[00:00:00] Speaker 00:
Good morning, everyone.

[00:00:03] Speaker 00:
Judge Tashima is joining us.

[00:00:07] Speaker 00:
By videos, I want to make sure that he can see and hear us.

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Judge Tashima?

[00:00:11] Speaker 04:
Yes, I can.

[00:00:12] Speaker 04:
Thank you.

[00:00:14] Speaker 00:
Great.

[00:00:16] Speaker 00:
Well, our panel welcomes you to the Portland Courthouse.

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I'll be calling the cases in the order that they're listed on the calendar before calling the first case up for argument.

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There are a number of matters that have been submitted on the briefs and record, so I'll just state them for the record.

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The first one is Dambook versus O'Malley, Deshawn versus O'Malley,

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Santos Cruz Chable versus Garland, and United States versus O'Neill.

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So the first case up for argument.

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In person, welcome, is Nolasco Rodriguez v. Garland.

[00:00:51] Speaker 02:
Good morning, Your Honor.

[00:00:52] Speaker 02:
David Chamblou for petitioner.

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May it please the court.

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I'm going to reserve two minutes for rebuttal.

[00:00:58] Speaker 00:
All right.

[00:00:58] Speaker 00:
Thank you.

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Your time's on the clock.

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I'll try to help you, but please keep an eye on that as well.

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I will do my best.

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Here we are, Judge.

[00:01:06] Speaker 02:
Once again, trying to understand the meaning of a CIMT.

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I think we're closer to understanding the meaning of life versus this CIMT.

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I do want to start with the government's 28-J letter, because I think that's probably on everybody's mind.

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What is the standard here?

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Chevron has been repealed.

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The Skidmore difference is basically advisory.

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And I would say that that doesn't even apply here.

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What's peculiar about this case is the immigration judge's decision.

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You have a written decision, and the court can find that on AR50.

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And then two, three days later, there's an- Let me have you back up.

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I'm sorry for interrupting.

[00:01:49] Speaker 00:
Sure.

[00:01:50] Speaker 00:
So no more Chevron in this low per bright world.

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So what's the standard then?

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Is it Skidmore?

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It's not Skidmore.

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And I'll tell you why it's not Skidmore.

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When you look at the agency in this case, how much expertise they have to interpret criminal laws and laws of the state of Oregon criminal laws, it's clear they're not.

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They have adopted and created at a whole cloth this protected class, pregnant women, when even the Oregon legislature did not enact this law.

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to protect pregnant women.

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This law that's before this court on the assault issue was created to protect fetuses.

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If they had done their research, if the IJ had done their research, if the BIA had done their research, they would have found out.

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Why that is.

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There's an old Persian proverb, which goes like this.

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You can't be a bowl hotter than the soup.

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And that's exactly what this agency has done.

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They're creating a protective class that wasn't even protected in the state of Oregon.

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Having said that, when you look at the judge's decision here,

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The court finds that the petitioner is not entitled to apply for cancellation and removal for a non-ALPR as a matter of law, that he's convicted of the CIMT.

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then in an oral decision goes on to say that he's not eligible for cancellation of removal because he committed a crime constituting domestic violence.

[00:03:31] Speaker 02:
Yet the same judge in his oral decision says that he can't find that this was a crime constituting domestic violence because the mens rea or the mental element was recklessness.

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You can't have it both ways.

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And if the court looks at the list of statutory bars when it comes to good moral character under Section 101F of the INA, the only thing that seems to apply is if the person committed or was convicted of a CIMT.

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So this notion that there was some waiver here because that specifically was raised doesn't apply here.

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Because imagine a world where if this court finds on a de novo review that this crime was not a CIMT, that the analysis ends there and the case doesn't go back.

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How would that work?

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There are no bars, criminal bars, to applying for non-cancellation or removal for a crime constituting domestic violence.

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It doesn't exist.

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So if the judge is saying that the petitioner is not eligible for cancellation or removal because he was convicted of a CIMT,

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Yet he's not eligible to apply for the same relief because he committed a crime constituting domestic violence.

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But in the same written decision, it says he can't apply that.

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He can't go down that road.

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I think that cancels that argument out.

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There is no waiver here, Your Honor.

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If the court finds here on de novo review this crime was not a CIMT, this case goes back on its merits.

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And that's really important.

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There was no trial here.

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The AR, the court gets a lot of ARs, 1,000 pages, 2,000 pages.

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A lot of that is because there was a trial.

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That did not happen here.

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So this judge, without hearing testimony, without hearing the reasons from the petitioner why he committed this, the facts and circumstances, outright said this was a domestic violence crime.

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You lose.

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no merits.

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So if the court grants this petition, this case goes back on its merits.

[00:05:57] Speaker 00:
Well, in the categorical world that we're living in, we don't look at the merits.

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And so the peak at the charging documents is just about the most that we can do.

[00:06:13] Speaker 00:
So your argument is that it's not a crime of mortitude because what?

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It's the recklessness of mental state?

[00:06:20] Speaker 02:
Absolutely.

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The mens reo, the mental state, and the line of cases that this court has made it clear is that the recklessness when it comes to assaults does not constitute a CIMT.

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It is absolutely clear.

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the petitioner, including thousands of other people, including lawyers who give advice, including me, give advice to clients and work on cases to reduce the mens reo to recklessness.

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So to come in and now say, oh, no, no, no.

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Recklessness plus the fact that the victim was pregnant now is a CIMT.

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Now that is enhanced.

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Now that is an aggravating factor.

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When you look at the sentencing guidelines in Oregon, and here's the other thing why Skidmore doesn't apply, they completely, complete disregard for the sentencing scheme and the maximum term for crimes in Oregon.

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No discussion.

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That shows the agency has no clue what they're doing when it comes to that.

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The petitioner could not have gone to prison for five years.

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The maximum that he would have served, I've talked about that in my brief, and I brought the little tic-tac-toe chart, and I'm sure the court has seen this.

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This is the Oregon Sentencing Guidelines.

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For felonies, based on your historical, your background on how many crimes you committed and the crime seriousness, that determines the punishment.

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Not what the statute said.

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This controls.

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There was no discussion about that.

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So somehow, the IJ and the BIA has made it that if the victim is pregnant, it's an aggravating factor, so the person can be punished more.

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That's further from the truth.

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The most the petitioner would have received here was a 90-day jail sentence, mandatory three years probation.

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Now, I'm saying that.

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The court could have looked at the judgment of conviction that's in the record at AR 196.

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It clearly says right there, severity classification number one.

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is the sixth.

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Criminal history is i, which is minimal.

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That determines the sentence.

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The circuit court judge that sentenced the petitioner could not have gone beyond what the sentencing guidelines allows.

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And there's case law from this court.

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This is nothing new.

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It had to do with the Washington state sentencing guidelines, and I've cited that in my brief.

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So I'm going to ask the court

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to reverse the IJ and the BIA, find that this is not a CIMT because of the men's radio.

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And the fact that the victim was pregnant doesn't somehow elevate that to a CIMT, because Oregon has clearly stated that they were doing that to protect fetuses.

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Because a woman was killed, the fetus was cut out, and the legislature changed the statute to reflect that.

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The IJ and the BIA did not do that.

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They are not versed in this area.

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They didn't even make an attempt.

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At least in a matter of Wu, they looked at California law.

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They actually looked at California state law.

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None of that was done here.

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The IJ said, you know, I feel like we're going to just start a protective class.

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We're going to piggyback on a reckless mens reo.

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And here we are.

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It's a CIMT.

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And what does the BIA do?

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Basically, rubber stamps it and says, yeah, that's correct.

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That's accurate.

[00:09:57] Speaker 00:
We're running out of time.

[00:09:58] Speaker 00:
But before you sit down, let me see if Judge Hashima has any questions.

[00:10:01] Speaker 00:
Judge Hashima?

[00:10:02] Speaker 04:
No, I'm fine.

[00:10:03] Speaker 04:
Thank you.

[00:10:04] Speaker 04:
Thank you, Ronnie.

[00:10:18] Speaker 03:
Good morning.

[00:10:19] Speaker 03:
May it please the court?

[00:10:20] Speaker 03:
Aaron Nelson for the respondent, the attorney general.

[00:10:26] Speaker 03:
Your honors, I understand the intense interest in whether the agency decision here properly found that petitioner's criminal conviction was a CIMT.

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But I would be remiss if I didn't reiterate the position that we've taken in our brief that

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The requirement of showing good moral character is a finding that the immigration judge made and that petitioner failed to argue to the board.

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that the board found had been waived, that the opening brief here, petitioner has never used the words good moral character.

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In response to our brief, which the first issue that we say ends the petition, which is the fact that petitioner has now waived and failed to exhaust good moral character, there was no reply brief.

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And there was no answer to our 28J in which we say again that we don't have to enter the world of post-Chevron because this case and petition can be dismissed.

[00:11:33] Speaker 01:
On the waiver issue, counsel, what do we do with the fact that the IJ based their good moral character decision on the fact that there was a CIMT conviction?

[00:11:47] Speaker 03:
I appreciate that the immigration judge cited 1101 F3, I believe, which is basically having been convicted of a CIMT.

[00:12:01] Speaker 03:
But Your Honor's question is the first time that the government, as the respondent, has been posed with

[00:12:08] Speaker 03:
with that issue.

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As the respondent, as the APLE, our obligation is to defend the agency decision and answer petitioner's claims in his or her brief.

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When the litigation history here indicates that petitioner, through counsel,

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as I mentioned, never uttered the words or used the words good moral character.

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It's almost asking us, it's almost like a burden shifting that we have to anticipate that petitioner, well, what he meant when he engaged the CIMT, he meant to also include.

[00:12:48] Speaker 01:
But these are stand…

[00:12:49] Speaker 01:
the way the BIA did address the merits of the question of whether the crime constituted a CIMT and you also dealt with that in the brief and that is ultimately the same legal issue for both the CIMT finding and the good moral character finding.

[00:13:05] Speaker 01:
So what's the prejudice to the government here?

[00:13:08] Speaker 03:
Well, because the cancellation statute has four elements or four requirements, and they're standalone, and, you know, I would just repeat that if the government had been told by petitioners' counsel at any stage, by the way,

[00:13:25] Speaker 03:
The question that you raised, Your Honor, by the way, the immigration judge found 1101 F3 as knocking out his ability to show good moral character.

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Our entire brief deals with CIMT, therefore we've dealt with both, but we just didn't have that.

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And despite the fact that the board put Petitioner on notice, despite the fact that we

[00:13:51] Speaker 03:
in our opening brief put a petitioner on notice that that has not been raised.

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I think that the petition can be dismissed or denied based on that basis.

[00:14:01] Speaker 03:
But I do appreciate that.

[00:14:02] Speaker 05:
Excuse me.

[00:14:03] Speaker 05:
When you say it can be dismissed on that basis, even assuming that's true, that's not mandatory, is it?

[00:14:12] Speaker 05:
On that part, in other words, don't we still have the discretion to consider this issue?

[00:14:18] Speaker 05:
Because as Judge Chung

[00:14:20] Speaker 05:
says that it's maybe in the circuitous way, but it's been raised and addressed.

[00:14:27] Speaker 03:
I'm sorry, Your Honor.

[00:14:30] Speaker 03:
Help me understand how it's been raised except for by the court today?

[00:14:34] Speaker 05:
No.

[00:14:36] Speaker 05:
In other words, the petitioner didn't raise this issue directly, but it was one of the arguments on the CIMT issue, wasn't it?

[00:14:49] Speaker 03:
Well, I mean, the CIMT issue is the core petitioner's case.

[00:14:54] Speaker 03:
And your honor is correct that exhaustion is no longer a jurisdictional issue, but it is something like a claim processing rule that, if raised by the government, the other side has to engage.

[00:15:05] Speaker 05:
I understand that.

[00:15:08] Speaker 05:
But once we get there, there's no rule that makes it mandatory because of lack of exhaustion.

[00:15:19] Speaker 05:
mandatory that we can't consider it, is there?

[00:15:24] Speaker 03:
Well, in deference to the court, the court can reach whichever issues that it chooses to reach.

[00:15:31] Speaker 03:
I would just reiterate the claim in our brief that, for the reasons I just spoke, that to go beyond that issue would be something like an advisory opinion.

[00:15:42] Speaker 01:
But I can shift to- We can exercise our discretion to reach the question of law.

[00:15:46] Speaker 01:
So maybe you should turn to the merits of the CIMT issue.

[00:15:51] Speaker 03:
Certainly.

[00:15:51] Speaker 03:
I'd like to address petitioner's claims that Council makes today and that he makes in his brief.

[00:15:59] Speaker 03:
The first claim basically says that recklessness as the mens rea, general intent, and any level of physical harm should not be CIMT.

[00:16:10] Speaker 03:
And he makes that claim in his brief.

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And to that, I would say, as we have acknowledged and conceded in our brief,

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As a general matter, general intent crimes with sort of offensive touching or something nominally in the assault category, it does not equal a CIMT.

[00:16:33] Speaker 03:
But to say that recklessness and assault based on recklessness and any level of harm should not be a CIMT is not controversial.

[00:16:40] Speaker 03:
That's not the statute of conviction under which he pled.

[00:16:44] Speaker 03:
He pled under a subsection, as we're all aware, of recklessly, yes, causing physical harm and injury to his pregnant wife by strangling her in front of their two-year-old son.

[00:17:02] Speaker 03:
And so analogous, his second point that's sort of analogous or subsumed in here is that the agency's interpretation of the statute at issue is a new rule that cannot be applied retroactively.

[00:17:18] Speaker 03:
To this, the government would say that it's not a new, it's not the- Back to the merits for a second.

[00:17:25] Speaker 00:
I'm sorry?

[00:17:26] Speaker 00:
Can you address Fernandez-Louise?

[00:17:29] Speaker 03:
Fernandez-Louise?

[00:17:30] Speaker 00:
Yes, Fernandez Ruiz, our case law, it was a reckless assault on a spouse where we said that's not a crime of more turpitude.

[00:17:41] Speaker 03:
I don't have that in our briefs.

[00:17:45] Speaker 03:
And I mean, all I can say is I can't address that specifically.

[00:17:52] Speaker 03:
I'd be happy to do it in supplemental briefing.

[00:17:55] Speaker 00:
Well, except my representation that we have that case that says reckless assault on a domestic partner is not a crime of more turpitude because it doesn't reach the willfulness mens rea.

[00:18:10] Speaker 00:
How would you distinguish that from this case?

[00:18:12] Speaker 03:
I would say that as I was

[00:18:14] Speaker 03:
In answer to petitioners claim of retroactivity and the inapplicability of matter of Wu, there is a line of cases both at the agency level and this court that has said that recklessness plus an aggravating factor

[00:18:32] Speaker 03:
does elevate otherwise non-CIMT behavior or conduct to the level of a CIMT and This goes back as we say in our brief to 1988 matter of Dinesh salt on a police officer brings a recklessness up to the level of a CIMT matter of sinuto deemed that there were categories of of persons in society

[00:19:00] Speaker 03:
where the general intent is evident in the assault, but because the victim is a child, a domestic partner, or a peace officer, that elevates it to a CIMT.

[00:19:12] Speaker 03:
This court in Galeano, Mendoza,

[00:19:15] Speaker 03:
said that simple assault may be a CIMT if it involves aggravating factors like bodily harm on someone's society of views as deserving special care and attention.

[00:19:25] Speaker 03:
And similarly, in Ramirez Contreras, a 2017 case that found a CIMT will involve intent to injure actual injury or on a protected class.

[00:19:35] Speaker 01:
In all these cases, there's at least, there are basically three factors that we're looking at.

[00:19:40] Speaker 01:
There's the mens rea.

[00:19:43] Speaker 01:
There's the actus reus, and then there's the victim.

[00:19:47] Speaker 01:
And in Fernandez Ruiz, we had recklessness mens rea, a specially protected victim, meaning someone in the same household, which all the cases you cite recognize a spouse or domestic partner as a special class of protected victim.

[00:20:02] Speaker 01:
And in Fernandez Ruiz, the actus reus was any physical injury.

[00:20:08] Speaker 01:
Is there a basis for distinguishing the Oregon statute issue here from that one?

[00:20:14] Speaker 03:
So I would simply say, in answer to your question and the contention that opposing counsel made, that it would be somewhat absurd to not include pregnant women into a special class of- Right, but if we have in the Arizona domestic violence statute at issue in Fernando's Ruiz, we had the victim, by definition, had to be a member of the same household.

[00:20:39] Speaker 01:
It was a domestic violence.

[00:20:41] Speaker 01:
simple assault statute, and we said assault on the domestic partner with recklessness was not a crime of moral turpitude.

[00:20:53] Speaker 01:
So how do we distinguish the Oregon law from that one?

[00:20:57] Speaker 03:
Again, I would be happy to brief that in supplemental briefing.

[00:21:00] Speaker 03:
A quick answer that I would say is that because we have the modified categorical approach here, the peak that we give here is that the petitioner here strangled his pregnant wife in front of their two-year-old daughter.

[00:21:15] Speaker 01:
On the modified approach, we can consider the fact of the details of what occurred in the crime?

[00:21:20] Speaker 03:
Indeed.

[00:21:22] Speaker 00:
Don't look to the least culpable conduct?

[00:21:25] Speaker 03:
Pardon?

[00:21:25] Speaker 00:
We don't look to the least culpable conduct?

[00:21:29] Speaker 03:
The least culpable conduct is that he recklessly caused injury to his pregnant wife while he knew that she was pregnant.

[00:21:39] Speaker 00:
So we can't consider the actual facts, can we?

[00:21:44] Speaker 03:
Well, I believe that you can take a peek at the criminal information and to do otherwise,

[00:21:53] Speaker 00:
I thought the criminal information or indictment here has the mental state of recklessness.

[00:21:59] Speaker 03:
It does.

[00:21:59] Speaker 03:
I'm not saying that it doesn't.

[00:22:00] Speaker 03:
I'm saying that there are facts underneath.

[00:22:03] Speaker 00:
So that doesn't help, because we're talking about instances where we have to look at the least culpable conduct of recklessness.

[00:22:10] Speaker 00:
We don't have a mens rea that goes to willfulness.

[00:22:14] Speaker 03:
Indeed, but I would just reiterate that even under de novo review, the agency here, absent Chevron deference, is the best reading of this Oregon statute.

[00:22:25] Speaker 03:
And that recklessness with an aggravating factor, because the victim here is a pregnant woman, the court should uphold the CIMT here.

[00:22:35] Speaker 00:
You're over time, but we thank you for your argument.

[00:22:37] Speaker 00:
Thank you.

[00:22:46] Speaker 02:
Your Honor, the IJ did get something right here.

[00:22:50] Speaker 02:
And it's the citation to Fernandes Ruiz, the case that you've been asking about.

[00:22:57] Speaker 02:
The IJ clearly says mens rea and a protected class, a family member or a spouse, does not amount to a CIMT.

[00:23:06] Speaker 02:
Doesn't even amount to a crime constituting domestic violence.

[00:23:12] Speaker 02:
Looking at your questions and the judge's notation here, it seems like the judge was making law, was creating this brand new protected class of pregnant women when what's the difference between a pregnant woman and or a spouse?

[00:23:28] Speaker 02:
They're both, if they fall under the family protection that the court has mentioned in this case, doesn't support this aggravating factor, Your Honor.

[00:23:38] Speaker 02:
And I ask the court to grant this petition, remand the case to the BIA with an order to send it back to the IJ to hold an individual hearing or trial on the merits of the case, Your Honor.

[00:23:51] Speaker 02:
Thank you.

[00:23:52] Speaker 00:
All right.

[00:23:53] Speaker 00:
Thank you both.

[00:23:54] Speaker 00:
The matter is submitted.