[00:00:00] Speaker 01:
And we will move on to the second argument, which is de Oliveira versus Garland, case number 23-4123.

[00:00:56] Speaker 01:
Miss Domingos.

[00:01:14] Speaker 02:
Good morning.

[00:01:15] Speaker 02:
I'm here to represent Naira Cynthia and her son, John Vitor.

[00:01:20] Speaker 02:
Myself and the attorney for the government decided to have the decision on the briefs, but we are requested to do the oral argument.

[00:01:27] Speaker 04:
Excuse me.

[00:01:28] Speaker 04:
You are not entitled to have a decision on the briefs because you say so.

[00:01:31] Speaker 02:
Yes.

[00:01:32] Speaker 02:
Yes.

[00:01:33] Speaker 04:
And I think there seems to be massive misunderstanding about that among the bar.

[00:01:38] Speaker 04:
The arguments are not for your benefit, they're for our benefit.

[00:01:43] Speaker 04:
The commitment to represent somebody includes a commitment to show up for argument if we decide to have argument.

[00:01:51] Speaker 02:
Understood.

[00:01:51] Speaker 04:
And I've never heard anybody say that before, that you've agreed not to have argument.

[00:01:55] Speaker 04:
You can't agree not to have argument.

[00:01:57] Speaker 02:
I'm here to ask to hold the decision in abeyance due to the primary petitioner, the Avowa petitioner, and her petition is currently pending with USCIS.

[00:02:11] Speaker 01:
Okay, and I wanted to ask about that because it would be helpful if you gave us some background on where that stands.

[00:02:18] Speaker 01:
She's got a hearing set for the 20th.

[00:02:21] Speaker 02:
Her son has a hearing set for another matter that gives him special immigrant juvenile status that's different from VAWA.

[00:02:29] Speaker 02:
They both are eligible to different things.

[00:02:32] Speaker 01:
Her son is under 21, so he's also eligible for VAWA as a derivative of his mother.

[00:02:45] Speaker 02:
They would be entitled as long as they meet the requirements, and they are both prima facie eligible.

[00:02:52] Speaker 02:
USCIS has already said that she is prima facie eligible to vow violence against women.

[00:03:00] Speaker 02:
Unfortunately, about three years.

[00:03:02] Speaker 02:
It's been pending.

[00:03:04] Speaker 02:
That's the current estimate from USCIS.

[00:03:08] Speaker 02:
but I request that she doesn't get punished and sent back to a country where she may be persecuted due to USCIS taking a long time to decide.

[00:03:18] Speaker 02:
It's been pending already for about a year.

[00:03:21] Speaker 02:
We already.

[00:03:22] Speaker 04:
What is the basis for that?

[00:03:24] Speaker 04:
I couldn't tell from the record whether it's based on domestic relations.

[00:03:28] Speaker 02:
Correct.

[00:03:29] Speaker 04:
But is it the partner that was here in the US?

[00:03:34] Speaker 02:
Correct.

[00:03:35] Speaker 04:
Is he still here in the US?

[00:03:36] Speaker 02:
Correct.

[00:03:38] Speaker 02:
She was married to her.

[00:03:39] Speaker 04:
It doesn't have anything to do with her going back, because he's not there.

[00:03:47] Speaker 04:
No.

[00:03:48] Speaker 04:
He's not in Brazil, he's here.

[00:03:49] Speaker 02:
No, it does grant.

[00:03:51] Speaker 04:
So she's not in greater danger if she goes back, she's probably in greater danger if she stays.

[00:03:56] Speaker 02:
There are two different things.

[00:03:57] Speaker 02:
The VAWA gives her a legal status and pathway to citizenship.

[00:04:02] Speaker 04:
But in terms of you said she's gonna go back to a place where she would be in danger,

[00:04:06] Speaker 04:
And that depends on the merits of your claim, which are very weak, actually.

[00:04:12] Speaker 04:
As to the visa, which is based on domestic relations danger, the danger is here, not in Brazil.

[00:04:21] Speaker 02:
Correct.

[00:04:23] Speaker 02:
And her son is also eligible for special immigrant juvenile status.

[00:04:27] Speaker 02:
Due to financial constraints, it took a long time to get that moving, but we do have a hearing scheduled for the 20th of December.

[00:04:36] Speaker 01:
And I guess we'll find out on the 20th whether they'll decide at that time whether it's prima facie valid.

[00:04:42] Speaker 02:
There will be hopefully a predicate order from the King County Juvenile Court saying that he's eligible for that.

[00:04:50] Speaker 02:
After that, we can submit the I-360 petition with USCIS.

[00:04:54] Speaker 01:
That's another three years.

[00:04:55] Speaker 02:
No, that is actually very fast.

[00:04:58] Speaker 02:
Usually it takes about a month or two.

[00:05:01] Speaker 01:
And if he were to get status, what effect would that have on her?

[00:05:06] Speaker 02:
None.

[00:05:10] Speaker 01:
but would give him legal status.

[00:05:18] Speaker 01:
if we delay them.

[00:05:20] Speaker 01:
I mean, what is the basis, you know, what is the basis for delay?

[00:05:24] Speaker 01:
How do we decide that?

[00:05:25] Speaker 01:
It seems to me that that's tantamount to asking for a stay.

[00:05:29] Speaker 01:
And if you're asking for a stay, then we gotta look at the Nikken factors or, you know, some factors.

[00:05:36] Speaker 01:
There has to be a likelihood of success on the merits.

[00:05:39] Speaker 01:
But I think it has to be a likelihood of success on the merits in this present case, or that it would affect the likelihood of success on the merits in this present case.

[00:05:47] Speaker 01:
And I don't, even if there's some subsequent relief that may or may not be granted, how does that have a bearing on this particular case?

[00:05:58] Speaker 01:
Why shouldn't we decide this case before us?

[00:06:03] Speaker 02:
She shouldn't be punished because of USCIS delay.

[00:06:07] Speaker 02:
She would potentially have already a legal status that would be in the same position.

[00:06:12] Speaker 01:
I mean,

[00:06:14] Speaker 01:
If she didn't have, you know, uh, if she didn't have this, I mean, she has a not meritorious claim currently.

[00:06:24] Speaker 01:
Why should we hold that just because she may or may not have a subsequent meritorious claim?

[00:06:32] Speaker 01:
I mean.

[00:06:34] Speaker 02:
Because she's a human being who has been abused in the United States by her LPR husband.

[00:06:39] Speaker 01:
And she continued to pursue the I-130 visa if she is removed?

[00:06:45] Speaker 02:
She could potentially cause a hardship for her.

[00:06:49] Speaker 04:
But what about the son?

[00:06:55] Speaker 04:
Are his prospects of getting the visa affected if we affirmed the deportation, the removal order?

[00:07:05] Speaker 02:
If he had a removal order that's final, he would still be eligible for the status.

[00:07:13] Speaker 02:
We would have to then reopen and terminate his case.

[00:07:18] Speaker 02:
I would probably just file a motion to stay with ICE to keep him in the country.

[00:07:25] Speaker 02:
Hopefully, yes, if USCIS does as it has been doing.

[00:07:31] Speaker 02:
We don't know with the new president.

[00:07:33] Speaker 01:
And that is an automatic, there's no discretion involved in that.

[00:07:36] Speaker 02:
No, you meet the requirements, you get it.

[00:07:38] Speaker 02:
And I have done that for many clients.

[00:07:42] Speaker 02:
And he's not married.

[00:07:43] Speaker 02:
He's under 21.

[00:07:44] Speaker 02:
His father is in Brazil and abandoned and neglected him.

[00:07:49] Speaker 01:
Well, look, I get that these are tragic circumstances.

[00:07:55] Speaker 01:
And I think what we're, at least what I'm grappling with, is how do we do this in a way that comports with the law?

[00:08:03] Speaker 01:
Because we can't just start granting stays for every claim out there.

[00:08:08] Speaker 01:
I mean, our caseload is already unworkable.

[00:08:12] Speaker 01:
And, you know, we can't just put all of these cases in abeyance.

[00:08:17] Speaker 01:
So what is the basis?

[00:08:19] Speaker 01:
And I guess you're, I mean, is there a legal basis or are you just basically saying, I'm putting myself at the mercy of the court?

[00:08:25] Speaker 02:
Exactly, Your Honor.

[00:08:26] Speaker 02:
I'm asking for their safety in their lives.

[00:08:30] Speaker 02:
They have been already through a lot in Brazil and the United States.

[00:08:34] Speaker 01:
I'm not so sure it's fair to say you're asking for the safety in their lives.

[00:08:37] Speaker 01:
I understand the inconvenience.

[00:08:39] Speaker 01:
I understand that not splitting up a mother and her son, I understand that.

[00:08:45] Speaker 01:
But I don't think we should overstate.

[00:08:47] Speaker 01:
I mean, when you say safety in their lives, what are you saying?

[00:08:51] Speaker 01:
What's the threat?

[00:08:53] Speaker 01:
What's the safety in their lives that we're talking about?

[00:08:55] Speaker 02:
And they have eligible relief for a pathway to citizenship that's going to be thrown away.

[00:09:02] Speaker 04:
I mean, the problem with your underlying claim is that the attack was against the partner.

[00:09:07] Speaker 04:
I mean, it's very dubious that it was on any protected ground.

[00:09:14] Speaker 04:
But aside from that, he's not even the partner anymore.

[00:09:17] Speaker 04:
So why would she be in any danger to go back to Brazil?

[00:09:21] Speaker 02:
because they know that she was being held as his wife at the moment.

[00:09:25] Speaker 03:
It was, but she isn't.

[00:09:27] Speaker 02:
She's not, that's correct.

[00:09:29] Speaker 03:
So to pursue that, I want to give you a chance to do as good a job as you can.

[00:09:34] Speaker 03:
Help me understand why she's in danger if she goes back to Brazil.

[00:09:41] Speaker 02:
The loan sharks that have threatened her family would still potentially harm them.

[00:09:47] Speaker 03:
And you're saying that despite the fact that she's no longer married, they're domestic, but she doesn't separate?

[00:09:52] Speaker 02:
They don't forget things.

[00:09:53] Speaker 02:
And that they were never her dads?

[00:09:55] Speaker 02:
They wouldn't forget it.

[00:09:56] Speaker 02:
They still want what they do, and they want compliance.

[00:10:00] Speaker 02:
And if people don't comply, they do what they say, which is take their lives.

[00:10:04] Speaker 04:
But they never threatened her, did they?

[00:10:06] Speaker 02:
They threatened the family as a whole.

[00:10:08] Speaker 04:
They threatened what?

[00:10:09] Speaker 02:
The family as a whole.

[00:10:11] Speaker 03:
And in what form did that threat take?

[00:10:14] Speaker 03:
Describe it to me in detail, if you can.

[00:10:16] Speaker 02:
I believe it was verbal.

[00:10:18] Speaker 03:
And verbal to whom?

[00:10:20] Speaker 02:
To the partner at the time, including whoever was considered to be his family.

[00:10:26] Speaker 02:
In Brazil, there is this common law marriage.

[00:10:29] Speaker 03:
No, help me out with more detail.

[00:10:31] Speaker 03:
Who said what to whom?

[00:10:34] Speaker 02:
The loan sharks told her partner at the time that they would be harmed due to this debt.

[00:10:41] Speaker 03:
The loan shark at the time told the partner that the partner would be harmed and that the family would be harmed.

[00:10:46] Speaker 03:
Yes.

[00:10:47] Speaker 03:
Did anyone ever say anything to her?

[00:10:49] Speaker 02:
Not as far as I know.

[00:10:51] Speaker ?:
Okay.

[00:10:53] Speaker 01:
Okay.

[00:10:54] Speaker 01:
Do you want to reserve?

[00:10:55] Speaker 01:
Yes, Your Honor.

[00:10:56] Speaker 01:
Thank you so much.

[00:10:57] Speaker 01:
Thank you.

[00:11:10] Speaker 00:
Good morning, Your Honors.

[00:11:10] Speaker 00:
May it please the Court, my name is Elizabeth Altman on behalf of the Attorney General.

[00:11:14] Speaker 00:
I'd like to start with just talking about the visa applications that are at issue here.

[00:11:19] Speaker 00:
So we have the VAWA self-petition that is currently pending with USCIS.

[00:11:23] Speaker 01:
Is that a three-year time frame to get decided?

[00:11:25] Speaker 00:
Yes, I do believe based on what I looked up, there's a 41-month processing time currently for the I-360 for VAWA self-petitioners.

[00:11:33] Speaker 01:
What effect would a removal have on that?

[00:11:36] Speaker 01:
Would it slow it?

[00:11:37] Speaker 00:
No, Your Honor.

[00:11:38] Speaker 00:
She can still pursue that even if she is ultimately removed from Brazil.

[00:11:41] Speaker 00:
The only thing that would change is she couldn't adjust her status.

[00:11:43] Speaker 00:
She would have to consular process through a consulate abroad.

[00:11:46] Speaker 00:
But she would still benefit from the waiver provisions that would, so she wouldn't have to get an unlawful presence waiver or any of the other waivers that one might normally have to get from a removal order or to waive her.

[00:11:58] Speaker 01:
But would the burden be on her?

[00:12:00] Speaker 01:
So if we grant, well first of all, would the government remove her?

[00:12:06] Speaker 01:
And in in the next three, I mean, I know it's hard to make a commitment over the next three years, but normally, I mean, I only say this because I'm dealing with another case where the government came in, asked for a stay of removal for an immigrant who was detained.

[00:12:23] Speaker 01:
We granted it, which is fairly or excuse me.

[00:12:27] Speaker 01:
Yeah, lifted the stay of removal.

[00:12:29] Speaker 01:
And that was a year and a half ago.

[00:12:30] Speaker 01:
and the government's never removed them.

[00:12:33] Speaker 01:
I just have this feeling that we're doing a lot of work that really is largely academic, because it doesn't seem like the government's removing.

[00:12:43] Speaker 01:
So my question is, what's the likelihood that even if we denied the petition, she would be removed pending her I-130?

[00:12:52] Speaker 00:
That is a very good question and I can't necessarily speak to the Department of Homeland Security They have full discretion over how to execute and when to execute a removal order Certainly if the court does deny the PFR and the removal order is final.

[00:13:05] Speaker 00:
They can execute it at any time There's no regulation there's no policy right there is a policy memo under it's the Doyle memo

[00:13:15] Speaker 00:
That is currently in effect after United States v. Texas that cover that would cover though She could certainly reach out to you Department of Homeland Security and try to seek an administrative stay of removal after the decision citing the Doyle memo, which does have It does talk about VAWA self petitioners as being a discretionary Factor to consider in helping and trying to get them to wait for an adjudication on the case however I mean it is a very

[00:13:44] Speaker 00:
speculative form of relief at this time, even with her prima facie determination, I would just point the court to 8 CFR 204.2 A6, excuse me, Romanet 4, which talks about the prima facie determination.

[00:13:58] Speaker 00:
It's really just a screening requirement, or excuse me, it looks at the screening eligibility.

[00:14:04] Speaker 00:
And it says quite clearly that it shall not be construed to make a determination on the credibility or probative value of the evidence that's been submitted.

[00:14:13] Speaker 00:
It allows those who have filed to get benefits, public benefits, while they're waiting for their petition to be adjudicated.

[00:14:19] Speaker 00:
So it shouldn't be construed as saying that there's a likelihood of success on her petition.

[00:14:25] Speaker 00:
So there is still a chance at the end of the processing.

[00:14:27] Speaker 01:
And what goes into it is it's all based on the domestic violence?

[00:14:30] Speaker 00:
Yes, so there's a, there's a, she submitted her I-360 application, her VAWA self-petition, and there's a certain screening requirements that go through that USDA has.

[00:14:40] Speaker 04:
The determination that if she, if what she says is, do we, first of all, we don't have this petition in the record, we don't know.

[00:14:46] Speaker 00:
No, we don't, Your Honor.

[00:14:47] Speaker 04:
But it's, is this a determination that if what she says is true is credited after a hearing or further determination, then she gets the visa?

[00:15:00] Speaker 00:
I assume as much.

[00:15:02] Speaker 00:
I'm not entirely sure what USCIS' process is in terms of what happens after the prima facie case, but the regulation is quite clear that the prima facie determination should not be construed as a likelihood of success.

[00:15:14] Speaker 04:
Well, because she could be lying.

[00:15:15] Speaker 04:
That's possible.

[00:15:16] Speaker 00:
Well, certainly, I guess, yes.

[00:15:17] Speaker 04:
But what I'm asking is if she's not lying.

[00:15:20] Speaker 00:
I think that's correct.

[00:15:21] Speaker 00:
If they determine that she's not lying.

[00:15:24] Speaker 00:
Yes, I think that's correct.

[00:15:25] Speaker 03:
Does it affect the VAWA application if the danger is here in the United States and she's removed to Brazil, which means now she's quite some distance from the danger.

[00:15:38] Speaker 03:
Does that affect the VAWA determination?

[00:15:41] Speaker 00:
I don't believe so, Your Honor.

[00:15:42] Speaker 00:
I'm pretty positive that they can still pursue the VAWA self-petition while abroad.

[00:15:46] Speaker 00:
It would just change that she can't adjust her status while in the United States.

[00:15:52] Speaker 00:
This goes back to the speculative form.

[00:15:55] Speaker 00:
Once the I-360 is approved, or if it's approved, she would still need to wait for her priority date to become current in order to adjust her status or consular process.

[00:16:06] Speaker 00:
That is based on the Department of State's visa bulletins, which change every month.

[00:16:11] Speaker 03:
Right now, based on... Let me understand what you just said.

[00:16:14] Speaker 03:
You said she cannot apply for adjustment of status if she's in Brazil.

[00:16:18] Speaker 00:
If she's in Brazil, she would consulate process.

[00:16:19] Speaker 03:
I think I just heard you say that that's going to place her in the back of a long line that she otherwise would not be in.

[00:16:25] Speaker 00:
No, either way she's... Sorry, excuse me.

[00:16:26] Speaker 00:
Either way, she will have to wait for her priority date to become current.

[00:16:30] Speaker 00:
whether she's in the United States or abroad.

[00:16:33] Speaker 03:
So tell me again, because you've been talking kind of in code to me.

[00:16:37] Speaker 03:
I'm sorry.

[00:16:37] Speaker 03:
Well, it's not your fault.

[00:16:39] Speaker 03:
In terms of the practical adverse consequence if she's in Brazil compared to being in the United States.

[00:16:45] Speaker 00:
I don't think there are adverse consequences other than she's in Brazil and she would prefer to be in the United States.

[00:16:51] Speaker 03:
No, but you just said that there's something that she cannot do if she's in Brazil.

[00:16:55] Speaker 00:
Adjust status.

[00:16:55] Speaker 00:
Her status will not automatically change from no status to LPR.

[00:17:01] Speaker 00:
which is lawful permanent residence or a green-called order.

[00:17:04] Speaker 00:
Instead, she would go to the U.S.

[00:17:06] Speaker 00:
Consulate with her approval notice once she's able to, and she'll get an immigrant visa in her passport, and she'll be able to travel back to the United States.

[00:17:14] Speaker 00:
So it's this.

[00:17:14] Speaker 00:
And then once back in the United States?

[00:17:16] Speaker 00:
Then she gets her status.

[00:17:17] Speaker 00:
So it's just whether or not you get your status automatically in the United States or if you have to travel in.

[00:17:22] Speaker 01:
It's not a substantial hurdle.

[00:17:24] Speaker 04:
Yes.

[00:17:25] Speaker 04:
A couple things.

[00:17:26] Speaker 04:
First of all, do you know whether the claim of domestic violence is

[00:17:31] Speaker 04:
former partner when it was in Brazil?

[00:17:35] Speaker 00:
I'm pretty confident that it is not, it's not.

[00:17:37] Speaker 00:
Renato Silva is, she's not with him and he I believe is also also in the United States.

[00:17:43] Speaker 00:
They get traveled in together and then shortly after the entry separated.

[00:17:47] Speaker 04:
Best for Violence claim was with a card to the person she married after that?

[00:17:51] Speaker 00:
Shortly after she entered the United States she married someone.

[00:17:53] Speaker 00:
She actually did start green card proceedings with him just as his spouse.

[00:18:00] Speaker 00:
And then, I think subsequently, abuse started.

[00:18:03] Speaker 00:
And so she then started to pursue the VAWA self-petition.

[00:18:05] Speaker 04:
Secondly, there was also a... Oh, I see.

[00:18:09] Speaker 04:
So that the pending proceedings based on her marriage are not ongoing anymore?

[00:18:19] Speaker 00:
I don't believe so.

[00:18:20] Speaker 00:
But that's what the benefit of the VAWA is, that she can still get her green card through him.

[00:18:24] Speaker 04:
Yeah.

[00:18:25] Speaker 04:
What about the son?

[00:18:27] Speaker 04:
She just has one visa pending at this point.

[00:18:33] Speaker 04:
She doesn't have the one based on her marriage.

[00:18:36] Speaker 04:
What about the son?

[00:18:38] Speaker 00:
So what we learned yesterday was that Opposing Council or Petitioners Council filed the very, very preliminary document

[00:18:46] Speaker 00:
required to get a special immigrant juvenile status.

[00:18:48] Speaker 00:
So that is bifurcated proceedings.

[00:18:51] Speaker 00:
So the first part is you have to get a state court's predicate order that says that the child that's the hearing on the 20th.

[00:18:59] Speaker 00:
I believe I was looking into Washington State Court procedures for special immigrant juvenile.

[00:19:05] Speaker 00:
And I believe that's what the hearing is on the 20th.

[00:19:09] Speaker 00:
So at that time, he, and Washington State has a special law that allows children that are between 18 and 21, which he is, he's going to turn 21 in August, I believe, of next year.

[00:19:20] Speaker 01:
That put him out?

[00:19:22] Speaker 00:
If he has to file his SIJ before August or else he's not eligible for SIJ.

[00:19:27] Speaker 00:
So that's another interesting factor.

[00:19:29] Speaker 01:
But presumably he would be able to file that.

[00:19:31] Speaker 01:
Presumably.

[00:19:32] Speaker 01:
After December 20th.

[00:19:34] Speaker 01:
Presumably if he gets his predicate order on the 20th, then then he can file his you have any reason to believe that The representation was inaccurate that that would only take a couple of months.

[00:19:47] Speaker 00:
I'm not positive about that.

[00:19:49] Speaker 00:
I Was initially it's the same form But I'm realizing that I didn't click when I was checking processing times I'm not positive what the processing times are for the

[00:19:59] Speaker 00:
So I thought it was initially the same as his mother, 41 months, but I'm not positive about that.

[00:20:04] Speaker 00:
So I unfortunately can't know.

[00:20:06] Speaker 04:
Well, we've had these before, and I do think she's basically right.

[00:20:09] Speaker 00:
Yeah.

[00:20:09] Speaker 00:
He would still need to wait for his priority date.

[00:20:11] Speaker 04:
I wish we had a hearing in immigration court for these things.

[00:20:15] Speaker 04:
They're very moving, actually.

[00:20:18] Speaker 00:
Yeah, he would still need to wait for his priority date to become current.

[00:20:21] Speaker 00:
So even once he gets the SIJ process in order to get the green card, he still needs to wait for that priority date, which is based on when he files the SIJ application.

[00:20:31] Speaker 00:
So that date becomes

[00:20:33] Speaker 00:
Do you have any sense of when that would happen?

[00:20:35] Speaker 00:
I do.

[00:20:36] Speaker 00:
He would be, I believe, under the employment-based fourth preference category, which is currently processing applications that were filed in February of 2021.

[00:20:45] Speaker 00:
So assuming he's filing in December 2024.

[00:20:49] Speaker 04:
But that doesn't matter as to his ability to stay in the country.

[00:20:54] Speaker 00:
No, but it does.

[00:20:55] Speaker 00:
Excuse me.

[00:20:56] Speaker 04:
Or the 21-year cutoff date.

[00:20:59] Speaker 00:
No.

[00:21:01] Speaker 00:
But he would still likely be able to get the derivative status from his mom if they are both removed as a derivative of her Bible petition.

[00:21:07] Speaker 01:
What is the government's position on the motion that was filed last night?

[00:21:11] Speaker 01:
Should we hold this in abeyance?

[00:21:13] Speaker 01:
I mean, for two weeks or three weeks?

[00:21:19] Speaker 00:
The we feel that the the decision before the court is the asylum withholding in cat decision, and we don't feel that this it's a

[00:21:29] Speaker 00:
We think that moving to an adjudication on that petition is what should happen in this case.

[00:21:35] Speaker 00:
However, if the... One question about that.

[00:21:37] Speaker 04:
Yes.

[00:21:38] Speaker 04:
Was... Is there anything in the record that indicating that... We note she wasn't directly threatened.

[00:21:46] Speaker 04:
Was he threatened that she would be hurt?

[00:21:50] Speaker 00:
No, Your Honor, there's nothing in the record.

[00:21:52] Speaker 00:
The I.J.

[00:21:52] Speaker 00:
really did ask Ms.

[00:21:56] Speaker 00:
Pereira numerous times.

[00:21:57] Speaker 00:
I think I counted six in multiple different ways on whether or not she was ever threatened, if her children were threatened, if they were ever threatened with harm, if they were ever harmed, and she was very clear that no one was.

[00:22:07] Speaker 04:
But what about if her partner was threatened, that she would be hurt?

[00:22:10] Speaker 04:
I think she interpreted that there was a possible fear of future harm.

[00:22:14] Speaker 04:
But not because of anything that she said was said?

[00:22:17] Speaker 00:
Not in the testimony that was provided to the immigration judge that I read.

[00:22:22] Speaker 03:
I want to make sure what I heard.

[00:22:23] Speaker 03:
You're saying that there was no threat to him, that the family would be threatened?

[00:22:28] Speaker 00:
Not that I read in the testimony, not that she testified to, no.

[00:22:33] Speaker 00:
She just inferred it.

[00:22:35] Speaker 00:
She inferred.

[00:22:35] Speaker 00:
I think she, which is understandable.

[00:22:39] Speaker 01:
So the government's position remains that we should decide this now and let the subsequent happen.

[00:22:46] Speaker 01:
Yes.

[00:22:47] Speaker 04:
But if we did decide it now, the mandates still wouldn't issue for long enough to let these 20 days run.

[00:23:02] Speaker 04:
I mean, now it wouldn't be tomorrow.

[00:23:04] Speaker 04:
It could be tomorrow, but it could be a week from now, whatever.

[00:23:10] Speaker 04:
At least without any formal stay, we will know the result of the state court proceeding.

[00:23:17] Speaker 00:
Yes.

[00:23:18] Speaker 00:
And she can still seek to file a motion to remove the board.

[00:23:22] Speaker 00:
She still can pursue discretionary relief through the Department of Homeland Security.

[00:23:26] Speaker 00:
There are still other options available to her based on what does eventually happen that could allow her to remain in the United States.

[00:23:35] Speaker 04:
What discretionary relief?

[00:23:36] Speaker 04:
I'm sorry.

[00:23:37] Speaker 00:
The administrative stay of removal through the Department of Homeland Security is probably the primary one that I would think she would want to pursue.

[00:23:45] Speaker 01:
The larger concern here, and I'm sensitive to the statement that, you know, she's a human.

[00:23:51] Speaker 01:
But at the end of the day, we, you know, there's

[00:23:54] Speaker 01:
I mean, the Constitution gives the executive branch certain duties and the judicial branch certain duties.

[00:23:59] Speaker 01:
And it seems like it's the executive branch's responsibility to sort of take those considerations into account.

[00:24:06] Speaker 01:
I worry when the judicial branch starts taking those into account.

[00:24:11] Speaker 01:
And I mean, I would hope that somebody is taking those into account, but I, you know, we're,

[00:24:16] Speaker 01:
I'm probably preaching to the choir here, but we're tasked with enforcing the law.

[00:24:24] Speaker 01:
But sometimes we get put in tough positions like this.

[00:24:27] Speaker 01:
I mean, if he really has valid

[00:24:29] Speaker 01:
claim, which I guess we'll find out, we don't exactly want to participate in making their lives more difficult than they need to be.

[00:24:40] Speaker 00:
Certainly, and we fully understand that, Your Honor.

[00:24:43] Speaker 04:
Two other questions.

[00:24:44] Speaker 04:
Sure.

[00:24:45] Speaker 04:
At least at times, the government has been willing to mediate cases like this, where you have pending petitions.

[00:24:56] Speaker 04:
Would you have any, what would your reaction to that be?

[00:24:59] Speaker 00:
I think our preference would be to proceed to an adjudication just based on the fact that this is fully briefed, it's we're here.

[00:25:06] Speaker 04:
How does the government decide when sometimes I ask that question they say yes and these you know these kinds of circumstances where there are pending visa petitions and sometimes you say no and is there any principles about

[00:25:19] Speaker 00:
Yes.

[00:25:20] Speaker 00:
Yes, Your Honor, we do try to have principles about that.

[00:25:22] Speaker 00:
I think it really is based on how many resources have been put into it, where they are in their visa application process.

[00:25:29] Speaker 00:
Well, they're both pretty far along, actually.

[00:25:30] Speaker 00:
Especially in this court, we do look to SARCAR as a guiding light in terms of how we think about advances and administrative closure and things like that.

[00:25:41] Speaker 04:
But she's... I mean, the only reason she is held up like this is because the agency is way behind.

[00:25:51] Speaker 04:
And he, I mean, I don't know the exact circumstances, but those proceedings, as you said, once he gets the state, if he gets the state approval, isn't it fairly pro forma after that?

[00:26:09] Speaker 04:
I believe so.

[00:26:10] Speaker 04:
But again, it's, I can't really.

[00:26:12] Speaker 04:
So if he gets the state approval, there would be,

[00:26:18] Speaker 04:
At that point, would you agree to a stay of the proceedings?

[00:26:23] Speaker 00:
Well, I think then it gets a little tricky in terms of the primary practitioner doesn't really have any form of relief through the SIJ.

[00:26:32] Speaker 00:
So even if that becomes a more immediate option.

[00:26:34] Speaker 04:
I know, but he could get the relief and she could leave.

[00:26:37] Speaker 00:
That's true.

[00:26:38] Speaker 00:
That's true.

[00:26:39] Speaker 00:
We could sever and do it that way.

[00:26:41] Speaker 00:
Certainly, if your honors would like this case to go to mediation, we would be happy to do so.

[00:26:45] Speaker 04:
I didn't hear that.

[00:26:47] Speaker 00:
If your honors would like this case to go into mediation, we would acquiesce.

[00:26:51] Speaker 01:
As to one, as to the son or the, I mean, cause I, the concern I have about the, uh, the mother is, I mean, you're talking about a three year process and as you indicated there, that's less like, or we're not, it's less sure that she'll get it.

[00:27:07] Speaker 01:
I think is what I heard you say.

[00:27:09] Speaker 00:
It's, I don't know if I would say it's less sure.

[00:27:10] Speaker 00:
It's just, it's, I mean, it's,

[00:27:14] Speaker 00:
longer, certainly, farther away from an adjudication.

[00:27:17] Speaker 04:
One last thing.

[00:27:18] Speaker 04:
I didn't hear quite what you said you'd be happy to do.

[00:27:22] Speaker 00:
If Your Honors would like to put this in mediation, the government would acquiesce.

[00:27:26] Speaker 04:
I mean, it seems like the Sun issue could be resolved quickly.

[00:27:31] Speaker 04:
I mean, it would be just really easier if we just waited 20 days.

[00:27:36] Speaker 04:
Let somebody tell us whether he's gotten this.

[00:27:39] Speaker 04:
And at that point, you say it's pretty pro forma.

[00:27:43] Speaker 04:
We could either send it to mediation, or at that point, you can just agree to a stay for him, at least.

[00:27:48] Speaker 01:
Sure.

[00:27:48] Speaker 01:
Yes.

[00:27:50] Speaker 01:
OK.

[00:27:51] Speaker 01:
Thank you.

[00:27:52] Speaker 00:
Thank you, Your Honor.

[00:27:59] Speaker 02:
I would like to point out that if they are removed, the son would no longer be eligible for the special immigrant juvenile status.

[00:28:06] Speaker 02:
You have to be in the country.

[00:28:08] Speaker 02:
The other thing is there is a current lawsuit made by a nonprofit.

[00:28:14] Speaker 02:
Correct.

[00:28:16] Speaker 02:
Washington state is on the priority list for adjudication of special immigrant juvenile status.

[00:28:22] Speaker 02:
So things have been moving quickly lately for SIJ.

[00:28:28] Speaker 02:
So usually within a couple months, it is resolved.

[00:28:32] Speaker 02:
And with that approval,

[00:28:36] Speaker 02:
Most times there is a deferred action, so he would be eligible to stay in the United States.

[00:28:44] Speaker 02:
The other thing is, yes, the prima facie determination doesn't mean necessarily that it's going to be an approval, but there is a lot of evidence on the record that these things are true.

[00:28:56] Speaker 01:
We would know that within two months, theoretically.

[00:28:59] Speaker 02:
For the VAWA, yes.

[00:29:01] Speaker 02:
For the son, we probably would know earlier next year.

[00:29:08] Speaker ?:
Okay.

[00:29:09] Speaker 01:
Thank you.

[00:29:10] Speaker 01:
Thank you to both counsel for helping us in this case.

[00:29:13] Speaker 01:
The case is now submitted and