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

[00:00:03] Speaker 00:
May it please the court?

[00:00:05] Speaker 00:
My name is Ashley Gamborian.

[00:00:06] Speaker 02:
Oh, you have to please keep your voice up.

[00:00:08] Speaker 02:
I'm having just a little bit of trouble hearing you.

[00:00:11] Speaker 00:
I'm sorry, Your Honor.

[00:00:12] Speaker 00:
My name is Ashley Gamborian and I represent the petitioner, Mr. Garegin Sargsyan.

[00:00:18] Speaker 00:
I will be addressing three issues today in court.

[00:00:22] Speaker 00:
The first one is whether this court has jurisdiction to review the immigration judges and the Board of Immigration Appeals decision denying Mr. Sargsyan's application for what is commonly known as 212-H waiver.

[00:00:35] Speaker 00:
The second issue is going to be whether there's a legal standard, as the government has argued.

[00:00:40] Speaker 00:
And that's the government's issue that's been raised.

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And also, the third issue is whether we've sufficiently exhausted the issue.

[00:00:48] Speaker 00:
The jurisdiction issue, we're relying on Guerrero-Lasprilla-Vibar, where the US Supreme Court considered the issue of the applicant of equitable tolling to a diligent standard.

[00:01:00] Speaker 00:
the court held that because the application of a legal standard to undisputed or established facts is a mixed question of law and fact, and therefore a question of law.

[00:01:08] Speaker 03:
Here's my difficulty, and maybe you can help me with it.

[00:01:13] Speaker 03:
The BIA and the immigration judge made, in effect, two rulings.

[00:01:18] Speaker 03:
They said, first, we don't think your client is eligible for a 212-H waiver.

[00:01:23] Speaker 03:
But if he is, we would deny it in the exercise of our discretion.

[00:01:30] Speaker 03:
I think the first ruling is probably reviewable.

[00:01:33] Speaker 03:
But does it matter if they denied, if they also said, if we've had jurisdiction, we would deny any exercise of our discretion?

[00:01:42] Speaker 00:
Your Honor, with all due respect, I think the immigration judge and the BIA did find that he was statutorily eligible for 212-H.

[00:01:50] Speaker 03:
I agree with you.

[00:01:51] Speaker 03:
I'm saying that.

[00:01:52] Speaker 03:
And if that were the only ruling, you could come up here and say, that's a mixed question of law and fact.

[00:01:59] Speaker 03:
But there's a second ruling here by both the IJ and the BIA.

[00:02:03] Speaker 03:
And they say, and eligibility issues aside, we would reject this application based on the exercise of our discretion.

[00:02:16] Speaker 03:
And what I'm having difficulty with and where I need your help is how we can review that rule.

[00:02:22] Speaker 00:
Well, there is a legal standard that the immigration judges and the BIA have to apply, and they did correctly state that... What legal standard applies to the exercise of their discretion?

[00:02:32] Speaker 00:
It's the matter of Maamanda's Morales Factors.

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Those factors have been used in immigration cases, in 212C waivers, cancellation of removals.

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any discretionary relief applications.

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And that's a very well-settled standard that the immigration judges have to abide.

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The immigration judges cannot just have unfettered discretion.

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They have contours within the law to apply the facts.

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And in this case, the immigration judge and the BIA completely ignored a lot of positive factors that could have made a difference in their decision.

[00:03:08] Speaker 02:
How do you know they ignore them?

[00:03:09] Speaker 02:
They simply didn't agree with

[00:03:11] Speaker 02:
Mr. Sargassin's position?

[00:03:17] Speaker 00:
Well, they even though the court said that it has considered all the facts and all the evidence,

[00:03:26] Speaker 00:
It didn't seem like he did because... Well, they didn't agree with you.

[00:03:29] Speaker 02:
That's pretty clear.

[00:03:31] Speaker 02:
No, but they... But it seems to me, I don't quite follow you if you're, to the extent you're arguing, they weren't aware of them.

[00:03:43] Speaker 00:
Well, they put undue weight on the fact that they didn't think that he had

[00:03:53] Speaker 00:
express sufficient remorse.

[00:03:55] Speaker 02:
But that's exactly what an exercise of discretion is.

[00:03:58] Speaker 02:
That's exactly what's non-reviewable, isn't it?

[00:04:02] Speaker 00:
No, because that's a legal question, whether they followed the legal standard.

[00:04:09] Speaker 00:
Why is that a legal question?

[00:04:11] Speaker 02:
Because they have to... You said your position is that the record is replete with evidence of contrition.

[00:04:18] Speaker 02:
The IJ and the board didn't agree with that.

[00:04:24] Speaker 02:
They said, well, he's really not contrite.

[00:04:28] Speaker 02:
His explanation for these federal felony convictions was that he was in the wrong place at the wrong time.

[00:04:36] Speaker 00:
But he also stated that he had made mistakes and that he now lived a life without that extra stuff.

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So he did admit and acknowledge his mistakes.

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He didn't just say, oh, I didn't do it.

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But the court took those facts and distorted them, basically.

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and applied those facts in their lenses to the law.

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So that makes it a legal issue that the court.

[00:05:05] Speaker 00:
Why?

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Because they cannot just ignore, they cannot just take one fact and stress on it and give it.

[00:05:12] Speaker 03:
Well, why not?

[00:05:13] Speaker 03:
Isn't that exactly what the exercise of discretion is about?

[00:05:16] Speaker 03:
There's a bunch of facts.

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And I think this one is more important than these.

[00:05:21] Speaker 03:
I think that's exactly what Judge Parker was asking.

[00:05:25] Speaker 03:
Why isn't that?

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exactly what judges do when they exercise their discretion.

[00:05:31] Speaker 03:
Well, in the Morano case... I've read Morano, but it doesn't say, gee, you should weigh... When you have all the facts, you should weigh them a certain way.

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It just says, these are all the facts you should look at.

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There's no indication the IJ or the BAA didn't look at all the facts.

[00:05:49] Speaker 03:
You just think they weighed them wrong, and they may have, but we're out of that business, aren't we, this court?

[00:05:55] Speaker 00:
Well, in Zamorano, this court tell that the judge had ignored a lot of the positive factors and just concentrated on his two DUI convictions that didn't even result in any injury to anyone.

[00:06:11] Speaker 00:
It was just property damage.

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they actually held that the court had applied the wrong legal standard and they had jurisdiction to review.

[00:06:22] Speaker 03:
I'm reading the IJ's decision and the IJ says while the court acknowledges the positive factors presented

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It never finds it nonetheless finds their outweighed by the negative factors.

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So I'm not sure how can we find with that language in the decision that the judge ignored the positive factors rather as opposed to not finding them weighty enough.

[00:06:46] Speaker 00:
He didn't mention any of the positive factors.

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How do we know which positive factors he actually considered?

[00:06:52] Speaker 00:
We don't know.

[00:06:53] Speaker 00:
He ignored a lot of it, apparently, because he said he did not express sufficient remorse.

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What is sufficient remorse?

[00:07:00] Speaker 00:
It's that the judges should not have that kind of power.

[00:07:04] Speaker 03:
Well, actually, the judge says, in the present matter, the court recognizes the respondent has presented several significant positive equities.

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And then the judge, I'm looking at

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ER 51 recounts in a whole paragraph the positive equities that your client presents.

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And then he says, I think it's a he, I want to be Timothy, he says, and here are the negative ones and I find they outweigh the positive ones.

[00:07:30] Speaker 03:
So even if the rule were that he had to mention them expressly, he did.

[00:07:35] Speaker 00:
He ignored the letters from the family members that were actually submitted into the evidence without any objection.

[00:07:43] Speaker 02:
You're contending he didn't read them?

[00:07:48] Speaker 00:
Because in those letters, it said that he expressed a lot of remorse.

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And he was very sorry for what he had done.

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He had acknowledged his mistakes.

[00:07:57] Speaker 03:
But the judge basically ignored those statements where... The respondent has also provided numerous letters from his family members and individuals in the community attesting to his good moral character.

[00:08:08] Speaker 03:
The IJ expressly mentions those letters.

[00:08:11] Speaker 02:
Yes, but... In other words, the IJ did exactly what you just said he didn't do.

[00:08:17] Speaker 00:
No, the IJ, even though he mentioned, he didn't consider the contents of the letters.

[00:08:24] Speaker 02:
He just said that.

[00:08:27] Speaker 02:
Judge Hurwitz just read you the provision where he's just said the opposite of what you said.

[00:08:38] Speaker 00:
But had he considered the contents, he would have come up with a different conclusion.

[00:08:44] Speaker 03:
According to these letters, the respondent has been, and then he goes on and recounts what the letter says.

[00:08:50] Speaker 03:
I understand that you think the IJ didn't reach the right decision, but I'm not sure how you can argue that the IJ didn't

[00:09:01] Speaker 03:
didn't note the existence of these letters, look at their contents, and perhaps didn't weigh them the way you'd like.

[00:09:09] Speaker 01:
Counsel, would you like to leave the remaining one minute of your time for rebuttal?

[00:09:13] Speaker 00:
Yes.

[00:09:14] Speaker 00:
Thank you.

[00:09:25] Speaker 04:
Good morning, Your Honor.

[00:09:26] Speaker 04:
May it please the Court, Eric Anderson, representing the Attorney General in the case before the Court today.

[00:09:32] Speaker 04:
Mr. Sargizian is a native of Armenia, who obtained lawful permanent residence in the United States.

[00:09:39] Speaker 04:
He has conceded, however, that he is removable on the basis of his crime involving moral turpitude convictions.

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And that leaves him in the position of having the burden to show that he is both eligible for this 212-H waiver, AQSE 1182-H, and that he merits a favorable exercise of discretion in receiving it.

[00:09:58] Speaker 03:
And the board found him eligible.

[00:10:01] Speaker 04:
Yes, Your Honor.

[00:10:02] Speaker 03:
If the board had found him ineligible, could we review that?

[00:10:06] Speaker 04:
Certainly on the hardship issue, when the board says here, we agree with the IJ that removal would cause your citizen wife extreme hardship, that is removable.

[00:10:17] Speaker 04:
That is reviewable, rather.

[00:10:18] Speaker 03:
That's right, because that would be a mixed question of law and fact under Wilkinson.

[00:10:21] Speaker 04:
Correct, Your Honor.

[00:10:22] Speaker 04:
OK.

[00:10:23] Speaker 04:
But of course, we move on to step two, where ultimately the immigration judge

[00:10:29] Speaker 04:
determined that Mr. Sargizian had the opportunity to say what he had done and whether he was rehabilitated.

[00:10:35] Speaker 04:
And instead of forthrightly saying it, he dissembled on the record before the immigration judge.

[00:10:42] Speaker 04:
And on that basis, the immigration judge and board determined he did not merit.

[00:10:49] Speaker 03:
Can we review the credibility determination?

[00:10:52] Speaker 04:
No, Your Honor, because of cases like the Supreme Court's Patel decision.

[00:10:57] Speaker 04:
When we're in this realm of the denial of discretionary relief, the only review available is that under 1252A2D, and the resolution of credibility is not a legal issue under 1252A2D.

[00:11:11] Speaker 03:
If the IJ had said, I find you not credible because you're Armenian and I don't like Armenians, could we review that?

[00:11:19] Speaker 04:
The case wouldn't have even gotten this far, Your Honor.

[00:11:22] Speaker 03:
Well, I understand, because the BIA would have done its duty.

[00:11:25] Speaker 03:
I'm asking a hypothetical.

[00:11:27] Speaker 04:
If you pick something else, because you had six letters in your last name, something perhaps less, that I would agree was a legal issue.

[00:11:38] Speaker 04:
Can you deny discretion?

[00:11:40] Speaker 04:
Can you deny eligibility because of the number of letters in your last name?

[00:11:45] Speaker 04:
That would be a reviewable legal issue.

[00:11:47] Speaker 02:
So do we have jurisdiction?

[00:11:49] Speaker 04:
No, Your Honor.

[00:11:51] Speaker 04:
And that somewhat determines asking what issues has Mr. Sargisian attempted to raise in this court.

[00:11:58] Speaker 04:
And all the ones he has attempted to raise are not colorable legal issues.

[00:12:04] Speaker 04:
Just briefly, three in terms of the Guerrero LaSprilla kind of mixed question, the review of undisputed facts and the application of a legal standard.

[00:12:15] Speaker 04:
Wilkinson is very clear that this does not apply at the step two discretionary stage.

[00:12:20] Speaker 04:
Let's put note four of Wilkinson itself.

[00:12:23] Speaker 04:
Also, we're not in that realm because the facts are very much disputed.

[00:12:26] Speaker 04:
Another major issue Mr. Sargizian attempts to raise is whether any evidence or factors that were overlooked.

[00:12:36] Speaker 04:
And I believe on page 12 of the immigration judge's decision that Judge Hurwitz was going through,

[00:12:43] Speaker 04:
He does not, Mr. Sigezin does not identify any issues that were overlooked.

[00:12:48] Speaker 01:
So you would agree that we can resolve this petition in its entirety on the jurisdictional issue?

[00:12:53] Speaker 04:
Yes, Your Honor.

[00:12:55] Speaker 04:
And although I am prepared to answer any other questions, I would allow those people standing perhaps to get a seat and just ask the court to dismiss the petition for review.

[00:13:07] Speaker 04:
Thank you.

[00:13:08] Speaker 04:
Thank you, Your Honor.

[00:13:12] Speaker 00:
I just wanted to mention that in Wilkinson the court, the Supreme Court said that even if we have to immerse in facts, it does not make it a factual decision.

[00:13:29] Speaker 00:
It's still a question of

[00:13:32] Speaker 00:
a law and facts if there is a legal question involved.

[00:13:36] Speaker 00:
So I think there is a legal question involved in this case because the judges do not have unfettered discretion.

[00:13:43] Speaker 00:
They have to follow the factors enumerated and we don't believe that the judge actually did that in this case.

[00:13:53] Speaker 00:
And there have been cases where discretionary factors have been reviewable.

[00:13:57] Speaker 00:
Zamorano, Zhang versus Holder.

[00:14:01] Speaker 00:
All these cases are very instructive, Your Honor, because they did involve discretionary relief applications, the same factors that were used in this case.

[00:14:12] Speaker 00:
And this court did find that it had jurisdiction because the judges had ignored evidence, had distorted facts.

[00:14:20] Speaker 00:
undisputed facts and they had not applied the legal standard to those facts.

[00:14:28] Speaker 02:
Thank you very much.

[00:14:28] Speaker 02:
Counsel, before you sit down I want you to look just to let you know we gave you a hard time but that's our job and the

[00:14:38] Speaker 02:
We are not unmindful of the effects that decisions like this have on spouses and children and family members.

[00:14:48] Speaker 02:
But at the end of the day, we're a court of law.

[00:14:54] Speaker 02:
But if I had been an IJ, I may have ruled differently and may have been the same with my colleagues.

[00:15:02] Speaker 02:
But they're rules that we're bound by.

[00:15:07] Speaker 00:
I just wanted to say that sometimes people plead guilty for different reasons.

[00:15:12] Speaker 02:
We know that.

[00:15:12] Speaker 00:
Even when they're not guilty.

[00:15:14] Speaker 00:
So if we require people to admit their guilt regardless in immigration court, are we asking them to lie in immigration court about their involvement in the crimes just because they've pled guilty?

[00:15:27] Speaker 00:
So this is a question of law that I think we should address, because it happens all the time where the clients tell us, well, I wasn't guilty.

[00:15:34] Speaker 00:
I just pled guilty.

[00:15:36] Speaker 00:
yet it seems like according to this judge he was supposed to say i was guilty anyway because even if it's not the truth he has to say that we understand in order to get favorable exercise of discretion let me ask one other question i can't tell from this record whether your client was advised at the time he pleaded guilty of the possible immigration consequences if he wasn't there is a

[00:16:00] Speaker 03:
there is an avenue for relief and if he were to obtain that relief I think he could probably move to reopen.

[00:16:08] Speaker 03:
But I just raised that issue without trying to commit you to it.

[00:16:13] Speaker 03:
I just want to make sure you're aware.

[00:16:14] Speaker 00:
I've considered that.

[00:16:15] Speaker 00:
I've looked into that.

[00:16:16] Speaker 00:
And I've thought about that.

[00:16:20] Speaker 00:
He was held inadmissible for two crimes involving moral turpitude.

[00:16:24] Speaker 00:
And for whatever reason, at the time he pled guilty, he was head an attorney that advised him.

[00:16:32] Speaker 00:
I don't know exactly what it was.

[00:16:35] Speaker 00:
Would it help him to vacate the state conviction, the federal conviction?

[00:16:39] Speaker 00:
I don't know the answer to that.

[00:16:40] Speaker 00:
Yes, I've thought about it.

[00:16:41] Speaker 00:
That's why I've thought about it.

[00:16:42] Speaker 00:
That may be an evidence for me.

[00:16:43] Speaker 00:
Yes, I've thought about it.

[00:16:44] Speaker 01:
Thank you, Ms.

[00:16:45] Speaker 01:
Kimberly.

[00:16:45] Speaker 00:
But thank you for the arguments.

[00:16:46] Speaker 00:
Thank you both.

[00:16:47] Speaker 01:
Thank you so much.

[00:16:47] Speaker 01:
Thank you.

[00:16:48] Speaker 01:
Thank you, counsel.

[00:16:49] Speaker 01:
We'll next hear argument in the United States v. Gonzalez-Silva.