[00:00:00] Speaker 03:
Good morning, and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
Judge Thomas and I would like to extend a special welcome to Judge Rosenpol from the United States District Court for the Southern District of Texas.

[00:00:11] Speaker 03:
We are very grateful for your willingness to come out and help us with our work.

[00:00:14] Speaker 03:
It's a great pleasure.

[00:00:15] Speaker 03:
Thank you.

[00:00:17] Speaker 03:
We will hear argument first this morning in Hadian against Garland.

[00:00:21] Speaker 03:
Mrs. Barham?

[00:00:23] Speaker 04:
Yes, Your Honor.

[00:00:25] Speaker 03:
You may proceed.

[00:00:26] Speaker 04:
Good morning, Your Honors.

[00:00:28] Speaker 04:
On behalf of Petitioner Hadian, sorry, Sayed Taufik Mir Hadian, may it please the Court, I would like to reserve two minutes for rebuttal.

[00:00:44] Speaker 03:
You may, but just watch your time.

[00:00:47] Speaker 04:
Oh, certainly.

[00:00:49] Speaker 04:
In this case, there are multiple errors on the part of both the BIA and the IJ regarding whether or not the case should have been reopened based on ineffective assistance of counsel.

[00:01:07] Speaker 04:
There are multiple, I think you have to go back to the beginning of the original sin in this case to look at what actually happened.

[00:01:16] Speaker 04:
Mr. Hadian had the misfortune of hiring or what he thought he hired an attorney named Sean Donrad.

[00:01:27] Speaker 04:
Sean Donrad was so incompetent that he was even unable to fill out his entry of appearance

[00:01:36] Speaker 04:
for the court properly.

[00:01:37] Speaker 04:
Instead of pacing the name of the petitioner respondent in this case, Mr. Hadian, in the correct line, he put his own name.

[00:01:49] Speaker 04:
Furthermore, he never signed a retainer with Mr. Hadian.

[00:01:56] Speaker 04:
He, in fact, exchanged his legal services or lack thereof legal services for Mr. Hadian by accepting free taxi rides.

[00:02:10] Speaker 04:
So the first appearance that Mr. Donrad made in court was in June of 2010.

[00:02:18] Speaker 04:
And at that time, Mr. Hadian observed that Mr. Donrad was drinking.

[00:02:25] Speaker 04:
And even though he was drinking and left a bottle of vodka outside the courtroom, Mr. Hadian thought that the hearing itself went fine.

[00:02:38] Speaker 04:
Now, the question is whether or not Mr. Hadian actually had notice of the hearing on February 22, 2011.

[00:02:52] Speaker 04:
In the intermediate time, Mr. Donrad, the attorney, never, not once, filed anything with the court.

[00:03:00] Speaker 04:
He didn't file any form of relief, nothing.

[00:03:06] Speaker 04:
When Mr. Hadian approached Mr. Donrad in January or February, I believe it was February of 2011, he had heard that Mr. Donrad had been suspended from the practicing law.

[00:03:23] Speaker 04:
And when Mr. Hadian approached Mr. Donrad about that, he became very angry and physical, and he felt, Mr. Hadian felt that his life was in danger.

[00:03:36] Speaker 01:
Can I ask a question?

[00:03:39] Speaker 01:
Certainly.

[00:03:39] Speaker 01:
Are you resting your argument on the absence of any indication in the record that Mr. Hadian got notice of the February 2011 hearing?

[00:03:50] Speaker 04:
I believe that Mr. Hadian was very confused about what would happen in February at the hearing.

[00:03:59] Speaker 04:
He was under the impression that he must appear with his attorney.

[00:04:05] Speaker 01:
So he knew about the hearing and made the decision not to appear because he was unrepresented.

[00:04:11] Speaker 01:
Is that accurate?

[00:04:13] Speaker 04:
Well, he didn't know that he was unrepresented.

[00:04:17] Speaker 04:
As far as he knew, he was represented and that he must appear in court with an attorney.

[00:04:22] Speaker 04:
And at that time, Mr. Donrad didn't appear at the hearing either.

[00:04:31] Speaker 04:
He did not notify the court.

[00:04:33] Speaker 04:
He did not notify Mr. Hadian in writing that he was

[00:04:37] Speaker 04:
suspended from the rule of law.

[00:04:39] Speaker 04:
And there's a lot of confusion in Mr. Hadian's mind about what to do.

[00:04:47] Speaker 04:
And Mr. Donrad told him repeatedly, I will fix it.

[00:04:51] Speaker 03:
So what the board said, and this is at page four, that Mr. Hadian admittedly was aware of the hearing date and had been informed of the consequences of failure to attend a removal hearing.

[00:05:03] Speaker 03:
So he has the February date.

[00:05:06] Speaker 03:
He knows that that's the date.

[00:05:08] Speaker 03:
And he knows, obviously, that he didn't attend it.

[00:05:11] Speaker 03:
And so the board seems to have thought that to get... He then has 180 days, unless there's tolling.

[00:05:19] Speaker 03:
He has 180 days to file the motion to reopen, so that would run out in August.

[00:05:23] Speaker 03:
So for a later than August filing to have been timely, you need tolling for at least a few months, depending on how you count it.

[00:05:35] Speaker 03:
And the board seems to have thought that reasonable diligence, given what he already knew, would have entailed doing something more than what he did.

[00:05:45] Speaker 03:
Why was that?

[00:05:46] Speaker 04:
Well, I will point out that, unfortunately, the notice of the order of removal was not delivered directly to Mr. Hadian.

[00:05:57] Speaker 04:
In fact, it was attempted to be delivered to Mr. Donrad, and it was returned to the court.

[00:06:03] Speaker 04:
So there was no way that Mr. Hadian would necessarily know that he had

[00:06:11] Speaker 04:
had an order of removal in absentia.

[00:06:16] Speaker 01:
If I could, sorry to interrupt, but he did know that there was a court hearing and both the IJ and the board fault him for not having made any effort to follow up with the court, which would have been something he could do without representation, and to find out what had happened as a result of the failure to appear at the February hearing.

[00:06:39] Speaker 04:
I think you have to look at the totality of the circumstances in this case because Mr. Hadian also fell into abject poverty.

[00:06:48] Speaker 04:
He was homeless.

[00:06:49] Speaker 04:
I think when he did contact an attorney, Ms.

[00:06:54] Speaker 04:
Schulz, in November of 2011, that was the first time he realized that he was ordered removed.

[00:07:05] Speaker 04:
And Ms.

[00:07:06] Speaker 04:
Schulz also didn't tell him of the urgency that he needed to file a motion to reopen within, you know, very quickly.

[00:07:16] Speaker 04:
So I think ineffective assistance of counsel is pretty favorable to Mr. Hadian in the sense that he really had no

[00:07:25] Speaker 04:
no clue what was happening.

[00:07:28] Speaker 04:
And if you even look at the notice of hearing in particular, the top line says the attorney must go to court with the client.

[00:07:42] Speaker 04:
And in this case, you know,

[00:07:45] Speaker 04:
Mr. Hadian didn't know what was going to happen.

[00:07:48] Speaker 03:
What is the standard of review that governs our review of the board's determination that tolling was not warranted?

[00:07:56] Speaker 04:
I believe it's de novo in this case, not an abuse of discretion.

[00:08:01] Speaker 04:
I would look at Guerrero las Prias, the Supreme Court case in 2020.

[00:08:10] Speaker 04:
And it doesn't rule out looking at ineffective assistance of counsel as a mixed question of fact and law.

[00:08:20] Speaker 04:
And I think that that's worth talking about at some point in the future in this case.

[00:08:26] Speaker 04:
But I will say that if you look at Lowe versus Ashcroft, the fact that the in-abstential order doesn't require prejudice, and that's one thing that the BIA kind of hung their hat on, that he didn't suffer prejudice, he did suffer, my two minutes are up.

[00:08:50] Speaker 03:
All right, thank you.

[00:08:51] Speaker 03:
You may reserve the rest of your time.

[00:08:52] Speaker 03:
Thank you.

[00:08:52] Speaker 03:
And we'll hear from the Attorney General.

[00:09:02] Speaker 03:
Ms.

[00:09:02] Speaker 00:
Groth.

[00:09:10] Speaker 00:
Good morning, Your Honors, and may it please the court, Stephanie Groff for the Attorney General.

[00:09:14] Speaker 00:
I just want to touch on one point that my friend on the other side mentioned.

[00:09:18] Speaker 00:
The standard review here is abuse of discretion.

[00:09:21] Speaker 00:
While the Supreme Court issued a decision in Giro-Lasperia, that is not applicable to what we have here.

[00:09:26] Speaker 00:
In fact, this court, as of October 17th, and Montejo Gonzalez reiterated the standard that for motions to reopen, this court is looking at whether the agency abused its broad discretion, whether they acted arbitrarily,

[00:09:39] Speaker 00:
and capricious, et cetera.

[00:09:41] Speaker 01:
No, I have a question about that.

[00:09:43] Speaker 01:
It seems that we have two different findings that are present.

[00:09:48] Speaker 01:
One is that there was equitable tolling until November, and then he was not duly diligent in getting a motion to reopen filed.

[00:09:58] Speaker 01:
And the other is that the battle was lost in February of 2011 when he failed to appear and did not then contact the agency,

[00:10:08] Speaker 01:
immigration court to find out what had happened.

[00:10:12] Speaker 01:
So we have both of those floating in the board and the IJ's opinions.

[00:10:18] Speaker 01:
What do we do with the fact that there's equitable tolling under one and there's no equitable tolling under the other?

[00:10:25] Speaker 00:
Well, yes, your honor, let me just clarify.

[00:10:28] Speaker 00:
We read the boards and the immigration judges decision as two separate issues.

[00:10:33] Speaker 00:
First is the timeliness and second, assuming timeliness, the he demonstrated exceptional circumstances, specifically with that timeliness.

[00:10:42] Speaker 00:
As Judge Miller noted, there's 180 days.

[00:10:46] Speaker 00:
If it's not, then a non-citizen must demonstrate that they've exercised their due diligence in obtaining vital information related to the claim.

[00:10:54] Speaker 00:
So the agency's decision here, especially the board, focused on that aspect.

[00:10:58] Speaker 00:
Yes, it was untimely.

[00:10:59] Speaker 00:
There's no contest about that.

[00:11:01] Speaker 00:
But the board found that while there was concerns with Mr. Donrad's representation, the non-citizen here, Mr. Hadyan,

[00:11:08] Speaker 00:
did not act with due diligence

[00:11:24] Speaker 00:
he obtained vital information related to the claim.

[00:11:28] Speaker 00:
As my friend in the court noted, he did have awareness of his February 2011 hearing.

[00:11:33] Speaker 00:
While Mr. Donrad was representing him in some way, there was, they had it falling out, and he specifically on this record, and no one can test the fact that he stated that he chose not to go.

[00:11:45] Speaker 00:
He had awareness, he had both the notice of hearing, he was at the prior,

[00:11:50] Speaker 00:
master calendar where while his attorney said he would tell him both the NTA his notice to appear and subsequent notice of hearing specifically list out the requirements for a non-citizen if they fail to appear and there is no contest that he had that he was somewhat aware that something happened and yet he chose not to go and that's really what this case is about yes the government understands that he was going through

[00:12:14] Speaker 00:
hard times with homelessness and destitute, but ultimately he made the deliberate choice here not to go and now using ineffective assistance to counsel of his three prior attorneys cannot overcome that equitable tolling and can overcome exceptional circumstance because ultimately the causation is on the non-citizen here.

[00:12:33] Speaker 00:
and specifically more over with the obtaining vital information.

[00:12:38] Speaker 00:
There's, Mr. Haryan himself notes in his declaration that he continually sought to figure out what was happening with this case and seek legal representation, but there's no explanation on what he was actually doing.

[00:12:52] Speaker 00:
In fact, as the board properly and did not abuse its discretion in noting,

[00:12:56] Speaker 00:
that he could have called the immigration court.

[00:12:59] Speaker 00:
He could have appeared on his own while he thought he wouldn't be able to.

[00:13:03] Speaker 00:
He did nothing to follow up until past the 180 days and three months after that in November when he reached out with Ms.

[00:13:11] Speaker 00:
Scholes.

[00:13:12] Speaker 00:
Specifically, the record also shows that Mr. Donrad sent him messages on LinkedIn and even followed up with emails.

[00:13:19] Speaker 00:
And while it's unclear if he asked about the case, Mr. Haryan here made the deliberate choice not to necessarily follow up.

[00:13:27] Speaker 00:
And again, that's where the board found that he did not obtain this vital information necessary and therefore equitable tolling was not required.

[00:13:37] Speaker 01:
The board emphasizes a prejudice component to ineffective assistance, but Lowe seems to say that's not part of the inquiry.

[00:13:46] Speaker 01:
Is the legal error, if that's what it was, on the part of the board in the prejudice analysis, is that something that would require remand?

[00:13:56] Speaker 00:
So, Your Honor, if that were the case, yes.

[00:13:59] Speaker 00:
But here, what the board was relying on when talking about prejudice specifically was within the equitable tolling component of this.

[00:14:07] Speaker 00:
The equitable tolling for ineffective assistance of counsel does take into consideration prejudice.

[00:14:12] Speaker 00:
It is when a motion reopen is timely, or it's assumed timely, that that ineffective assistance of counsel, the prejudice is almost assumed.

[00:14:20] Speaker 00:
So it's not what's at issue.

[00:14:21] Speaker 00:
So while opposing counsel noted in their briefs that there was a legal error, they should not have addressed prejudice when it comes to the tolling, it is not a legal error, and the board was within their bounds to discuss prejudice.

[00:14:34] Speaker 00:
But ultimately, prejudice is not even what the board necessarily was focusing on.

[00:14:38] Speaker 00:
They mentioned it, but it's that unable to obtain vital information.

[00:14:42] Speaker 00:
And again, this goes back to Mr. Hodian himself.

[00:14:45] Speaker 00:
He chose not to go.

[00:14:46] Speaker 00:
and now using ineffective assistance at counsel later on is not enough to overcome this timeliness.

[00:14:53] Speaker 00:
Now, for exceptional circumstances, while the court does not need to reach that issue as tolling is dispositive, we would note that, yes, prejudice should not be necessarily addressed when relating to ineffective assistance at counsel.

[00:15:06] Speaker 00:
But here, the exceptional circumstances, Mr. Hodian has not shown that he did not appear

[00:15:11] Speaker 00:
because of the exceptional circumstance.

[00:15:14] Speaker 00:
That's specifically what the statute says.

[00:15:16] Speaker 00:
And it goes back to the same thing.

[00:15:18] Speaker 00:
Because of his cause, he said that he did not go because he didn't want to go without representation.

[00:15:24] Speaker 00:
That is not ineffective.

[00:15:27] Speaker 00:
Assistance to counsel did not cause him not to go.

[00:15:29] Speaker 00:
He's never contested or argued that Mr. Donrad told him not to go.

[00:15:33] Speaker 00:
And his two attorneys later on

[00:15:36] Speaker 00:
We're not representing him at the time.

[00:15:38] Speaker 00:
So this, because of exceptional circumstances, his claim fails on that aspect.

[00:15:43] Speaker 00:
And I will note that this court's recent decision and Monteo Gonzalez, which I mentioned for the standard review, that relates to exceptional circumstances.

[00:15:51] Speaker 00:
But this case is distinguishable as that case determined that there was no timeliness issue.

[00:15:57] Speaker 00:
This court in that case noted that it was not creating a new standard.

[00:16:01] Speaker 00:
It is a totality of circumstance.

[00:16:03] Speaker 00:
And here, that's exactly what the agency did.

[00:16:06] Speaker 00:
They looked at the totality of circumstances, even assuming timely, but found that it was Mr. Hodian on his own who had his notice to appear, had two subsequent hearing notices.

[00:16:15] Speaker 00:
attended hearing, attended a hearing himself, and yet has admitted that it was his choice not to attend, and he cannot rely on his attorney's ineffectiveness to reopen his case.

[00:16:29] Speaker 03:
And on the standard review, you mentioned that we review the denial of a motion to reopen for abuse of discretion, which is correct.

[00:16:37] Speaker 03:
But have we said that we review a determination of equitable tolling in particular for abuse of discretion?

[00:16:45] Speaker 00:
I would need to double-check that, Your Honor.

[00:16:48] Speaker 00:
I believe equitable tolling the concept is a legal concept, so if there was an error related to the ultimate legal finding, it could be de novo, and same with factual findings.

[00:16:58] Speaker 00:
It may be mixed, but here, ultimately, this Court has long said that abusive discretion, which I believe encompasses the equitable tolling,

[00:17:07] Speaker 00:
abuse of discretion encompasses equitable tolling.

[00:17:10] Speaker 00:
So either way here, there is no legal error, there's no factual error, and there is no abuse of discretion.

[00:17:17] Speaker 00:
So under all three possible standards of review, Mr. Haryon has not met his burden of proof, but specifically it is abuse of discretion.

[00:17:25] Speaker 00:
When looking at the agency's broad discretion,

[00:17:28] Speaker 00:
And that goes inherently to the concepts of motion reopen.

[00:17:31] Speaker 00:
Mr. Hodion was aware that he was possibly removable back when USCIS denied his request to remove the conditions.

[00:17:40] Speaker 00:
They in fact found that there was some evidence that he maybe entered into a marriage for

[00:17:45] Speaker 00:
somewhat concerning reasons to obtain status in the United States.

[00:17:50] Speaker 00:
He was aware of his hearings, he knew that something happened, and in November of 2011, was aware that he was ordered removed.

[00:17:59] Speaker 00:
And years later, sought to reopen.

[00:18:02] Speaker 00:
And that is not an abusive discretion when the board here denied his motion to reopen.

[00:18:08] Speaker 00:
And for the foregoing reasons, we ask this court to deny the petition for review and dismiss as it relates to any challenge to Sue Esponte, if the court doesn't have any other further questions.

[00:18:19] Speaker 03:
It appears we do not, so thank you.

[00:18:21] Speaker 00:
Thank you, Your Honors.

[00:18:29] Speaker 04:
Thank you, Your Honors.

[00:18:31] Speaker 04:
I just want to address the timeliness issue.

[00:18:34] Speaker 04:
In this case, with ineffective assistance of counsel, there's no way that Mr. Hadian would necessarily know that there was a three-month period in which he had to file a motion to reopen.

[00:18:49] Speaker 04:
How would he know that?

[00:18:52] Speaker 04:
He had an attorney, Mr. Donrad, who by all standards was far below even the most minimum ability to represent Mr. Hadian.

[00:19:05] Speaker 04:
And the fact that Mr. Hadian did not also

[00:19:09] Speaker 04:
There's no clue that he got an oral advisal on his failure to appear would result in a removal order.

[00:19:20] Speaker 01:
He had the written notices to appear, didn't he?

[00:19:23] Speaker 04:
But the statute also says that there needs to be an oral advisal.

[00:19:30] Speaker 04:
And that is very important.

[00:19:33] Speaker 04:
Many clients don't understand completely what's going on in court.

[00:19:39] Speaker 04:
you know, a whole new venue for them, so to speak.

[00:19:44] Speaker 04:
So I think for Mr. Hadian, who is not a native speaker of English, how would he necessarily know everything?

[00:19:55] Speaker 04:
I think that in this case, why do we

[00:20:00] Speaker 04:
Orally say that in court.

[00:20:03] Speaker 04:
We advise our clients that they must.

[00:20:06] Speaker 02:
You know, in this case, the BIA made a specific finding that he was on notice and then also made a finding that he said he did not want to attend without representation.

[00:20:20] Speaker 02:
So, what do you have that says that's not true?

[00:20:24] Speaker 04:
Well, Mr. Hadian also said that Mr. Donrad emphasized that he must attend court with his attorney.

[00:20:35] Speaker 01:
Where in the record is that?

[00:20:37] Speaker 04:
It's in his declaration.

[00:20:43] Speaker 04:
So he did not necessarily understand the consequences.

[00:20:50] Speaker 02:
But the board said he was advised.

[00:20:54] Speaker 02:
They made the finding that he had been advised of the hearing.

[00:20:58] Speaker 02:
and that he chose not to go because he didn't want to go without his attorney.

[00:21:02] Speaker 04:
Well, you're referring to the immigration judge's decision, and in that decision... I'm reading from the BIA decision.

[00:21:12] Speaker 04:
Well, which adopted the IJ's decision.

[00:21:17] Speaker 04:
But interestingly, in the IJ's decision, he was talking about that Mr. Hadian missed an individual hearing.

[00:21:24] Speaker 04:
It was, in fact, a master hearing.

[00:21:27] Speaker 04:
In an individual hearing, you must file documents in that case.

[00:21:32] Speaker 04:
Nothing was filed.

[00:21:34] Speaker 04:
Not one thing.

[00:21:35] Speaker 02:
I understand all that.

[00:21:38] Speaker 02:
The ultimate question is, are there exceptional circumstances?

[00:21:43] Speaker 02:
When we found that, there's no finding that the applicant was informed.

[00:21:52] Speaker 02:
Basically, those cases come down to the fact there's no notice at all, and here there's a finding of notice.

[00:21:57] Speaker 02:
And he may have misinterpreted it, but that's the problem for your case.

[00:22:01] Speaker 04:
But Mr. Donrad did not tell Mr. Hadian specifically that he must go to his hearing.

[00:22:07] Speaker 04:
He never advised him of that.

[00:22:09] Speaker 04:
And that's just complete incompetence on Mr. Donradt's part.

[00:22:14] Speaker 01:
Does that excuse Mr. Hadian's failure to follow up to determine what happened when he did not appear at the hearing he knew had been scheduled?

[00:22:25] Speaker 04:
He was confused.

[00:22:30] Speaker 04:
From the record, I understand that he was confused and he said at one point that Mr. Donrad said he would fix it.

[00:22:41] Speaker 01:
And he just assumed that that's what... But he knew that wasn't true when he got the notice of removal in November of 2011.

[00:22:48] Speaker 04:
Exactly, but that was the first time that he became aware of the gross error and ineffective assistance of counsel of Mr. Donrad.

[00:22:58] Speaker 04:
I mean, we're not dealing with lawyers here.

[00:23:03] Speaker 02:
We're dealing with... Basically, this is off on the case.

[00:23:08] Speaker 04:
Right, but the record, I mean, the case law record shows that there's a lot of, you know, deference to people who don't really get it.

[00:23:19] Speaker 04:
And, I mean, if you look at Rodriguez-Larez, that case, it was over four years before they understood what was going on.

[00:23:30] Speaker 04:
They had no idea.

[00:23:33] Speaker 04:
Thank you.

[00:23:34] Speaker 03:
Thank you, counsel.

[00:23:35] Speaker 03:
Thank you, your honors.

[00:23:36] Speaker 03:
Thanks both counsel for their arguments, and the case is submitted.