[00:00:06] Speaker 04:
Good morning, Your Honors.

[00:00:07] Speaker 04:
My name is Tina Malik.

[00:00:09] Speaker 04:
I represent the petitioner in these two matters today.

[00:00:11] Speaker 04:
At the heart of the issue here, we have the immigration judge's oral decision.

[00:00:22] Speaker 04:
Here, the immigration judge did not specify that his decision was a discretionary denial.

[00:00:29] Speaker 04:
If you look at the decision, we have

[00:00:33] Speaker 04:
two sentences, very summarily, where the immigration judge states that he's issuing factual findings on the record and that the factual findings will be found at the end of the testimony and the court has already made its decision.

[00:00:49] Speaker 04:
He did state at the end of the testimony in an extended speech that he intended to deny on discretion, but the board itself in matter of AP analyzes HCFR section 240.9, and that section outlines the contents of the record, discusses the requirements for immigration judges' oral decisions, and specifically states that the oral decision must be a separate and distinct

[00:01:15] Speaker 04:
part of the record from the transcript of the testimony.

[00:01:19] Speaker 04:
Here, as I stated, there was no IJ immigration decision.

[00:01:24] Speaker 04:
There was no factual findings.

[00:01:25] Speaker 04:
There was no legal analysis.

[00:01:29] Speaker 02:
I do have a preliminary question, and that is whether this issue of the sufficiency of the record or the decision

[00:01:39] Speaker 02:
is waived or forfeited because it wasn't raised before the BIA, and I'd appreciate your comments on that.

[00:01:45] Speaker 02:
Sure.

[00:01:46] Speaker 04:
I was not the counsel that handled the appeal.

[00:01:49] Speaker 04:
I understand.

[00:01:51] Speaker 04:
Though I'm sort of limited here.

[00:01:53] Speaker 04:
The respondent in the answering brief cites Rashtabhati v. INS, and that case explains that some exceptions have been carved out

[00:02:04] Speaker 04:
for challenges such as constitutional challenges and INS procedures, such as the denial of the right to confront of a witness, the failure of an immigration judge to advise a respondent of his rights.

[00:02:22] Speaker 04:
Also, the respondent cites Gonzalez Castillo v. Garland, where in that case, the respondent failed to raise the one-year bar issue.

[00:02:34] Speaker 04:
So, because that issue was not raised, the board didn't have the opportunity to pass on it.

[00:02:39] Speaker 04:
Here, we have a different type of error.

[00:02:43] Speaker 04:
We have a complete lack of a decision here.

[00:02:46] Speaker 04:
So, our position here is that this is a different type of situation, specific situations that the board themselves have contemplated in case law.

[00:03:00] Speaker 04:
when deciding what should be contained in immigration judges oral decision or is here we have an entirely complete lack of an oral decision.

[00:03:11] Speaker 00:
So what is it you're asking us to do you would be asked us to send this back to the BIA to then send it back to the IJ to restated effectively.

[00:03:23] Speaker 04:
Yes I'm asking this court to send the case back to the board because there was no way for the board to conduct

[00:03:30] Speaker 04:
a proper analysis, legal analysis, because there was no fact finding by the immigration judge.

[00:03:36] Speaker 01:
Then you'll have the board go back to the immigration judge and search a position there and it'll come back up here.

[00:03:44] Speaker 01:
Is that your view?

[00:03:46] Speaker 04:
Well, my view is that once the case goes back to the board, it will be clear why it was remanded and the board will then have to ask itself,

[00:03:59] Speaker 04:
how it can review a decision that doesn't exist, in which case it will, yes, go back to the immigration court.

[00:04:05] Speaker 04:
And I don't know necessarily that it will come back, because as I stated, there was no real analysis or no real fact finding.

[00:04:14] Speaker 04:
And now we have new evidence that the petitioner filed with the motion to reopen regarding the child's autism diagnosis that didn't exist at the time of the merits hearing before the immigration judge.

[00:04:28] Speaker 02:
But the reality is there was reference to this potential autism problem in the record.

[00:04:35] Speaker 02:
And if it goes back to the immigration judge, the immigration judge would simply say, I indicated that I would deny based on discretion, and now I do so.

[00:04:48] Speaker 02:
And it would come back up to the BIA in the same posture and then come back up to us exactly where we are today, wouldn't it?

[00:04:58] Speaker 04:
well respectfully i i think that the possibility of an autism diagnosis when a child is that young we're not in the same position now the child is older has a formal autism diagnosis is clearly indicated by the evaluations and records that were submitted we're not in the same situation we were in when this case was before the immigration judge originally with the behavioral and educational issues that this child is having

[00:05:27] Speaker 04:
may weigh more heavily with respect to a discretionary analysis and a large part of the judge's decision at the immigration court was the respondent's use of a face social security number, the respondent's

[00:05:44] Speaker 04:
not paying taxes and now he's gone back and paid 10 years of those taxes and those were filed also with the motion to reopen so I don't necessarily believe that if this case goes back down the discretionary analysis is going to be the same.

[00:06:00] Speaker 01:
It seems like to me you're asking for a new trial rather than a review.

[00:06:07] Speaker 01:
You're just telling us that there's some more facts now that you didn't have earlier and now you have them.

[00:06:14] Speaker 01:
If we did that on all appeals, there would be a merry-go-round between the trial court and the appellate courts.

[00:06:23] Speaker 01:
why why did because you didn't get what you wanted in the in the statement of the magic of the lower court the trial court why there was no objection was there to at before the trial court before the first hearing I

[00:06:45] Speaker 04:
Objection in what regard, if I can ask for clarification?

[00:06:48] Speaker 01:
You did not make this, or your client's lawyer at the time did not make an objection in the first instance when the case was being tried.

[00:07:00] Speaker 04:
Well, part of that goes with the motion to reopen where we filed new evidence to show, look, we have changed circumstances now.

[00:07:09] Speaker 01:
I understand you're showing that, but how can you say that the trial, the initial trial judge is faulty when you didn't object before the trial judge?

[00:07:21] Speaker 01:
I understand your position that you found something else and you'd like to have them look at it, but there's a finalization in the trial court.

[00:07:28] Speaker 01:
It has to be so that we can handle that.

[00:07:31] Speaker 01:
You can file another case someplace, I suppose, but I don't quite grasp why the trial court

[00:07:42] Speaker 01:
was being penalized when you never objected on that basis.

[00:07:47] Speaker 01:
Your client did not object on that basis.

[00:07:50] Speaker 04:
Well, with respect to the immigration judge's decision, he couldn't have objected at the time at the trial level because it wasn't issued yet.

[00:08:00] Speaker 04:
It wasn't until the case got to the board where the at that time petitioners council had the oral decision and the transcript of proceedings.

[00:08:10] Speaker 04:
Is that what you're asking?

[00:08:12] Speaker 01:
So you don't object to what happened before, you're only objecting that you got some more evidence now and you want another chance at keeping him in the country for that reason?

[00:08:25] Speaker 04:
Well, sort of.

[00:08:28] Speaker 04:
I'm arguing both.

[00:08:29] Speaker 04:
I am arguing that

[00:08:33] Speaker 04:
the motion to reopen prevents new evidence and change circumstances that could change the decision on discretion.

[00:08:42] Speaker 04:
I am arguing that, but I'm also arguing that the judge's decision does not comply with board precedent or the regulations.

[00:08:50] Speaker 00:
Right, but to jump in here, I think the issue that both of my colleagues have raised is that that could have been raised at the BIA.

[00:08:56] Speaker 00:
Right.

[00:08:57] Speaker 00:
And that wasn't.

[00:08:58] Speaker 00:
So what do we do about that?

[00:08:59] Speaker 00:
I understand the motion to reopen, right?

[00:09:01] Speaker 00:
And I appreciate you're doing everything you can, but how do we get around that problem?

[00:09:08] Speaker 04:
Again, I wasn't the attorney on appeal, so it's hard for me to... I understand, but that's what you're getting paid to do.

[00:09:13] Speaker 00:
So how do we get around that?

[00:09:16] Speaker 00:
And look, I want to give you some time for rebuttal.

[00:09:19] Speaker 00:
So if you want to think about it and reserve some time and get back to us on that.

[00:09:23] Speaker 03:
sure I'll do that alright so let's go let's go two minutes for rebuttal right thank you we'll give you two minutes for a bottle thank you good morning your honors and may it please the court I'm Lauren tacklet representing Merrick Garland United States Attorney General agency denied petitioners

[00:09:50] Speaker 03:
application for cancellation of removal based on discretion.

[00:09:53] Speaker 03:
That is clear from the immigration judge's statements on the record, from the board's decision on appeal, and the board's decision on petitioner's motion to reopen.

[00:10:03] Speaker 03:
The merits of those discretionary decisions are beyond this court's jurisdiction.

[00:10:08] Speaker 03:
Given the limited jurisdiction in this case, many of petitioners' arguments hinge on the procedural defects in the immigration judge's decision.

[00:10:17] Speaker 03:
The government concedes that the format of that decision was not perfect.

[00:10:21] Speaker 03:
However, the immigration judge's reasoning is clear on the record, and the board reviewed that decision de novo, then a second time with petitioners' motion to reopen.

[00:10:33] Speaker 03:
Requiring remand at this stage would be elevating form over substance and ultimately futile as it wouldn't change the balance of equities in this case.

[00:10:43] Speaker 03:
Most importantly though, petitioner did not raise his concerns about the procedural defects in the immigration judge's opinion to the board.

[00:10:52] Speaker 03:
The issue is unexhausted and therefore this court should not reach it.

[00:10:56] Speaker 03:
To the extent petitioner sought to revive this issue via his motion to reopen, that motion was untimely and the board reasonably denied it as such.

[00:11:06] Speaker 03:
He filed it after the 30 day deadline and did not make any equitable tolling arguments.

[00:11:13] Speaker 03:
Lastly, the board applied the correct would likely change standard to petitioners new evidence in his motion to reopen.

[00:11:23] Speaker 03:
And if the panel does not have any further questions, the government will rest on its brief.

[00:11:30] Speaker 00:
I did have just one general question.

[00:11:32] Speaker 00:
Let's assume here that not this lawyer, but the previous lawyer just blew it.

[00:11:38] Speaker 00:
And there was maybe an issue to be made about the extent of what the IJ said.

[00:11:42] Speaker 00:
Should have been raised to the board.

[00:11:44] Speaker 00:
It wasn't.

[00:11:44] Speaker 00:
It's not exhausted here.

[00:11:46] Speaker 00:
What, from the government's perspective, what, if anything, can the petitioner do in this case?

[00:11:52] Speaker 00:
Is it just, is he just out of luck or is there some procedural mechanism other than a motion to reopen to try to go back and fix this?

[00:12:01] Speaker 03:
I believe it would be a motion to reopen based on ineffective assistance of council.

[00:12:05] Speaker 03:
Um, so there is a way to try and get this if what council did with the board was so egregious that it amounts to ineffective assistance.

[00:12:16] Speaker 03:
However, other than that type of claim, no, I don't believe there is a procedural mechanism to get further review.

[00:12:25] Speaker 03:
Also though, I mean, to the point that petitioner was making on equities, the petitioner in this case was a recidivist immigration violation, gave a false name to customs, returned.

[00:12:43] Speaker 03:
or used a false social security number, failed to file taxes, didn't report income to the state government while seeking benefits for his children.

[00:12:52] Speaker 03:
Like there is a significant amount of negative equities in this case as well that the Attorney General is freed away and this court is not free to review.

[00:13:02] Speaker 02:
Is it correct that with respect to a motion to reopen on the basis of ineffective assistance to counsel that there's not a firm time deadline although the

[00:13:12] Speaker 02:
passage of time may weigh in the determination of that motion.

[00:13:17] Speaker 03:
Correct.

[00:13:18] Speaker 03:
It's the due diligence from the date of recognizing, um, the ineffective assistance.

[00:13:34] Speaker 00:
All right.

[00:13:34] Speaker 00:
Thank you very much.

[00:13:35] Speaker 03:
Thank you.

[00:13:38] Speaker 00:
You've got two minutes.

[00:13:46] Speaker 04:
Okay, so I'm going to do a little bit of repetition of what I discussed earlier regarding the exceptions that have been carved out and

[00:14:01] Speaker 04:
I haven't seen any case law that touches specifically on whether an exception should be carved out with respect to exhaustion of remedies when it comes to a situation like this where we have a complete and entire lack of a decision.

[00:14:16] Speaker 04:
As I stated, the examples I gave before were where the immigration judge

[00:14:22] Speaker 04:
denied the right to confront a witness, failed to advise the person of their rights, the person did not raise the one-year bar issue.

[00:14:29] Speaker 04:
There's another case that the respondent cited in this case, Umama, where the petitioner raised a defective notice to appear issue with respect to jurisdiction but didn't address the claims processing, so that issue was deemed waived.

[00:14:44] Speaker 04:
But we have a different situation here.

[00:14:46] Speaker 04:
We do not have an immigration judge's decision at all.

[00:14:50] Speaker 04:
There was nothing for the board to even

[00:14:53] Speaker 04:
analyze or discuss everything it did it did in the first instance on its own which is improper doesn't comply with board president doesn't comply with the regulations so i think this case stands out a little bit in that regard and was this ever presented as a due process constitutional problem in the briefing no it was not

[00:15:15] Speaker 04:
If it was, then I think we would have had an exception.

[00:15:18] Speaker 02:
Then we would be clearly within an exception for a constitutional question, correct?

[00:15:23] Speaker 04:
Correct.

[00:15:23] Speaker 04:
I believe so.

[00:15:24] Speaker 04:
But this, this case does present unique circumstances in that regard that we haven't seen a situation like this where we have a complete lack of a decision.

[00:15:37] Speaker 04:
Unless there's further questions, I have nothing more.

[00:15:42] Speaker 00:
All right, thank you very much.

[00:15:43] Speaker 00:
Thank you to both counsel for your briefing and argument this matter.

[00:15:46] Speaker 00:
This case is submitted.