[00:00:14] Speaker 02:
two minutes of my time for rebuttal.

[00:00:17] Speaker 02:
Your Honor, in this case the agency first committed an error when it declined to review the aggravated felony issue.

[00:00:23] Speaker 02:
It is true that petitioners argued before the BIA that the issue was more a question of eligibility for cancellation of removal as opposed to challenging the issue of removability.

[00:00:34] Speaker 02:
Unfortunately, although the argument was

[00:00:52] Speaker 02:
I understand that the board and that this court has held that in the context of a moral turpitude offense at the time of a conviction if the sentence that may have been imposed was 365 days not withstanding any changes by the legislature that change does not apply to

[00:01:22] Speaker 02:
to do.

[00:01:54] Speaker 02:
Velasquez Rio's decision from the panel of this court, as well as the matter of Velasquez Rio's decision from the agency.

[00:02:01] Speaker 02:
Both cases in the footnote made sure to specify that their holding was specifically limited to issues, to removability regarding the moral turpitude effects, because what they focused on was the language of the statute.

[00:02:36] Speaker 03:
after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation.

[00:02:45] Speaker 03:
That seems like a broad holding that squarely governs this case.

[00:02:49] Speaker 02:
But again, I believe respectfully if there's one lesson that we've learned from the Supreme Court from Pereira recently is that we have to give every single word in the statute, meaning we have to look at the plain language of the statute.

[00:03:00] Speaker 02:
There's a reason why Congress wrote the term may be imposed

[00:03:09] Speaker 02:
the aggravated felony provision specifically says the actual term of imprisonment that was imposed.

[00:03:16] Speaker 02:
In this case, I would argue that clearly you either have to accept.

[00:03:20] Speaker 02:
What was the sentence?

[00:03:23] Speaker ?:
That's the problem.

[00:03:23] Speaker 02:
Yeah, respectfully, I think the sentence was 15 days.

[00:03:27] Speaker 02:
Well, that was the effective sentence once the suspension was applied, but the sentence itself.

[00:03:32] Speaker 02:
Agreed, Your Honor.

[00:03:33] Speaker 02:
And one thing that I wish that perhaps prior counsel could have raised is that the

[00:03:39] Speaker 02:
The government only submitted a plea form, which indicated that the sentence was 350 days, but then it has a section that specifically says suspended or stayed.

[00:03:50] Speaker 02:
And as I'm sure the court is aware, there's a difference between suspending a sentence and staying in position of its execution.

[00:03:56] Speaker 02:
In addition, the FBI rap sheet that they submitted is also somewhat inconclusive.

[00:04:01] Speaker 02:
And given that the government would have borne the burden to prove by clearing convincing evidence that petitioner was removable, I wish those arguments

[00:04:24] Speaker 02:
The standard of review for an aggravated felony challenge, Your Honor, is a de novo.

[00:04:31] Speaker 02:
It's clear that it was raised before the BIA in both the notice to appeal and the BIA brief.

[00:04:36] Speaker 02:
The BIA, however, almost seems to skip over it by making the assertion that because the arguments were raised in the context of the cancellation of removal eligibility issue, that somehow they were now precluded from being able to review it.

[00:04:52] Speaker 02:
And I don't believe that

[00:05:00] Speaker 02:
immigrant who was unrepresented during the removal proceedings before the court.

[00:05:05] Speaker 02:
I know he had some pro bono attorneys that would make an appearance just for the court hearing, but he never had an attorney until he got to the BIA.

[00:05:12] Speaker 02:
But I believe that at the very least, the board should have addressed the issue.

[00:05:16] Speaker 02:
So before we even perhaps touch the legal issue of whether or not Velasquez Rios is distinguishable, whether or not the

[00:06:01] Speaker 02:
I do recognize that the Ninth Circuit has rejected those arguments, which is why I believe that the focal point... The only issue left is whether or not the sentence was for a year or more.

[00:06:13] Speaker 02:
I think it's two.

[00:06:15] Speaker 02:
One is that issue.

[00:06:16] Speaker 02:
The second one is whether or not the board committed an error by ignoring it, because that's the problem that we have, is that the board didn't substantively look at that argument.

[00:06:24] Speaker 02:
They essentially just said, well, in our opinion, you raised it in the context of the

[00:06:29] Speaker 02:
of a cancellation or removal of applications so we won't look at it correct.

[00:07:10] Speaker 02:
point out that in matter Velasquez Rios as well as Velasquez Rios

[00:08:03] Speaker 02:
aggravated felony, again, where the government bears a burden of proving clear and convincing evidence that an immigrant is removable.

[00:08:10] Speaker 02:
We would argue that the term of imprisonment was retroactively changed to 364 days.

[00:08:17] Speaker 02:
Otherwise, you're going to be faced with a certain legal nonsensical result that someone is being found to have been sentenced to 365 days at the time of their removal order, when in fact the law had been changed.

[00:08:51] Speaker 02:
that the board looks at the removal order.

[00:09:27] Speaker 01:
here in this case, it's clear that the court should deny the petition for review.

[00:09:33] Speaker 01:
The petitioner is statutorily in

[00:10:07] Speaker 01:
of whether it is removable and he waved it.

[00:11:16] Speaker 01:
court precedent that 273.5A was for willful infliction of a corporate injury.

[00:11:23] Speaker 01:
She looked at the sentencing that the person that the petitioner received which was 365 days which under

[00:11:53] Speaker 01:
We also found that 363.3, 273.5,

[00:12:38] Speaker 03:
of the respondents eligibility for a lead.

[00:12:41] Speaker 03:
All that, and that's all they say.

[00:12:42] Speaker 03:
So all that says is that because you didn't challenge removability and removability has the aggravated felony finding embedded within it, we're not going to look at anything else and we're done.

[00:12:55] Speaker 03:
And I don't see anything that's a substantive analysis of aggravated felony in that.

[00:13:00] Speaker 03:
That's a pure forfeiture, gotcha, analysis.

[00:13:04] Speaker 01:
Well, I think it's as

[00:13:12] Speaker 01:
I think it's required to do that.

[00:13:14] Speaker 01:
So I don't think that it doesn't make sense to say the board considers the record and then the board says, well, fine, you didn't argue that you're not removable after the record clearly establishes you're removable.

[00:13:27] Speaker 03:
But that's what they said.

[00:13:28] Speaker 03:
The only explanation they have is that.

[00:13:30] Speaker 01:
And if he's removable because he committed an aggravated

[00:14:14] Speaker 03:
with you that there is a substantive analysis here.

[00:14:18] Speaker 03:
And if we read this decision as relying just on forfeiture, we don't have to do a chenery remand because this case fits within the chenery exception where the outcome is completely foreordained.

[00:14:32] Speaker 01:
I think I agree, Your Honor.

[00:14:34] Speaker 01:
I think if you look at the course precedent when it looks at 273.5 and also the course precedent when you look at 18.5, if you send it back

[00:15:41] Speaker 03:
It doesn't control him.

[00:15:43] Speaker 01:
Well, I think if you look at the INA, the fact that he was sentenced to 3 years and 65 days,

[00:16:37] Speaker 01:
time of the conviction.

[00:18:19] Speaker 01:
certainly vote, if the court would like, can certainly look for that and submit it.

[00:18:25] Speaker 01:
Okay, fine, thank you.

[00:18:40] Speaker 01:
Are there any further questions?

[00:19:00] Speaker 01:
combined with the Holden Velasquez Rios.

[00:20:06] Speaker 02:
That is a certainty.

[00:20:09] Speaker 02:
The court should look at the case in terms of what the sentence imposed would be today, not what may have been imposed at the time of the conviction.

[00:20:19] Speaker 03:
The last point I would make seems somewhat inconsistent.

[00:20:22] Speaker 03:
I mean, just like last week, the Supreme Court spoke about, was it an armed criminal?

[00:20:30] Speaker 03:
At which statute it was.

[00:20:31] Speaker 03:
It basically said, now we look back to the time

[00:20:48] Speaker 03:
was a crime that

[00:21:55] Speaker 02:
If the court doesn't want to maybe get into that muddy water of whether or not Velasquez-Rios should apply in the aggravated felony context, I think that in this case, the board really dropped the ball.

[00:22:07] Speaker 02:
Whether you label it in terms of application for relief or removability, there's one undeniable truth.

[00:22:13] Speaker 02:
Petitioners exhausted the issue.