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

[00:00:01] Speaker 00:
My name is Andrew Kaufman representing the petitioner talk up a little bit.

[00:00:04] Speaker 01:
You're on TV We need to be able to okay.

[00:00:07] Speaker 00:
Thanks judge And if I could reserve I guess two minutes for a rebuttal if you're on the clock, we'll try to help you

[00:00:13] Speaker 00:
So I think there's two kind of overarching issues in this case.

[00:00:21] Speaker 00:
One, whether the agency abused discretion in reopening proceedings.

[00:00:25] Speaker 00:
And then second, whether substantial evidence supports the judge's decision terminating asylum.

[00:00:32] Speaker 00:
And I imagine that the court scheduled this oral argument because you have some questions for me.

[00:00:42] Speaker 00:
rehash all the arguments from the briefs.

[00:00:44] Speaker 00:
I think I would just like to make myself available for any questions that the court has.

[00:00:49] Speaker 03:
Mr. Kaufman, I guess on the merits, what do you view is the DHS's duty to be able to reach this fine?

[00:00:59] Speaker 03:
Did they really have to conduct an overseas investigation prior to the commencement of wholly unrelated removal proceedings?

[00:01:09] Speaker 00:
So, the overseas investigation took place amid a criminal investigation, or it may have taken place after the criminal trial, but there was

[00:01:26] Speaker 00:
Some questions were raised about people who were represented by the petitioner's former law firm, and so they did an investigation.

[00:01:34] Speaker 00:
And I don't think there's any reason to question their right to do an investigation, but I do think that the department

[00:01:47] Speaker 00:
of Homeland Security had a burden of proving affirmatively that there was fraud in the petitioner's asylum application originally, and I don't think that the overseas investigation produced any evidence sufficient to prove fraud or even infer fraud.

[00:02:07] Speaker 03:
Whether was or not the prior step should we deem it unavailable because they don't have a person over there investigating potential fraud at the time of the removal proceeding to establish that?

[00:02:22] Speaker 00:
Proceeding element so Yes, the the the department already had a

[00:02:28] Speaker 00:
the very same person who investigated this case in place overseas and he had the same job investigating potential asylum fraud or just investigating asylum applications at the time of the original removal proceeding.

[00:02:46] Speaker 00:
And so in 2000, when this case was originally decided, DHS had the ability to do this investigation had they

[00:02:55] Speaker 00:
wanted to do so, they opted not to, but they did have personnel in place.

[00:03:00] Speaker 00:
They had a full procedure for doing this exact type of investigation, and the very same investigator who did the investigation in 2005 was in place doing these similar investigations in 2000.

[00:03:11] Speaker 02:
So, counsel, we should credit your view of the facts as opposed to the IJ who said,

[00:03:18] Speaker 02:
DHS's evidence was not previously available as it was only uncovered after ICE began its investigation, which prompted the seizure of the documents.

[00:03:27] Speaker 02:
Given the nature and timing of ICE's investigation, the court finds that DHS could not have discovered or presented its evidence during respondents' hearings 13 years ago.

[00:03:36] Speaker 02:
So your view of the evidence, we should credit it and not the IJ's.

[00:03:41] Speaker 00:
Well, I think that given the fact that, for example, the overseas investigation into the petitioner's medical letter, given the fact that those investigators were in place and it was a very routine procedure for DHS to do an overseas investigation.

[00:04:00] Speaker 00:
They still do them today.

[00:04:01] Speaker 00:
They were doing them in 2000 at the time of the removal proceeding.

[00:04:06] Speaker 00:
that evidence was previously available.

[00:04:09] Speaker 00:
And not only that, but it had DHS wanted to do an investigation.

[00:04:14] Speaker 00:
All of those resources were at their disposal.

[00:04:19] Speaker 01:
I gotta say, I'm out on the court for a while.

[00:04:22] Speaker 01:
And I have heard, personally, probably at least four score cases that involve the identical factual situation.

[00:04:31] Speaker 01:
It's just plain fraud.

[00:04:32] Speaker 01:
It's been fraud for a long, long, long, long time.

[00:04:35] Speaker 01:
And in this case, the government prosecuted the lawyers who were involved in the fraud.

[00:04:44] Speaker 01:
They found evidence of your client's records.

[00:04:46] Speaker 01:
Same thing.

[00:04:47] Speaker 01:
It was kind of a boilerplate deal.

[00:04:50] Speaker 01:
The lawyers were convicted of fraud.

[00:04:53] Speaker 01:
And there's a term, chutzpah, which I would like to use.

[00:04:56] Speaker 01:
I think it's incredible that you're here.

[00:04:59] Speaker 01:
I really do.

[00:05:00] Speaker 01:
I mean, all due respect to you, but that your client that was caught

[00:05:05] Speaker 01:
in a clear fraud is now coming back and saying, you know, you haven't proven, based upon some testimony of the actual people, even though that was discovered before, that none of these people existed.

[00:05:19] Speaker 00:
I'm just amazed.

[00:05:20] Speaker 00:
I frankly am.

[00:05:22] Speaker 00:
I respectfully disagree with the claim that there's clear fraud in this case.

[00:05:31] Speaker 00:
I think there were other clients of this law.

[00:05:34] Speaker 01:
Why were the lawyers convicted of fraud?

[00:05:36] Speaker 00:
The lawyers were convicted of fraud in other people's cases.

[00:05:39] Speaker 01:
And the lawyers represented your client and there were papers in the file showing that what they filed on your client's behalf was fraud.

[00:05:47] Speaker 01:
They had the same thing for several other people and that's part of why they were convicted.

[00:05:51] Speaker 00:
There was no finding that the papers that were filed in my client's case were fraudulent.

[00:05:57] Speaker 00:
There was a finding in a criminal trial that his former lawyers conducted fraud in other people's cases.

[00:06:03] Speaker 00:
There was never any specific finding.

[00:06:04] Speaker 00:
There's nothing in the record of this case.

[00:06:07] Speaker 02:
The identity of your client's allegations to so many others is just

[00:06:14] Speaker 02:
Coincidence is just everybody suffered exactly the same down to the word and the IJ's finding that there was fraud here.

[00:06:27] Speaker 02:
I mean, it's just like the fact that your client's case was identical to others and that they did an investigation of your client, that's just like irrelevant.

[00:06:38] Speaker 00:
So if you're referring to similar applications that were filed by other people, or more specifically, similar declarations that were filed.

[00:06:47] Speaker 02:
Almost identical.

[00:06:49] Speaker 02:
But yes, I guess almost identical is similar to the word similar.

[00:06:54] Speaker 00:
So I would say a few things.

[00:06:57] Speaker 00:
First of all, only two declarations were submitted that were similar.

[00:07:03] Speaker 00:
There's no denying that they were remarkably similar in some respects.

[00:07:09] Speaker 00:
The name change?

[00:07:11] Speaker 00:
Well, no, Judge.

[00:07:12] Speaker 00:
The petitioner in this case submitted a declaration that was 47 paragraphs long.

[00:07:17] Speaker 00:
There were two comparison declarations filed.

[00:07:19] Speaker 00:
Both of them post-dated the petitioners in this case.

[00:07:22] Speaker 00:
There's no evidence anywhere in the record.

[00:07:24] Speaker 00:
There's no evidence anywhere that

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Any declaration similar to the petitioners in this case was ever filed before the petitioners.

[00:07:31] Speaker 00:
So no claim can be made that his declaration was copied from anyone else.

[00:07:36] Speaker 00:
There's two similar declarations that were submitted.

[00:07:40] Speaker 00:
Both of them post-dated, the petitioners.

[00:07:43] Speaker 01:
Let me ask you this.

[00:07:44] Speaker 01:
Is it your representation to the court as an officer of the court that what your client stated under oath the first time was true in every respect?

[00:07:54] Speaker 00:
That was that was for the petitioner to swear the petitioner did and in the first instance, the judge looked the petitioner in the eye and credit that the petitioner the the department had every opportunity to investigate it to cross examine him.

[00:08:10] Speaker 00:
They waived appeal on that case.

[00:08:12] Speaker 00:
He was found to have presented a credible claim.

[00:08:15] Speaker 03:
Mr. Kaufman, since you're running into your rebuttal time, I wanted to address in your opening the availability argument.

[00:08:25] Speaker 03:
Can you address the forfeiture issue?

[00:08:28] Speaker 03:
I know you were at the counsel before the IJ, but most of these claims were not argued then.

[00:08:36] Speaker 00:
So, if you look at page 55 of the certified administrative record, in the first hearing after a department filed its motion to reopen, the counsel for the petitioner, then the respondent, did tell the judge that the petitioner was questioning whether or not the grounds for reopening were met.

[00:08:59] Speaker 03:
The question is an argument, and the BI found that it was forfeited.

[00:09:04] Speaker 03:
They might have found

[00:09:05] Speaker 03:
On the alternative grounds that it was met but well the BIA Made a factual error saying that it was forfeited the the judge considered the issue the department argued the issue and the judge Bennett said the judge found substantial evidence or Enough perhaps to for us to find substantial evidence that it was available and it was fraudulent it was disqualifying

[00:09:30] Speaker 00:
Well, so I'm not sure which issue.

[00:09:33] Speaker 03:
Let's talk about the availability issue, which is the focus.

[00:09:36] Speaker 00:
So all of the evidence was previously available, and the statute says that if that evidence was available to the department at the time, they can't go back and have another bite at the apple later and reopen proceedings and present evidence that could have been presented in the first instance.

[00:09:52] Speaker 03:
And you think that on AR-55 that that's sufficient argument to have preserved that issue that was argued then to the BIA?

[00:10:02] Speaker 00:
I do, because counsel for the petitioner did raise the issue at the very beginning, but then I think more importantly that the judge's direct consideration of the issue makes that issue available for this court to consider.

[00:10:14] Speaker 00:
I don't think that the argument about reopening was ever forfeited.

[00:10:19] Speaker 01:
Okay.

[00:10:19] Speaker 01:
Your time has expired.

[00:10:21] Speaker 01:
Thank you very much, counsel.

[00:10:22] Speaker 01:
Thank you.

[00:10:22] Speaker 01:
Let's hear from the government.

[00:10:28] Speaker 04:
May it please the court and Robert Tennyson for the government.

[00:10:35] Speaker 04:
The regulation specifically allows reopening for fraud.

[00:10:39] Speaker 04:
It would be perverse and strange if the petitioner could avoid having that reopening take place by committing the very fraud that one is speaking of.

[00:10:52] Speaker 03:
Did the BIA reach that issue on the merits?

[00:10:56] Speaker 04:
The BIA does not appear to have reached the petitioner's particular issue with respect to when the fraud could have been discovered.

[00:11:06] Speaker 04:
Instead, it found it procedurally defaulted.

[00:11:08] Speaker 04:
After the immigration judge, previously after finding that the evidence was only discoverable in 2005- Did the government argue before the BIA that it should be procedurally defaulted?

[00:11:20] Speaker 04:
It's a good question.

[00:11:22] Speaker 04:
I don't recall what the government's argument was.

[00:11:25] Speaker 04:
But the board can find that on its own.

[00:11:27] Speaker 04:
Yes, your honor.

[00:11:28] Speaker 02:
So counsel, in response to Judge Johnstone's question, and I believe this is also the position the government took in its brief, why is the government not claiming that the BIA's statement at

[00:11:47] Speaker 02:
I guess AR3, we affirm that it was proper to grant DHS's motion to reopen for the reasons stated by the immigration judge doesn't include the reasons stated by the immigration judge on the June 26, 2013 finding that the evidence was not reasonably available to the government.

[00:12:12] Speaker 04:
The immigration judge made two findings, right?

[00:12:14] Speaker 04:
The immigration judge first found that the evidence was not reasonably available to him.

[00:12:20] Speaker 02:
And that's part of his reason why the motion to reopen was proper.

[00:12:26] Speaker 02:
was proper.

[00:12:28] Speaker 02:
Correct.

[00:12:28] Speaker 02:
So why is the BIA's statement, we affirm that it was proper to grant the DHS's motion to reopen for the reasons stated by the immigration judge.

[00:12:38] Speaker 02:
Why isn't the government saying that includes the finding that the evidence was not reasonably available?

[00:12:45] Speaker 04:
Right.

[00:12:46] Speaker 04:
I think that this court can reach it.

[00:12:48] Speaker 04:
But remember, the immigration judge made a second finding afterwards.

[00:12:50] Speaker 04:
And that was that the petitioner didn't procedurally defaulted on any arguments with regard to the discoverability of the evidence.

[00:12:56] Speaker 04:
If you look right after that first statement with respect to the evidence wasn't discoverable until the investigation ensued, then there's a statement that the petitioner hasn't made any clear argument with regard to the discoverability issue.

[00:13:12] Speaker 03:
Before the BIA?

[00:13:14] Speaker 04:
No.

[00:13:14] Speaker 04:
The immigration judge made that argument, specifically stated that.

[00:13:18] Speaker 03:
So, Mr. Tennyson, is it a double standard that, as you said, the BIA can sua sponte find forfeiture when the government doesn't raise the issue to disqualify the petitioner's argument when they didn't raise the issue?

[00:13:36] Speaker 04:
Right.

[00:13:37] Speaker 04:
I think that the board can find an issue procedurally defaulted, even if the agency doesn't.

[00:13:45] Speaker 04:
And oftentimes with the... What's the best authority for that?

[00:13:48] Speaker 03:
I'm struggling with that.

[00:13:50] Speaker 04:
I don't have a case for you on that.

[00:13:52] Speaker 04:
So if you want, we can just go to the merits on this.

[00:13:55] Speaker 04:
and just say that substantial evidence supports the agency's determination.

[00:13:58] Speaker 04:
Because the agency, because the board does have that flow through of, we found the motion to reopen was proper for the reasons given by the immigration judge as well.

[00:14:07] Speaker 04:
I think what the board was responding to was a particular argument with regard to discoverability.

[00:14:15] Speaker 03:
So you're adopting Judge Bennett's suggestion.

[00:14:18] Speaker 03:
I am adopting Judge Bennett's suggestion.

[00:14:20] Speaker 03:
We might be able to read the BIA's decision too.

[00:14:24] Speaker 04:
I will happily adopt that, yes.

[00:14:28] Speaker 04:
Substantial evidence supports the immigration judge's finding in this case.

[00:14:31] Speaker 01:
Your friend on the other side has suggested that the evidence was reasonably available.

[00:14:38] Speaker 01:
In this case, the petitioner originally inserted

[00:14:44] Speaker 01:
Certain events occurred with respect to a particular doctor at a particular hospital, certain treatment by the police, et cetera, et cetera.

[00:14:52] Speaker 01:
When the lawyer's offices were invaded, they did go back and check.

[00:14:55] Speaker 01:
None of those people even existed.

[00:14:58] Speaker 01:
Is it the case that the government, when there is fraud, is the government stuck without, in other words, without going in every case to investigate every aspect of what is alleged in a petition

[00:15:13] Speaker 01:
Is it barred basically from claiming later on when there is proof of fraud that they can't do it?

[00:15:21] Speaker 01:
In other words, unless they did it when they started, they're stuck.

[00:15:25] Speaker 01:
What's the situation?

[00:15:27] Speaker 04:
There's nothing like that.

[00:15:28] Speaker 04:
And with regard to motions to reopen, just because someone has found not credible before, say, an INS officer,

[00:15:43] Speaker 04:
It doesn't entail that there's a basis for a whole blown fraud investigation.

[00:15:48] Speaker 04:
One, that would be a copious amount of work for the government in the first instance.

[00:15:55] Speaker 04:
Second, the agency doesn't have any reason to start investigating fraud until there is evidence of fraud.

[00:16:04] Speaker 01:
They neither have the resources for nor any statutory basis to do that, right?

[00:16:12] Speaker 04:
That is correct, Your Honor.

[00:16:14] Speaker 04:
So, with regard to termination, I think substantial evidence supports the immigration judge's finding here.

[00:16:21] Speaker 04:
We've got the template, the letters, the declaration that is nearly identical to other declarations that were filed, and with respect to the lack of the name,

[00:16:35] Speaker 04:
The medical certificate, neither the doctor nor the hospital nor the telephone number ever turning up on a search.

[00:16:46] Speaker 04:
All of those reasons provided substantial evidence for the immigration judge to have determined that the prior asylum application was fraudulent and to therefore terminate it.

[00:16:57] Speaker 04:
If this court has no further questions for me,

[00:17:00] Speaker 01:
Thank you.

[00:17:01] Speaker 01:
Thanks to both counsel for your argument.

[00:17:03] Speaker 01:
We appreciate it.

[00:17:04] Speaker 01:
The case just argued is submitted.