[00:00:00] Speaker 04:
Good afternoon, Your Honors.

[00:00:03] Speaker 04:
Good afternoon.

[00:00:06] Speaker 04:
May I please the court?

[00:00:08] Speaker 04:
My name is Leah Tomilova.

[00:00:09] Speaker 04:
I represent the appellants.

[00:00:11] Speaker 04:
This case is about how the BIA reads the matter of Avetisyan about administrative closure.

[00:00:18] Speaker 04:
The BIA reads it time and time again, and in this case as well, to be only about one factor, whether or not a person has either concurrently pending application with CIS or immediately available application with a CIS.

[00:00:32] Speaker 04:
They ignore completely the rest of the factors in the case.

[00:00:36] Speaker 04:
and they ignore the matter of Evetgesyan that says that this is one of the factors, not explicitly all the factors.

[00:00:43] Speaker 04:
The government seems to support that, because in their brief they also only address this factor and nothing else.

[00:00:52] Speaker 04:
Also, the DHS would like us to believe that this case is about discretion.

[00:00:55] Speaker 04:
However, we do not argue that BA does not have discretion in this case.

[00:01:01] Speaker 04:
It's absolutely their discretion.

[00:01:03] Speaker 04:
We are arguing how do they read the law about the discretion and apply it to the facts of the case.

[00:01:09] Speaker 04:
Because just the cursory line that we took into consideration all the factors is not sufficient because we have no idea what they did with it.

[00:01:19] Speaker 04:
We have no idea about their analysis.

[00:01:21] Speaker 04:
And that leaves the door open for abuse of discretion.

[00:01:25] Speaker 01:
I'm sorry, I think you said at the beginning that they only considered one factor.

[00:01:30] Speaker 01:
Because as I look at the board's decision, there's mention of several of the factors.

[00:01:35] Speaker 01:
So which is the one that you think they looked at?

[00:01:37] Speaker 04:
They mentioned them.

[00:01:38] Speaker 04:
They only considered one factor, whether or not the I-130 that the family petition that the children will file when they're 21, whether or not it's sufficient for an enclosure.

[00:01:51] Speaker 04:
And they find it speculative, and they find it to be too remote in time.

[00:01:55] Speaker 04:
The rest, they just mentioned.

[00:01:57] Speaker 04:
That's it.

[00:01:57] Speaker 04:
They don't give them any consideration.

[00:01:59] Speaker 01:
What is the distinction you're drawing between mentioning and giving consideration to?

[00:02:07] Speaker 01:
How do we know, notwithstanding the fact that they said something about it, that they weren't considering it?

[00:02:12] Speaker 04:
Even their decision, they say, because this I-130 is too remote in time and too speculative, we deny admin closure, then I do believe they did not consider the rest of the factors.

[00:02:24] Speaker 01:
You can have a multi-factor balancing test where you, in the particular circumstances of a case, one of the factors is particularly important and that's the one that drives the decision.

[00:02:34] Speaker 01:
And you can say, you know, there's factor A, factor B, factor C. Because of factor D, we conclude

[00:02:41] Speaker 01:
whatever we conclude, that doesn't mean you're not applying the factors, does it?

[00:02:45] Speaker 04:
Absolutely.

[00:02:46] Speaker 04:
However, the only way we can infer what they did or did not consider is their decision, right?

[00:02:51] Speaker 04:
The discussion and their decision.

[00:02:53] Speaker 04:
So if in their decision, I do not see the discussion about the fact that she is afraid to go back, the factor that we raised in the motion to admin close, if they do not address the fact that she has two USC children who are seven and four and who will become 21,

[00:03:10] Speaker 04:
and petition for her.

[00:03:13] Speaker 04:
If they don't address the fact that she doesn't have criminal history, that she's not a security risk under the DHS guidelines, then all the factors... Are you talking about the factors under avatician?

[00:03:26] Speaker 04:
Yes.

[00:03:28] Speaker 01:
Those last couple things I don't...

[00:03:30] Speaker 04:
I understand it.

[00:03:31] Speaker 04:
It was confusing.

[00:03:33] Speaker 04:
So we have a matter of eutisian, right?

[00:03:35] Speaker 04:
That lists the factors for us and says, these are not exhaustive.

[00:03:40] Speaker 04:
You can consider other facts in the case, other factors in the case.

[00:03:44] Speaker 04:
So when we raise admin closure, these are the factors that we raised in favor of the admin closure.

[00:03:50] Speaker 02:
And those are- Have you discussed mediation with the government?

[00:03:53] Speaker 02:
I found striking about this is that DHS didn't respond to the appeal or to the motion at all.

[00:04:00] Speaker 02:
And I'm just wondering if you reached out, given the fact that your client does have this U.S.

[00:04:09] Speaker 02:
citizen children.

[00:04:09] Speaker 02:
She clearly evidenced her fear of persecution if returned.

[00:04:16] Speaker 02:
I'm just wondering, did you go to mediation?

[00:04:21] Speaker 02:
Do you want to go to mediation?

[00:04:22] Speaker 02:
Have you gone in it?

[00:04:23] Speaker 02:
Did it not succeed?

[00:04:25] Speaker 04:
We asked for an enclosure from oil as well.

[00:04:28] Speaker 04:
And they said, this is not the case.

[00:04:30] Speaker 04:
That's going to marry that.

[00:04:33] Speaker 02:
So that was the end.

[00:04:35] Speaker 02:
But then they didn't oppose your motion.

[00:04:38] Speaker 04:
No.

[00:04:38] Speaker 04:
At the stage of the BIA, they did not oppose the motion.

[00:04:42] Speaker 04:
But there is no mediation available at that stage.

[00:04:44] Speaker 04:
However, here, when we are already at the Ninth Circuit, we did reach out to oil and we asked, can we have men close at the Ninth Circuit stage for the same reason, to wait until children petition for her?

[00:04:56] Speaker 04:
And they advised us this is not the case that they would do it in.

[00:05:01] Speaker 04:
In the opposite, they fighting this case, which is odd to me because they didn't fight it at the BA stage.

[00:05:08] Speaker 04:
They didn't really care because they didn't respond at all.

[00:05:11] Speaker 04:
But here, they do fight it.

[00:05:13] Speaker 04:
However, this is not surprising.

[00:05:16] Speaker 04:
The DHS and the government, they always have strikingly different policies.

[00:05:23] Speaker 04:
They change every year.

[00:05:25] Speaker 04:
And that's one of the problems that we have with this case, because EOIR changes policy about a VTSEAN.

[00:05:31] Speaker 02:
And oil is representing DHS.

[00:05:34] Speaker 02:
Yes.

[00:05:34] Speaker 02:
So if DHS doesn't oppose the administrative closure,

[00:05:39] Speaker 02:
And the counsel for DHS has to do what DHS wants, not what it wants.

[00:05:47] Speaker 01:
But at this stage, OIL is defending the position of the attorney general as reflected by the board, right?

[00:05:53] Speaker 04:
Exactly.

[00:05:54] Speaker 04:
Yes.

[00:05:55] Speaker 04:
But the problem is they... So the matter of Ijtisyan and the admin closure is problematic from the beginning.

[00:06:02] Speaker 04:
Not from the beginning, let's say 2012.

[00:06:05] Speaker 04:
That's when the whole back and forth started, right?

[00:06:08] Speaker 04:
Yes, Admit Closure 2012.

[00:06:09] Speaker 04:
No, Admit Closure 2018.

[00:06:11] Speaker 04:
Yes, Admit Closure 2021.

[00:06:13] Speaker 04:
And the DHS changes policies every year.

[00:06:15] Speaker 04:
If this case right now was before an IJA, the NTA is deficient, and the BI already said the government cannot cure this deficiency, this case would be dismissed.

[00:06:25] Speaker 04:
Why is the NTA deficient?

[00:06:27] Speaker 04:
It doesn't state the date and time of the hearing as it's supposed to per regulations.

[00:06:32] Speaker 04:
And recent BIA case stated that they cannot hear that by filing subsequent notice of the hearing.

[00:06:39] Speaker 01:
But did you raise that issue before the agency?

[00:06:42] Speaker 04:
No, the rule changed after the BAE case was already concluded.

[00:06:46] Speaker 04:
And also at this, at the BAE stage, they would not be able to go back and consider because splitings were already done.

[00:06:54] Speaker 01:
And you didn't raise it in your brief.

[00:06:55] Speaker 04:
No, again, it happened afterwards.

[00:06:57] Speaker 04:
We have a changing every day.

[00:06:59] Speaker 00:
But at the time of the hearing before the BIA, the rule of the BIA was that the most important factor was whether there is an opposition to it.

[00:07:13] Speaker 00:
And did the BIA, how did they?

[00:07:16] Speaker 04:
The BIA said, even though the DHS did not file a response, we still deny.

[00:07:25] Speaker 04:
So they did it contrary to the law, actually.

[00:07:28] Speaker 00:
So did they give a reason why?

[00:07:30] Speaker 04:
No.

[00:07:31] Speaker 01:
Well, they identified some of the other factors, right?

[00:07:35] Speaker 04:
Yeah, they go back again to the same petition by the USC kids.

[00:07:38] Speaker 04:
And also, they claim that this is speculative.

[00:07:41] Speaker 04:
So let's look at it.

[00:07:42] Speaker 04:
We have two biological US citizen kids.

[00:07:46] Speaker 04:
Is it a fact?

[00:07:46] Speaker 04:
Yes, it is a fact.

[00:07:47] Speaker 04:
It's not a speculation.

[00:07:49] Speaker 04:
Are the kids going to be 21 at some point?

[00:07:52] Speaker 04:
Yes, absent.

[00:07:53] Speaker 01:
That point is 15 years from now?

[00:07:55] Speaker 04:
14?

[00:07:57] Speaker 01:
Well, from the time of the... Yes, it was 15, yes, at that time.

[00:08:01] Speaker 04:
I would agree with them that this is so remote in time, except for when we look at the processing times by the EOIR, it's the same more or less time.

[00:08:12] Speaker 04:
We have cases that are pending for 10-20 years.

[00:08:15] Speaker 04:
So with that, for them to claim that this is too remote in time, kind of not fair.

[00:08:22] Speaker 01:
I mean, it's a little odd to say that because the adjudicative process is slow, therefore they should be prohibited from doing anything to try to move cases along.

[00:08:35] Speaker 04:
No, I would say this gives perspective of what is too long and what is not too long.

[00:08:42] Speaker 00:
If we were to find that they didn't properly weigh, for example, the most important, what they've said is the most important factor, the answer then is to remand for them to reconsider the factors.

[00:08:55] Speaker 04:
Would be procedurally correct, yes.

[00:08:59] Speaker 04:
I think I will preserve whatever I have left for the rebuttal.

[00:09:05] Speaker 04:
OK.

[00:09:06] Speaker 02:
Thank you.

[00:09:11] Speaker 03:
Good morning, may it please the court.

[00:09:13] Speaker 03:
This is Dana came Larry for the Attorney General.

[00:09:16] Speaker 03:
At the outset, I just want to clear up a couple of things.

[00:09:19] Speaker 03:
The request for JC happened after this was countered for oral argument and under Sarkar we are not.

[00:09:26] Speaker 02:
The request for JAC?

[00:09:29] Speaker 03:
Judicial administrative closure before this court, which was just referenced by opposing counsel, and that's why it was rejected.

[00:09:37] Speaker 03:
In terms of what the board did here, it acted within its broad discretion and reviewed its unexhaustive list from Adder of Abatesian and WYU.

[00:09:47] Speaker 03:
And decided that this was not the case that it should be administratively closed that is a docking tool and they have broad discretion to look at the factors and determine.

[00:09:59] Speaker 03:
whether it merits administrative closure.

[00:10:02] Speaker 00:
Can you tell me where they considered what WYU directs, that being the most important factor?

[00:10:09] Speaker 00:
Where did they analyze and say why?

[00:10:12] Speaker 00:
Or did they even acknowledge that the government didn't oppose administrative closure?

[00:10:17] Speaker 03:
They noted it on the fifth page of the decision.

[00:10:19] Speaker 03:
They note that DHS has neither joined nor responded.

[00:10:22] Speaker 00:
That's not the same as acknowledging that they didn't oppose, right?

[00:10:28] Speaker 03:
Well, Your Honor, DHS can actively join in a motion to administratively close.

[00:10:35] Speaker 03:
They don't respond to every single request, because that would be overwhelming for that agency.

[00:10:41] Speaker 03:
But the board has the authority to administratively close.

[00:10:44] Speaker 03:
And really, they're the ones that get to look at the factors.

[00:10:46] Speaker 00:
Well, what do the regulations say about if DHS or a petitioner doesn't file a timely opposition to a motion to administratively close?

[00:10:55] Speaker 00:
How is the BIA supposed to consider that?

[00:10:58] Speaker 03:
Your Honor, I don't believe there's anything in the regulations, and I would actually argue that I'm not even sure she raised this in her brief.

[00:11:04] Speaker 00:
It's in there.

[00:11:05] Speaker 00:
It's cited in it, and it's 8 CFR 1003.2 G3, which specifically says, it's cited in her brief,

[00:11:14] Speaker 00:
that if it's not opposed, I think it's within 13 days, then the board shall deem it unopposed.

[00:11:20] Speaker 00:
Not just that they didn't respond or they neither joined, but it's supposed to be deemed as not opposing.

[00:11:27] Speaker 00:
And doesn't WYU say that that's the most important factor?

[00:11:32] Speaker 03:
But I'm sorry, Your Honor.

[00:11:34] Speaker 03:
Are you saying that in every administrative closure case that the DHS does not respond to, the board needs to then say that it's unopposed and grant closure?

[00:11:44] Speaker 00:
No, no, no, they don't have to grant it.

[00:11:45] Speaker 00:
Of course not.

[00:11:46] Speaker 00:
They don't have to grant it.

[00:11:47] Speaker 03:
They acknowledged it, but they also acknowledged that there are other serious factors that are at play here.

[00:11:51] Speaker 03:
I mean, this court itself in Ianian very recently refused to put a case of mediation with an approved I-130 petition, which we are nowhere close to that here, because of the processing times and how long it would sit on this court's docket.

[00:12:05] Speaker 03:
The board is entitled to

[00:12:08] Speaker 03:
have similar conclusions, particularly when faced with this 15, 16 year, then they have to petition, then that needs to be processed, there needs to be a visa.

[00:12:18] Speaker 03:
And in terms of bringing up her asylum claim, she completely abandoned those claims before the agency.

[00:12:25] Speaker 03:
So why would they consider that?

[00:12:27] Speaker 00:
I'm just focusing on WYU says,

[00:12:31] Speaker 00:
that it is the most important factor right that that's what it says and that is now again it's gone back and forth it's now in place right and supposed to be followed and so how do I look at this decision and see that the BIA followed that directive

[00:12:48] Speaker 00:
and said, even though it's the most important factor, and we acknowledge that it's deemed unopposed, not just neither joined nor responded, as the regulation says, a motion shall be deemed unopposed unless a timely response is made.

[00:13:02] Speaker 00:
How do I see from this that it actually considered it and said, notwithstanding the fact it's unopposed, we believe these other factors outweigh it?

[00:13:14] Speaker 00:
Not that they couldn't.

[00:13:15] Speaker 00:
Maybe they could.

[00:13:16] Speaker 00:
But the question is, did they do that?

[00:13:19] Speaker 03:
Your Honor, just because they didn't use the exact language that you're discussing does not mean that they did not follow the factors.

[00:13:26] Speaker 03:
I think it's very clear that they outlined what the factors are, they acknowledged DHS neither opposed nor responded, but they discussed why the other factors were important and why in this case within their discretion.

[00:13:37] Speaker 03:
I mean, this is being reviewed.

[00:13:40] Speaker 03:
For abuse of discretion and our position is that it is absolutely not abusive discretion for them to lay out the factors and decide that in this particular circumstance the protected period of time is Enough and and in fact that was conceded.

[00:13:55] Speaker 03:
She said it was a remote remote in time possibility for relief in in her request for administrative closure to the board and

[00:14:03] Speaker 00:
How do we know that the board considered that under WYU, it's the most important factor?

[00:14:10] Speaker 00:
Did they recite that?

[00:14:14] Speaker 03:
Your Honor, they cite WYU extensively, and then they note at the end that DHS has neither joined nor responded, but still say under the circumstances presented here, we will deny the motion for administrative closure.

[00:14:25] Speaker 00:
They cite it for discussing the factors set forth in matter of- Right.

[00:14:29] Speaker 03:
That is acknowledging the factors that are in their decision.

[00:14:33] Speaker 00:
I'm just struggling with, because WYU and even this court, the Ninth Circuit, this, it's not really me, but the Ninth Circuit has acknowledged that that is what it says, that it's the most important factor.

[00:14:46] Speaker 00:
I know the Seventh Circuit has reversed and remanded when

[00:14:53] Speaker 00:
it wasn't followed, at least it wasn't clear that that was the most important factor.

[00:14:57] Speaker 00:
I'm just struggling with, because they didn't anywhere in there acknowledge it's the most important factor.

[00:15:03] Speaker 00:
Not one of many, but the most important, can be overruled, no question can be, but we have to make sure that they actually followed that and then exercise their discretion.

[00:15:15] Speaker 02:
Language that would have been useful in resolving this is if they had said this is the most important factor

[00:15:22] Speaker 02:
but we find these other factors outweigh that factor in this instance.

[00:15:27] Speaker 02:
Sure, we could go back and forth about how board decisions are an artful of times.

[00:15:32] Speaker 02:
Council, we're not arguing with you.

[00:15:34] Speaker 02:
Yeah, I just said this is actually a pretty thorough board decision.

[00:15:37] Speaker 02:
Just interrupted me, Council.

[00:15:38] Speaker 02:
I'm sorry, Your Honor.

[00:15:39] Speaker 02:
Yes, really.

[00:15:40] Speaker 02:
I'm just trying to get to the bottom of this, just try to figure out if they did follow this case.

[00:15:47] Speaker 02:
What did the board acknowledge that it was deemed unopposed?

[00:15:53] Speaker 02:
I mean, I'm not sure it was the wisest thing to

[00:15:58] Speaker 02:
filed this motion for administrative closure instead of appealing on the merits of this case.

[00:16:06] Speaker 02:
And I don't mean any disrespect to counsel, but I'm just looking at it as a whole.

[00:16:11] Speaker 02:
But I mean, I just don't, I tend not to clearly see the weighing of factors that

[00:16:19] Speaker 02:
my colleague is discussing in this opinion, and what is the harm with remanding to have them really apply the factors?

[00:16:27] Speaker 02:
And also, this is another question that's lingering.

[00:16:31] Speaker 02:
The fact that it was deemed unopposed, could DHS come back in and say, well, now we oppose it?

[00:16:38] Speaker 03:
I'm honestly not sure, probably.

[00:16:42] Speaker 03:
I assume there would be another round of briefing if you remanded it.

[00:16:45] Speaker 02:
Well, it also strikes me that it seems sort of unfair that the merits of this case were never briefed.

[00:16:53] Speaker 03:
That was a litigation strategy.

[00:16:55] Speaker 03:
I can't even speak to that.

[00:16:57] Speaker 01:
If we conclude that the board's opinion is ambiguous as to whether the board correctly understood the two precedents that it cited or incorrectly understood them, what conclusion should we draw?

[00:17:14] Speaker 03:
Well, Your Honors, I really think with the standard of review being abuse of discretion, that is a very high hurdle to send it back down to the board.

[00:17:21] Speaker 02:
Well, abuse of discretion also means error of law.

[00:17:26] Speaker 01:
Isn't the answer that we presume that the board has correctly applied the law absent some indication in the opinion that it didn't?

[00:17:31] Speaker 03:
Yes, that's correct.

[00:17:36] Speaker 03:
Are there any further questions for me?

[00:17:39] Speaker 02:
I don't have any more.

[00:17:41] Speaker 02:
Thank you.

[00:17:48] Speaker 04:
Your Honor, what you've heard right now is what we hear on a daily basis in court, the immigration court.

[00:17:54] Speaker 04:
DHS is too busy.

[00:17:56] Speaker 04:
The court is too busy.

[00:17:57] Speaker 04:
However, we have people's lives on the line.

[00:18:00] Speaker 04:
We have safety of these two US citizen children.

[00:18:04] Speaker 04:
We have future of this person who is not a danger to anyone.

[00:18:09] Speaker 04:
to not do their job properly just because they're too busy is not fair.

[00:18:15] Speaker 04:
It's just not fair.

[00:18:17] Speaker 04:
Under due process or just a human understanding of fair.

[00:18:21] Speaker 04:
Also, you cannot just go back before you didn't oppose.

[00:18:27] Speaker 04:
Now you changed your mind and you opposed.

[00:18:29] Speaker 04:
I would say that's abuse of discretion, even though DHS does not have discretion in the legal meaning of that term, but that shows you that they can do whatever they want in immigration proceedings, and that's what we have to deal with every day.

[00:18:43] Speaker 04:
Thank you, Your Honors.

[00:18:45] Speaker 02:
Thank you, Counsel.

[00:18:48] Speaker 02:
Torres v. Garland will be submitted.

[00:18:50] Speaker 02:
We have previously submitted Juan Montejo v. Garland, and we'll take up U.S.

[00:18:56] Speaker 02:
v. Pearson.