstating his order was they probably looked at his circumstances and said, well, let's give him an opportunity at a minimum to at least pursue withholding and protection under the cat and full proceedings versus if it's a reinstatement case, then you got to go through the truncated rules as far as [00:32:18] Speaker 04: reasonable fair proceeding. [00:32:19] Speaker 04: So he has had a measure of grace from DHS, but I'm certainly not against. [00:32:26] Speaker 03: I know we're extending the time, but I do want to ask you about that. [00:32:28] Speaker 03: Let's assume that we don't treat on appeal or in this petition your argument about the reinstated order, because it's not part of the record. [00:32:38] Speaker 03: It wasn't before the board. [00:32:41] Speaker 03: What happens under that reinstated order, in your view? [00:32:46] Speaker 03: In other words, let's assume that we agreed with you that we should deny this petition for review. [00:32:55] Speaker 04: What then happens? [00:32:55] Speaker 04: There are three parts to reinstate. [00:32:57] Speaker 04: There are three sections, I would say, to the reinstatement order. [00:33:01] Speaker 04: There's the initial part where DHS reinstates the order, gives them the authority to reinstate the order. [00:33:08] Speaker 04: There's the part about the claims processing rule with respect to reopening. [00:33:13] Speaker 04: And then there's the part about the statutory eligibility for discretionary relief. [00:33:19] Speaker 04: As it applies to this case, that would be cancellation of removal. [00:33:22] Speaker 04: I do not doubt that DHS has the discretion to decide, like I said, whether to put someone in 240 proceedings or to reinstate under 240. [00:33:32] Speaker 03: So I think you mentioned what happens is DHS decides. [00:33:35] Speaker 04: DHS, yes. [00:33:36] Speaker 04: DHS decides, but it may well be that it's a difference between what DHS can decide as far as which proceedings to put him in. [00:33:45] Speaker 04: The statute is the statute as far as what it says about a person's eligibility. [00:33:48] Speaker 03: So whatever proceedings he's placed in, can he then make his cancellation argument without respect to eligibility, or is he going to be ineligible because of this conviction? [00:34:00] Speaker 04: Don't be confused by what I'm saying. [00:34:01] Speaker 04: DHS has the discretion as far as which proceedings to put him in. [00:34:05] Speaker 04: The statute is what it says. [00:34:09] Speaker 03: Maybe I am confused. [00:34:10] Speaker 03: I'm still trying to figure out if we deny the petition, but there is a reinstated order of removal, what are his remedies [00:34:18] Speaker 03: under that circumstance. [00:34:19] Speaker 04: His remedies in terms of which type of relief are you talking about, cancellation of removal in particular? [00:34:23] Speaker 03: Yeah, he wants to argue that there's a reinstated order, I'd like it canceled. [00:34:27] Speaker 04: So as we point out in the brief and the document and the 28J letter, if he goes back, the statute says what it says, he's ineligible for cancellation of removal. [00:34:39] Speaker 04: That is not a claims processing rule. [00:34:42] Speaker 04: I fully agree that the reopening bar is a bar on the BIA's or the IJ's adjudicatory authority over reopening. [00:34:53] Speaker 04: But the cancellation of removal part, the statute says what it says. [00:34:57] Speaker 04: He's ineligible for discretionary. [00:34:59] Speaker 03: So if we were to turn this down, [00:35:00] Speaker 03: The fact that there's a reinstated order would make no difference in his ability to get canceled. [00:35:05] Speaker 04: So if we were to send this, if you were to send this back, and that's the whole point why I bring up the reinstatement bar at all. [00:35:10] Speaker 04: I'm not trying to get you here to decide that issue itself. [00:35:14] Speaker 04: I'm pointing out that if it goes back, no matter what, there's no amount of claims processing or... No, we understand unless he can somehow get the documents from San Diego and do reopening as the I.J. [00:35:26] Speaker 00: suggested, which he may never be able to do. [00:35:28] Speaker 04: He may never be able to do, and he may well be able to do, but he's going to go back and he's going to find that no matter what, he's ineligible for cancellation or removal. [00:35:35] Speaker 03: Unless the agency buys his waiver argument, which is not in front of us right now. [00:35:41] Speaker 04: If they think that the bar on discretionary relief, like the bar on reopening, is a claims processing rule, but it may well be that even if it goes back, there's nothing that says that, I mean, this case is still pending, right? [00:35:54] Speaker 04: You're not talking about a law of the case [00:35:57] Speaker 04: type of situation. [00:35:58] Speaker 04: It can go back and DHS can raise the bar, the immigration judge, which, to be honest, you should have done while it was below, you should have raised the bar. [00:36:06] Speaker 04: That could have saved four years of, or from August 2017 to September 2019, that could have saved two years of sending Mr. Cruz and company back to the San Diego court to try to get some documentation about that 95%. [00:36:20] Speaker 00: We've taken you well over time, but I appreciate your argument. [00:36:23] Speaker 00: Thank you. [00:36:30] Speaker 01: Your honor, I'll tell you exactly what's going to happen if this case gets remanded back to the BIA. [00:36:34] Speaker 01: If the case goes back to the BIA, the government has the option to try to seek to reinstate their prior removal order. [00:36:40] Speaker 01: Once they try to seek to reinstate their prior removal order, they're going to move to dismiss the NTA as improvidently issued. [00:36:46] Speaker 01: They're going to reinstate the order, and the petitioner will be removed. [00:36:48] Speaker 01: And this is why the decision in the Suwato-Royana case is so important, because it deals with the claims processing rule, and it clearly says the government, obviously, or that that rule can be waived and forfeited. [00:37:00] Speaker 01: It's very similar to what the BIA did in the Meadow of Fernandez case, where the court found that unless the immigrant raised an objection to the defective NTA, another claims processing rule, that the immigrant, undocumented immigrant, often not represented by counsel or adequate counsel, waives [00:37:14] Speaker 01: and forfeits the right to make that claim processing rule. [00:37:18] Speaker 01: If we're going to hold an immigrant to that standard of raising a timely objection to that claims processing rule, then of course we should hold the government to the same standard of raising that claim processing rule in a timely fashion to promote the orderly progress of those removal proceedings. [00:37:33] Speaker 01: It would be utterly unjust and unfair to allow the government on remand [00:37:38] Speaker 01: to move to reinstate the proceedings and completely ignore the NTA that was issued in this case now nine years ago. [00:37:44] Speaker 01: And so it leaves it at the mercy of DHS. [00:37:47] Speaker 01: And here's another point that I think is important that government fails to really explain to the court. [00:37:52] Speaker 01: There is a difference between 42B requirements for statutory eligibility in this client claim processing rule of 1231A5. [00:38:01] Speaker 01: In a section 240 a B provides four requirements the ten years good more character certain crimes cannot exist and the required hardship Those are the requirements. [00:38:11] Speaker 01: That's what the judge looked at in ordinary removal proceedings That's what we look to the judge wasn't required to look at section 241 a 5231 a 5 under the AUSC wasn't required to do so the government decided to file a charge to place this first person back in ordinary proceedings the judge has [00:38:28] Speaker 01: absolutely nothing to do with the way the government charges this case. [00:38:31] Speaker 01: And so once they decided to place the individual in those removal proceedings, all the court is looking at are the requirements at 42B1. [00:38:39] Speaker 01: And yes, this particular petitioner was credible. [00:38:42] Speaker 01: He said he wasn't there. [00:38:43] Speaker 01: The court believed him. [00:38:44] Speaker 01: But for the use of this unreliable FBI rap sheet, petitioner would have shown that he was not arrested or convicted of that offense in 1995. [00:38:54] Speaker 01: And for those reasons, Your Honor, I respectfully request remand. [00:38:57] Speaker 00: Sorry to interrupt. [00:38:58] Speaker 00: You're over time. [00:38:59] Speaker 00: And I'm not sure that that is a winning issue for you, because you do ultimately bear the burden. [00:39:04] Speaker 00: But given the many complicated issues in this case, it sounds like the government is willing to at least engage in a discussion to see if this case could be settled outside the court process. [00:39:17] Speaker 00: So I'm happy to hold our ruling, whatever they may be, for [00:39:23] Speaker 00: a couple of weeks, and the party should confer and file your positions regarding mediation with the court. [00:39:29] Speaker 01: Understood, Your Honor. [00:39:30] Speaker 01: And thank you for the opportunity. [00:39:31] Speaker 00: Thank you. [00:39:32] Speaker 01: Your Honor. [00:39:32] Speaker 01: Thank you. [00:39:33] Speaker 00: All right. [00:39:34] Speaker 00: The matter is submitted. [00:39:35] Speaker 00: We thank you both for your arguments.