[00:00:05] Speaker 04:
And we'll hear argument next in a lobby against Garland.

[00:00:49] Speaker 04:
You may proceed.

[00:00:52] Speaker 01:
Sorry, just one moment.

[00:00:57] Speaker 01:
May it please the court, Kristen McLeodball for petitioner Nader Alabi.

[00:01:01] Speaker 01:
I'd like to reserve four minutes for rebuttal.

[00:01:05] Speaker 01:
After he was ordered removed, Nader Alabi filed a compound motion to reopen and reconsider with the Board of Immigration Appeals, seeking three things.

[00:01:13] Speaker 01:
Reopening a reconsideration to permit the board to reinstate his appeal,

[00:01:18] Speaker 01:
Second, reopening based on new evidence related to adjustment of status, which the immigration judge did not adequately explain to him.

[00:01:25] Speaker 01:
And third, reconsideration based on errors the immigration judge made in finding him ineligible for relief.

[00:01:31] Speaker 01:
The board erred with respect to all of these.

[00:01:34] Speaker 01:
The board erred with respect to all three by concluding that it lacked jurisdiction under the place of filing rule.

[00:01:42] Speaker 01:
This holding squarely contradicts this court's decision in Hernandez versus Holder.

[00:01:47] Speaker 01:
But the board's alternative holding was also incorrect because it held that Mr. Alabi's earlier request to withdraw his BIA appeal was a tactical gambit.

[00:01:56] Speaker 01:
A decision made by a person who's pro se detained and that's based on incorrect advice from another detained person.

[00:02:04] Speaker 01:
that the BIL itself knows is incorrect and, moreover, was against his best interest should not be taken as a tactical gambit, especially when there's conflicting evidence in the record.

[00:02:15] Speaker 01:
Moreover, the board applied the wrong standard in its alternative holding.

[00:02:19] Speaker 00:
Did not the board refuse the motion to reopen because it referred to the place of filing rule, and it didn't base it upon it being jurisdictional.

[00:02:27] Speaker 00:
It simply said that we have not considered the respondent's case on the merits.

[00:02:32] Speaker 00:
So the motion is not properly before us.

[00:02:35] Speaker 00:
It was not properly before the board, it said, because the board is not the one that had ever considered it on the merits in the first place.

[00:02:42] Speaker 01:
Well, Your Honor, I believe that this was a jurisdictional holding.

[00:02:46] Speaker 01:
If you'll see in the next paragraph,

[00:02:49] Speaker 01:
the board found that went to its alternative holdings saying, even if we have jurisdiction, and went on to make the other holding, that indicates that the first holding was jurisdictional.

[00:02:58] Speaker 01:
It also relies upon the board's place of filing published decisions, which treat the rule as jurisdictional.

[00:03:04] Speaker 01:
It doesn't cite this court's decision in Hernandez, which is where it was found not to be jurisdictional, and it functionally treats it as jurisdictional by not considering

[00:03:13] Speaker 01:
exceptions to the rule, despite the fact that the government didn't raise.

[00:03:18] Speaker 00:
But is that really material here in that the board did not refuse his motion to reopen because it believed that it was jurisdictional necessarily.

[00:03:27] Speaker 00:
It was a matter of where it should be, where the rights should be asserted in the appropriate venue.

[00:03:31] Speaker 00:
Isn't that correct?

[00:03:33] Speaker 01:
The place of filing rule relates to appropriate venue for filing motions to reopen.

[00:03:38] Speaker 01:
The question is whether that rule, whether that venue provision is jurisdictional or not.

[00:03:42] Speaker 01:
If it's not jurisdictional, then it's subject to exceptions, right?

[00:03:47] Speaker 01:
It can be waived or forfeited.

[00:03:49] Speaker 01:
But if it's jurisdictional, it sort of doesn't matter whether the government objects to venue.

[00:03:55] Speaker 01:
It still necessarily is going to say, we can't hear this case.

[00:03:59] Speaker 04:
And so I mean, I guess I suppose that we agree with you that they treated this as jurisdictional.

[00:04:07] Speaker 04:
And there's no dispute that it really is not, in fact, jurisdictional.

[00:04:13] Speaker 04:
Even a non-jurisdictional rule is, as you say, subject to waiver and forfeiture.

[00:04:17] Speaker 04:
But the board may excuse waiver or forfeiture and consider a procedural rule suespante.

[00:04:25] Speaker 04:
if it deems that appropriate.

[00:04:27] Speaker 04:
So if we read what they did, setting aside the jurisdictional language, as simply a sua sponte invocation of a non-jurisdictional procedural rule, why is that wrong?

[00:04:40] Speaker 01:
Well, it's wrong in different ways with regards to different parts of the decision.

[00:04:44] Speaker 01:
With regards to the motion to reopen and reconsider the withdrawal itself, it's incorrect even under the BIA's place of filing rule.

[00:04:56] Speaker 01:
Sorry.

[00:04:58] Speaker 01:
But as regards to the... Why is that?

[00:05:01] Speaker 01:
Oh, so the BIA's place of filing rule, right?

[00:05:03] Speaker 01:
The venue provisions for motions to reopen or reconsider in filing with either the immigration court or the BIA is not set out by statute or regulation.

[00:05:14] Speaker 01:
It's found in two BIA decisions, a matter of Melandino and a matter of Lopez.

[00:05:20] Speaker 01:
Now, those decisions essentially boil down to the idea that the adjudicator

[00:05:26] Speaker 01:
that makes a decision should be the one to hear a motion challenging that decision.

[00:05:31] Speaker 01:
The adjudicator that actually made the decision at issue is the one that should be hearing it.

[00:05:36] Speaker 01:
And so the challenges to whether or not the BIA should reinstate Mr. Alabi's appeal, those related to the BIA's decision itself to withdraw the appeal.

[00:05:49] Speaker 01:
If those were sent to the immigration judge instead,

[00:05:52] Speaker 01:
the immigration judge had nothing to do with the underlying decision.

[00:05:55] Speaker 01:
And so it doesn't sort of comply with the logic of the place of filing rule.

[00:05:59] Speaker 01:
The place of filing rule itself came in the context of decisions, BIA appeals that were dismissed for untimeliness, right?

[00:06:10] Speaker 01:
And they said, if the subsequent motion looks at timeliness, it should still go to the board.

[00:06:17] Speaker 01:
That's functionally what's happening here with a portion of Mr. Alabi's motion that dealt with the withdrawal of the appeal and the reinstatement of the appeal.

[00:06:24] Speaker 00:
Following up on Judge Miller's question and Ms.

[00:06:26] Speaker 00:
McLeod-Walt, I understand that the rule requires to file a motion to reopen under Melodino, if I'm pronouncing it correctly, the case to which you just made reference, with the same entity that adjudicated the decision to reopen.

[00:06:42] Speaker 00:
If I have the chronology wrong here, please correct me.

[00:06:45] Speaker 00:
Essentially, Mr. Lobby came to the United States on a B-2 tourist visa in 2001, correct?

[00:06:52] Speaker 00:
Yes.

[00:06:53] Speaker 00:
And 21 years later, having not attained American citizenship, he was arrested and charged with a domestic violence offense, which brought him within the auspices of the immigration authorities.

[00:07:05] Speaker 00:
And he even pled guilty in August of 2022 to that offense.

[00:07:10] Speaker 00:
Is that not correct?

[00:07:12] Speaker 01:
I would clarify that Mr. Alabi was brought into the Embedded Immigration Authorities because he was charged with overstaying his visa, not for any criminal conduct.

[00:07:20] Speaker 00:
That's fine.

[00:07:20] Speaker 00:
I understand.

[00:07:21] Speaker 00:
That's a fair comment.

[00:07:22] Speaker 00:
And so then he appeared, pro se, before the immigration judge in September of 2022.

[00:07:27] Speaker 00:
And the immigration judge, in the context of this case, meaning you mentioned the context of the place of filing rule, there was postponements to September 20, to October 19.

[00:07:41] Speaker 00:
to November the 3rd of 2022, all of which each time he was advised of his need for counsel or whatever, he continued to have postponements.

[00:07:51] Speaker 00:
There were a series of postponements, correct?

[00:07:53] Speaker 01:
There were several continuances.

[00:07:56] Speaker 00:
There were literally four appearances by him in a period of six weeks.

[00:08:00] Speaker 00:
And then finally, he proceeded with a hearing on November 21st of 2022, at which time he was ordered removed.

[00:08:08] Speaker 00:
And then you made reference to his appeal or withdrawing

[00:08:12] Speaker 00:
About two weeks thereafter, on December the 5th of 2022, he then appealed the removal.

[00:08:21] Speaker 00:
And then, ultimately, four months later, on March 3rd of 2023, he then withdrew his appeal.

[00:08:28] Speaker 00:
Is that not correct?

[00:08:29] Speaker 01:
I will clarify.

[00:08:30] Speaker 01:
There's a couple of intervening events.

[00:08:31] Speaker 01:
All right.

[00:08:32] Speaker 00:
Well, that's fine.

[00:08:32] Speaker 00:
Because I want you to clarify, because there's some suggestion by the government that Mr. Alabi was gaming the system after a while, in that ultimately, he then

[00:08:41] Speaker 00:
April 7th of 2023, he moved to withdraw his, I mean, he moved for reconsideration.

[00:08:50] Speaker 00:
So I guess my point I'm trying to make, and I'm asking you so you can explain it to me, the notice of the place of filing rule in terms of who actually rendered the decision, I think if you're going to say we have to look at that in context, we need to look at the chronology of this entire case in context.

[00:09:05] Speaker 00:
So if you can provide some context for me as to that.

[00:09:09] Speaker 01:
Certainly.

[00:09:09] Speaker 01:
So Mr. Olabi, as you mentioned, was pro se before the immigration judge.

[00:09:14] Speaker 01:
He received a few continuances.

[00:09:16] Speaker 01:
He was detained.

[00:09:16] Speaker 01:
It was difficult for him to obtain evidence.

[00:09:18] Speaker 01:
His family was looking for a lawyer for him.

[00:09:20] Speaker 01:
They weren't able to do so.

[00:09:21] Speaker 01:
He wasn't able to afford one.

[00:09:23] Speaker 01:
They ultimately proceeded pro se.

[00:09:25] Speaker 01:
Mr. Olabi, still pro se, filed a notice to appeal.

[00:09:28] Speaker 01:
He filed an extension request for his briefing deadline, but the board rejected it on technical grounds.

[00:09:35] Speaker 01:
Shortly after that, he

[00:09:37] Speaker 01:
received incorrect advice, said he could file a motion to withdraw.

[00:09:42] Speaker 01:
He didn't understand that that would end his appeal.

[00:09:45] Speaker 01:
He believed it just would give him another opportunity to go back to the immigration court where he could discuss bond.

[00:09:51] Speaker 01:
Not knowing the impact of this filing, he filed it.

[00:09:55] Speaker 01:
The board issued a decision withdrawing the appeal.

[00:09:58] Speaker 01:
Shortly afterwards, Mr. Alabi obtained counsel.

[00:10:03] Speaker 01:
who explained to him the first time what it had meant when his appeal was withdrawn.

[00:10:07] Speaker 00:
Clearly, the board never rendered any opinion on the merits, correct, without question?

[00:10:11] Speaker 01:
No, Your Honor, but the motion to reconsider did not address only the merits of what happened at the IJ.

[00:10:17] Speaker 01:
It also addressed the merits of whether his appeal should have been withdrawn.

[00:10:21] Speaker 01:
That was within the ambit of the board, is what I'm saying.

[00:10:27] Speaker 01:
That was my comments earlier were about the motion to reconsider and reopen in order to present evidence regarding the withdrawal of the appeal to the board.

[00:10:36] Speaker 01:
Now, as you mentioned, the motion also included information or challenges to what happened before the immigration judge, right?

[00:10:45] Speaker 01:
And so if those had been raised on their own under the place of filing rule, it certainly would have made sense to file those with the immigration judge.

[00:10:53] Speaker 01:
But the place of filing rule

[00:10:54] Speaker 01:
did not, none of the published decisions on that actually involve cases in which there are challenges to what was done both by the BIA and by the immigration judge, right?

[00:11:04] Speaker 01:
This is a situation that falls sort of outside of the specific context of those decisions and this court's decision in Hernandez.

[00:11:11] Speaker 01:
And so Mr. Olabi, rather than filing two separate motions, putting his case before two different adjudicators at the same time and further procedurally complicating it, filed the entire motion with one adjudicator who was the one who

[00:11:25] Speaker 01:
made the decision about the withdrawal of the appeal.

[00:11:27] Speaker 01:
That was his primary argument.

[00:11:29] Speaker 01:
And so when the board dismissed or applied the place of filing rule jurisdictionally without considering the merits of anything beyond the reconsideration request with the withdrawal decision, it treated the rule as jurisdictional.

[00:11:44] Speaker 01:
But even if it wasn't, it didn't consider whether in this complicated scenario, forfeiture or waiver should have applied or some other equitable exception like transfer.

[00:11:54] Speaker 04:
I think I understand the basis for the motion to reopen, but why would reconsideration be appropriate?

[00:12:01] Speaker 04:
The action that you're seeking to reconsider is the board's dismissal of the appeal.

[00:12:08] Speaker 04:
They got a motion asking them to dismiss the appeal.

[00:12:10] Speaker 04:
They granted that.

[00:12:14] Speaker 04:
I'm struggling to see what there would be to reconsider.

[00:12:17] Speaker 01:
Sure, certainly.

[00:12:18] Speaker 01:
I realize I'm at time here.

[00:12:20] Speaker 01:
So motions to reconsider and reopen are procedurally distinct vehicles.

[00:12:23] Speaker 01:
One is about addressing the record at the time of an agency decision.

[00:12:29] Speaker 01:
And Mr. Olabi argued that the board should have known that he wasn't understanding what he was doing.

[00:12:37] Speaker 01:
He had just filed an extension for his appeal brief.

[00:12:39] Speaker 01:
He was trying to pursue his appeal brief.

[00:12:41] Speaker 01:
In addition, presented new evidence, which is motion to reopen standard.

[00:12:45] Speaker 01:
sort of supporting that same claim, explaining why he did the things he did, presenting information that the board didn't consider.

[00:12:53] Speaker 01:
But to your point, if it was more appropriate as a motion to reopen, it's very strange then that the board only considered it as a motion to reconsider.

[00:13:02] Speaker 04:
You can reserve the rest of your time.

[00:13:04] Speaker 04:
Thank you.

[00:13:06] Speaker 04:
We'll hear from the government.

[00:13:15] Speaker 02:
Good morning, Your Honors.

[00:13:16] Speaker 02:
May it please the Court, Rob Stahlser on behalf of the AG.

[00:13:19] Speaker 02:
Your Honors, I want to start where my sister counsel stopped, and that was that this was a compound motion that was complicated and therefore the Board had to consider it.

[00:13:26] Speaker 02:
That's incorrect, Your Honors.

[00:13:27] Speaker 02:
There were two motions here.

[00:13:29] Speaker 02:
They were all clumped together.

[00:13:30] Speaker 02:
It was compound.

[00:13:31] Speaker 02:
It was a motion for reconsideration and reopening.

[00:13:33] Speaker 02:
To the extent it was a motion for reopen.

[00:13:37] Speaker 02:
In other words, they wanted to bring new evidence on the adjustments.

[00:13:39] Speaker 02:
They wanted to bring new evidence on the withholding.

[00:13:41] Speaker 02:
Those questions were not in front of the board properly because they never reached the merits because he withdrew his appeal.

[00:13:48] Speaker 02:
And so that's why the place of filing rule operated in this case.

[00:13:50] Speaker 02:
And they instructed in the footnote said, you should have raised those questions with the immigration judge because that was the issue before him.

[00:13:57] Speaker 04:
Can you just take us through what you understand to be the basis for the board's decision?

[00:14:02] Speaker 04:
Because I will just tell you, I find it very difficult to understand what the board thought that it was doing.

[00:14:09] Speaker 02:
OK, absolutely, yes.

[00:14:10] Speaker 02:
As we understand it, Petitioner's motion to reconsider and reopen raised three issues.

[00:14:15] Speaker 02:
The issue first was, he wanted to present his issues on appeal.

[00:14:18] Speaker 02:
I think, yeah, that's a respondent request that the board allow him to brief issues on appeal.

[00:14:24] Speaker 02:
And at that point, his appeal had already been withdrawn.

[00:14:27] Speaker 02:
And the final agency adjudication was the immigration judges.

[00:14:31] Speaker 02:
And then the other two issues in the motion were on adjustment, saying the immigration judge should have done more to explain adjustment to me and maybe adjudicate that application.

[00:14:41] Speaker 02:
And then also that he should have further adjudicated the withholding claim.

[00:14:45] Speaker 02:
I think he wanted to bring a anglophile claim and I think probably a religion claim.

[00:14:51] Speaker 02:
And so the board saw these are the three issues.

[00:14:54] Speaker 02:
As far as the immigration judge determinations go,

[00:14:56] Speaker 02:
They're not in front of the board.

[00:14:58] Speaker 02:
And the reason for that is because of the place of filing rule.

[00:15:01] Speaker 02:
Because the board never had a chance to reach the merits.

[00:15:04] Speaker 02:
The board instructs, hey, you have to raise those with the immigration judge first.

[00:15:07] Speaker 02:
Now that left the, I should, you should hear my issues on appeal request.

[00:15:14] Speaker 02:
And for that one, the board said, okay, even assuming we hear this, and although they used the word jurisdiction, which I probably shouldn't have, in that colloquial sense, if we hear this, then we would say no.

[00:15:26] Speaker 02:
And they explained their reasons for that.

[00:15:27] Speaker 04:
So I mean, do you think they did dismiss for lack of jurisdiction?

[00:15:32] Speaker 02:
Absolutely not.

[00:15:33] Speaker 02:
They told us why they dismissed.

[00:15:34] Speaker 02:
They said, quote, the motion is not properly before us.

[00:15:37] Speaker 03:
Right, but here's the problem I have with that.

[00:15:40] Speaker 03:
And my first reading about it, I kind of agreed with you that they may have used some loose language, and they were referring to not referring jurisdictionally, but they did use jurisdiction in the next paragraph.

[00:15:54] Speaker 03:
And then they cited a case that was jurisdictional.

[00:15:59] Speaker 02:
For the motion to reconsider question.

[00:16:02] Speaker 03:
But I mean, it's hard for me to see how they weren't treating it as a jurisdictional problem when they say jurisdiction and they set a case that is jurisdictionally based.

[00:16:14] Speaker 02:
For the motion to reopen portion, they didn't treat it as jurisdictional.

[00:16:18] Speaker 02:
They said it wasn't before us, which sounds to me like venue, which goes to the place of filing.

[00:16:22] Speaker 02:
That's the claims processing rule that the court upheld in Hernandez against Holder.

[00:16:28] Speaker 02:
And that was the two questions regarding the immigration judge determinations on the question of whether the board should have reconsidered the withdrawal of his appeal.

[00:16:37] Speaker 02:
The board appropriately said, okay.

[00:16:39] Speaker 02:
For reconsideration, you have to specify an error of law or fact, and you fail to do that.

[00:16:43] Speaker 02:
There's nothing legally wrong with the withdrawal.

[00:16:46] Speaker 02:
That's routine and codified in the regulations.

[00:16:48] Speaker 02:
They simply say, I want to withdraw my appeal.

[00:16:49] Speaker 02:
And the board says, OK, you are the master of your own appeal.

[00:16:52] Speaker 02:
If you want to withdraw, you can withdraw for whatever reason you want.

[00:16:54] Speaker 02:
The question then becomes, when he holds his hands up and he says, I got bad advice, and I would really like you to hear my appeal, is that an error with the board decision?

[00:17:04] Speaker 02:
No, there's no error with the board.

[00:17:06] Speaker 02:
He erred, he shouldn't have taken the jailhouse advice, but that error isn't attributable to the board, and there's no other real exception that the board, I mean, Petitioner didn't ask for it, but perhaps he could have asked for suesponte reopening or reconsideration, and he didn't ask for it in his motion.

[00:17:21] Speaker 02:
But as far as applying just, you know, for a motion to reconsider, you need to specify an error of fact or law, he didn't.

[00:17:27] Speaker 04:
And for reopening, what was the basis for denying that?

[00:17:31] Speaker 04:
The place of filing rule and and and that's what you're saying.

[00:17:36] Speaker 04:
Even though they said even if we had jurisdiction and cited a case about jurisdiction and invoked at Sue Espante We should read their decision as not having believed well, we should read their decision as applying two different

[00:17:50] Speaker 02:
applying to two different requests.

[00:17:52] Speaker 02:
One is a motion to reopen, and that's what the place of filing rule applies, and that was not jurisdictional.

[00:17:57] Speaker 02:
That was because it wasn't properly in front of the board.

[00:17:59] Speaker 02:
The other question regarding the withdrawal, now that was the only decision the board made in the case, right?

[00:18:03] Speaker 02:
So that's the only decision that could be reconsidered by the board, is whether it should rescind the grant of his withdrawal.

[00:18:11] Speaker 02:
And that's why that one, even though they said the word jurisdiction, and they probably shouldn't have, they should have said, oh, even if we consider your motion, to the extent you're challenging the withdrawal of your appeal,

[00:18:20] Speaker 02:
we wouldn't grant because you haven't shown us an error of factor law.

[00:18:24] Speaker 04:
So do you agree that with respect to the motion to reopen, the only holding from the board is this procedural slash jurisdictional one and that they did not address it on the merits and the alternative?

[00:18:38] Speaker 04:
No, there's no alternate holding on the merits of the motion to reopen portion, which related to his- Because the third paragraph says we would not reopen, but then they cite the reconsideration standard and they said that's just another- They did because that was the- and that's what he was asking for.

[00:18:53] Speaker 02:
He said, I want to raise these issues on appeal, which the effect of granting his reconsideration of the withdrawal would be to reopen the case in front of the board.

[00:19:01] Speaker 02:
So they used the word reopen there.

[00:19:02] Speaker 02:
But what they're evaluating there is whether he can show an error with the withdrawal of his appeal.

[00:19:07] Speaker 02:
Because the effect of granting that would then restart his case in front of the board.

[00:19:12] Speaker 02:
It would reopen it.

[00:19:13] Speaker 03:
But what they say is the motion to reconsider and reopen and stay request will be denied.

[00:19:19] Speaker 03:
I mean, they seem to be speaking more broadly.

[00:19:22] Speaker 02:
That's how he titled his... Yeah, I know.

[00:19:25] Speaker 02:
Yeah, I think that's the summation, summing up what they're doing.

[00:19:29] Speaker 02:
But that's how he labeled his motion.

[00:19:32] Speaker 02:
And of course, motions are based on substance, not how they're labeled.

[00:19:36] Speaker 02:
And that's what the board did.

[00:19:37] Speaker 02:
They said, well, we've got these three questions in front of us, withdrawing, and then the two immigration judge.

[00:19:42] Speaker 02:
Well, the two immigration judge, those should go to him because he did the case.

[00:19:45] Speaker 02:
And as far as withdrawal goes, if we were to reach it,

[00:19:48] Speaker 02:
which they should have just breached it.

[00:19:49] Speaker 02:
But they said, if we're going to reach that, we would deny it because it's not an error factor law with our decision.

[00:19:55] Speaker 04:
And what about, so it's a matter of Lopez, which I recognize was a reconsideration case, not a reopening case, but the logic seems to apply equally in both contexts, said that there's an exception to the place of filing rule when the claim is really about the board's jurisdiction.

[00:20:17] Speaker 04:
So here the question is, should the board really have dismissed the appeal or not?

[00:20:22] Speaker 04:
Or on the reopening motion, here's some additional evidence that would explain what I was doing and why you shouldn't have dismissed the appeal.

[00:20:34] Speaker 04:
That's about something the board did.

[00:20:36] Speaker 04:
Why does that have to go back to an IJ for the IJ to decide the propriety of the boards having dismissed an appeal?

[00:20:42] Speaker 02:
I don't think the board said that that should go back.

[00:20:44] Speaker 02:
I think the board said that the immigration judge question should be in front of the immigration judge and that they would not have granted the motion to reconsider the withdrawal of the appeal.

[00:20:55] Speaker 04:
But part of his claim relating to or one of the things he was trying to do in order to get the appeal

[00:21:08] Speaker 04:
not to use any of the technical terms, get the appeal going again, was a motion to reopen, right?

[00:21:16] Speaker 04:
And that, I think you just said they only dismissed under the place of filing rule and didn't consider on the merits.

[00:21:24] Speaker 02:
Right.

[00:21:24] Speaker 02:
They did not consider the merits of the questions he raised relating to the immigration judge decisions.

[00:21:29] Speaker 02:
Because those had never come in front of the board, the place of filing will operate it, and those have to be filed in front of the immigration judge.

[00:21:35] Speaker 02:
The one decision that they could reach, which they did discuss on the merits, was the withdrawal.

[00:21:40] Speaker 02:
To the extent we have jurisdiction over this request to reopen your hearing,

[00:21:49] Speaker 02:
we don't find an arrow factor law in our determination to grant your withdrawal.

[00:21:55] Speaker 04:
But that's the reconsideration standard, right?

[00:22:00] Speaker 04:
Yes.

[00:22:01] Speaker 04:
I thought he was trying to reinstate the appeal through reconsideration and also through reopening, and that doesn't address- Right.

[00:22:09] Speaker 02:
Reopening doesn't really fit that question, though.

[00:22:13] Speaker 02:
A motion to reopen is a fact question.

[00:22:15] Speaker 02:
It says that something new has come up, either a change in circumstances or redevelopment of facts or rediscovery of new facts, and therefore you need to reopen to address this new evidence.

[00:22:24] Speaker 02:
It's evidentiary.

[00:22:25] Speaker 02:
By contrast, a motion to reconsider is a motion saying, hey, the prior order was erroneous for whatever reasons, and therefore you need to revisit it.

[00:22:34] Speaker 02:
And that's what he did here.

[00:22:35] Speaker 02:
When he literally he asked, he said,

[00:22:36] Speaker 02:
So the only thing he could be asking as regards

[00:22:49] Speaker 02:
The withdrawal was appeal is reconsideration.

[00:22:51] Speaker 04:
Well, so what I mean suppose he says I think maybe this is what he's saying in part I'm not saying that you were wrong to dismiss the appeal when I asked you to dismiss the appeal but I am saying I want you to look at this evidence that shows that I didn't really understand what I was doing and

[00:23:12] Speaker 04:
You know, I got bad advice.

[00:23:15] Speaker 04:
Is that sort of claim properly advanced in a motion for reopening or reconsideration?

[00:23:22] Speaker 02:
Well, we don't have a board decision directly on point, but under Latineo and Lopez, it's persuasive for the board to say, OK, because we're the ones who issued this order that you're now asking us to revisit, we should be the ones to consider it, which is what they did in that third paragraph.

[00:23:38] Speaker 02:
And I suppose, you know, he could, he could have asked for Swiss Ponte reconsideration or Swiss Ponte reopening.

[00:23:44] Speaker 02:
Um, I don't know that the facts are there to have made an ineffective assistance of counsel.

[00:23:48] Speaker 02:
I mean, it's the jailhouse lawyer.

[00:23:49] Speaker 02:
I don't think it's a real lawyer.

[00:23:50] Speaker 02:
The court's jurisprudence when it comes to, um, non-lawyers giving advice usually has to rely on fraud.

[00:23:56] Speaker 02:
So, I mean, there might be other vehicles there, but it's just not the motion that petitioner brought.

[00:24:01] Speaker 03:
So, in this instance, one of his claims is that the IJ did not properly advise him about adjustment of status.

[00:24:10] Speaker 03:
Wouldn't you agree that that is an issue that goes to the board?

[00:24:13] Speaker 03:
No.

[00:24:14] Speaker 02:
Why?

[00:24:14] Speaker 02:
Not an emotion to reopen, Your Honor.

[00:24:16] Speaker 02:
On appeal, yes.

[00:24:17] Speaker 02:
That's what he should have made.

[00:24:18] Speaker 02:
Yes.

[00:24:18] Speaker 03:
I mean, the IJ couldn't decide whether or not the IJ had violated due process.

[00:24:24] Speaker 03:
That's a decision for the board, right?

[00:24:25] Speaker 03:
Well, no.

[00:24:26] Speaker 03:
I mean, theoretically, you could ask the IJ to reconsider.

[00:24:30] Speaker 02:
Right.

[00:24:30] Speaker 02:
Well, you would raise that issue on appeal, though.

[00:24:32] Speaker 02:
You don't raise that issue for the first time in a motion to reopen.

[00:24:34] Speaker 03:
But that's what he was trying to do, is to say, I want to reopen my appeal.

[00:24:37] Speaker 03:
At that point, he had withdrawn his appeal.

[00:24:38] Speaker 03:
But I mean, when you get back to where you should file this, I don't think that a procedural due process challenge should be filed before the IJ.

[00:24:53] Speaker 03:
Would you agree?

[00:24:54] Speaker 02:
Well, I don't read his motion to be a procedural due process claim.

[00:24:59] Speaker 03:
I'm trying to explain, not interrupt, so bear with me.

[00:25:06] Speaker 03:
What he wanted to do was reopen his appeal to raise the issue of the IJ's failure to advise him.

[00:25:15] Speaker 03:
Now, how does that fit into the where he should have filed rubric?

[00:25:21] Speaker 03:
Because it seems to me, yes, that was an appeal issue.

[00:25:25] Speaker 03:
He's just trying to reopen his appeal.

[00:25:28] Speaker 03:
So the place to file, how does this fit into that?

[00:25:31] Speaker 02:
To the extent he's trying to reopen his appeal, that question goes to the board.

[00:25:35] Speaker 02:
But to the extent of the issue that you're raising, that the immigration judge aired, absent an appeal, which at that time had already been closed,

[00:25:41] Speaker 02:
he could only have raised that via motion to reopen potentially with the immigration judge.

[00:25:46] Speaker 02:
And maybe that would have been successful and maybe the immigration judge would have said, no, you can't do it.

[00:25:50] Speaker 02:
But the place of filing rule doesn't go to the merits of the question.

[00:25:53] Speaker 02:
It just goes to the venue.

[00:25:54] Speaker 02:
Where does this motion belong?

[00:25:56] Speaker 02:
And because he had withdrawn his appeal, the substantive motions, the substantive parts of his motion had to go to the immigration judge, at least so far as the applications for relief that he was seeking and the applications that the immigration judge had adjudicated.

[00:26:10] Speaker 03:
You would agree that the board had the power to reopen the appeal?

[00:26:13] Speaker 02:
They had that power, but they're not required to.

[00:26:16] Speaker 02:
They have that power because they could always do whatever they want.

[00:26:19] Speaker 02:
But just because they can re-open it, doesn't mean they have to.

[00:26:22] Speaker 02:
And that's what they did here.

[00:26:24] Speaker 03:
I mean, it seems to me it gets, you know, leaving the question of whether they got jurisdiction right or not aside, it comes down to abuse of discretion, right?

[00:26:34] Speaker 02:
Well, yes, that's the standard.

[00:26:35] Speaker 02:
For us.

[00:26:35] Speaker 02:
It's abuse of discretion.

[00:26:36] Speaker 02:
Yes, it is an abuse of discretion standard.

[00:26:38] Speaker 02:
And we would say they didn't hear.

[00:26:39] Speaker 02:
They explained what they were doing.

[00:26:40] Speaker 02:
They explained why.

[00:26:41] Speaker 02:
No, this isn't path-breaking by any means.

[00:26:43] Speaker 02:
This is a matter from Latin A has been around for almost 50 years.

[00:26:46] Speaker 02:
And practitioners generally know if the case never made it on appeal, then you have to file your motions to reopen with the immigration judges.

[00:26:54] Speaker 04:
And if you were to go now and file a motion to reopen with the IJ, would that be numerically barred?

[00:27:01] Speaker 02:
I'm not sure, Your Honor.

[00:27:01] Speaker 02:
I tend to think not, only because in its decision, the board said, we're not considering this at all for the motion to reopen parts.

[00:27:09] Speaker 02:
They had said, oh no, you've filed in the wrong place.

[00:27:11] Speaker 02:
And they instructed in that footnote, this stuff should be filed with the immigration judge.

[00:27:15] Speaker 02:
So I don't know that he would be numerically barred at this point.

[00:27:19] Speaker 04:
So which is to say that a motion filed in the wrong place just doesn't count toward the number bar?

[00:27:26] Speaker 02:
Yeah, where the board says, we're not considering this.

[00:27:29] Speaker 00:
Do you understand, Mr. Stolzer, that the underlying merits of this, as I understand it, in terms of any proffer of what the cause of action was, essentially in challenging this, is the never-ending battle between the Anglophiles and the Francophiles and Cameroon, which continues to this day.

[00:27:45] Speaker 00:
Isn't that the thrust of this?

[00:27:47] Speaker 02:
I know that's one claim that he wanted to make.

[00:27:49] Speaker 02:
It's not one that the board ever reached.

[00:27:50] Speaker 00:
Right.

[00:27:51] Speaker 00:
My point is, for whatever reason, it was never litigated in front of the immigration judge, correct?

[00:27:57] Speaker 02:
Yeah, he didn't rule on that basis.

[00:27:58] Speaker 00:
What other issues were even potentially to be raised other than that, in terms of—as I understand it, the situation changed, so the Francophiles dominate the French-speaking portion of Cameroon to the detriment of the Anglophiles, English-speaking people of Cameroon.

[00:28:13] Speaker 00:
Apart from that issue, what other potential issue was ever even brought on the horizon?

[00:28:17] Speaker 02:
Well, I know now he wants to apply for adjustment through his US citizen wife.

[00:28:23] Speaker 02:
And at the time, the immigration judge actually discussed adjustment with him in two of the hearings, saying that you have to file some forms for this, we don't have the forms yet, and eventually deemed that application abandoned.

[00:28:33] Speaker 02:
I know Petitioner, after the immigration judge's decision, filed copies of an I-130 immigration petition from the wife, so there was more factual development of that, but that all came later.

[00:28:44] Speaker 02:
So again, that would all end up

[00:28:45] Speaker 00:
In terms of being dealt with by the immigration judge in terms of taking evidence and making findings.

[00:28:51] Speaker 00:
Right.

[00:28:51] Speaker 02:
And again, that's essentially why the place of filing rule exists, because on this merit stuff that the board has never had an opportunity to reach, the immigration judge is the expert on that, and they need to address it first.

[00:29:04] Speaker 02:
Thank you.

[00:29:04] Speaker 02:
If there are no other questions, Your Honors.

[00:29:07] Speaker 02:
Thank you very much.

[00:29:07] Speaker 02:
Thank you for your time.

[00:29:17] Speaker 01:
Good morning, Your Honors.

[00:29:20] Speaker 01:
First, as to the withdrawal decision, as Your Honors were mentioning, Mr. Alabi sought both reopening and reconsideration for the reasons that you mentioned.

[00:29:30] Speaker 01:
He thought it was wrong at the time.

[00:29:31] Speaker 01:
That's appropriate for reconsideration.

[00:29:33] Speaker 01:
And he thought he had new evidence to submit to show even not on the record that they had a time with this new evidence that the decision should be reopened.

[00:29:45] Speaker 01:
The board did not address that.

[00:29:47] Speaker 03:
Well, if they were going to deny the motion to reconsider, they didn't really have to get to motion reopen, did they?

[00:29:55] Speaker 01:
Yes, they did.

[00:29:55] Speaker 01:
If they're two separate bases for returning the... Oh, sorry.

[00:30:00] Speaker 01:
No, go ahead.

[00:30:02] Speaker 01:
Because reopening and reconsideration are two separate bases for returning a case to before the agency, you could say no reconsideration isn't warranted, but reopening is.

[00:30:13] Speaker 01:
And that was a problem here because the board found that it didn't want to hear the case because, as opposing counsel mentioned, they didn't think that there was an error of law or fact.

[00:30:23] Speaker 01:
What Mr. Alabi was also arguing was that there was new and previously unavailable material evidence that warranted reopening.

[00:30:31] Speaker 01:
That was not a suespante request.

[00:30:33] Speaker 01:
This was a timely motion under the statute.

[00:30:35] Speaker 03:
So I asked for the motion to reconsider.

[00:30:37] Speaker 03:
How did the, leaving aside jurisdiction and all that, what's wrong with the decision of the board?

[00:30:45] Speaker 03:
I mean, it's abuse of discretion review.

[00:30:47] Speaker 03:
And they said, you know, you got bad advice, so what?

[00:30:52] Speaker 03:
You know, there's nothing wrong with that, is there?

[00:30:54] Speaker 01:
I think that there is, Your Honor.

[00:30:55] Speaker 01:
I think that first, they looked at it under the wrong standard.

[00:30:59] Speaker 01:
They didn't look at whether it met the standard for reopening, so that's one legal error.

[00:31:03] Speaker 01:
And in addition, because of perhaps their sort of parsimonious reading of what Mr. Olabi was requesting, they didn't look at all of the new evidence in front of them, which suggested this wasn't a tactical gambit, as they mentioned, but instead this was somebody who didn't know that his motion was gonna end his appeal, had been confused through the entire process,

[00:31:23] Speaker 01:
And was in fact, there was presented evidence that he was assuming that his appeal would continue.

[00:31:30] Speaker 01:
His family was continuing to look for a lawyer for him to represent him in this.

[00:31:34] Speaker 01:
And so because the board didn't consider that, its decision was necessarily incorrect in finding that this was a tactical gambit, not warranting reinstating the appeal.

[00:31:46] Speaker 01:
With that in mind, I would request that the

[00:31:51] Speaker 01:
decision to be vacated and remanded for proper treatment of the rule as non-jurisdictional and reinstatement of the appeal.

[00:32:00] Speaker 00:
Thank you.

[00:32:01] Speaker 04:
Thank you very much.

[00:32:02] Speaker 01:
Thank you.

[00:32:02] Speaker 04:
Thank both counsel for their helpful arguments and the cases submitted.