[00:00:01] Speaker 00: Good morning, Camille Fenton, Federal Defenders, on behalf of Mr. Campos. [00:00:05] Speaker 00: I plan to reserve two minutes for rebuttal, and I'll keep an eye on the clock. [00:00:11] Speaker 00: Okay. [00:00:11] Speaker 00: And is a versatile word that can be read just disjunctively. [00:00:15] Speaker 00: Just as in Pulsifer, a disjunctive reading of Section 1326A2B is more reasonable because it does not reward more serious immigration history. [00:00:25] Speaker 03: Could you tell me what, in your view, is the purpose of that affirmative defense? [00:00:30] Speaker 00: The purpose of that affirmative defense, it's, well, I would argue it's an exception to prosecution, but it's built into the statute to lessen the penalty for somebody who has remained out of the country for the requisite advanced consent time period. [00:00:45] Speaker 00: So it doesn't mean they won't be prosecuted. [00:00:48] Speaker 00: It just simply means they are spared from the felony. [00:00:51] Speaker 00: They can still be prosecuted under Section 1325, the misdemeanor. [00:00:56] Speaker 02: best case or evidence that section 1182 modifies 1326A, the advanced consent requirement. [00:01:04] Speaker 02: 1182 seems to relate only to visa applications, so help me with that, please. [00:01:11] Speaker 00: So if I had to choose a best case, I would argue that Pulsifer is the best case. [00:01:16] Speaker 00: I think it's clear that the advanced consent time periods apply to section 1326 for three reasons. [00:01:24] Speaker 00: The first is that if they didn't interact, more than half of the statutory language in section 1326 would be nullified. [00:01:30] Speaker 00: The second is that the plain language of 1326 A to B specifically says under this chapter or any prior act. [00:01:39] Speaker 00: And third, the INA was a unified effort by Congress to combine all civil and criminal rules regarding immigration. [00:01:46] Speaker 00: Section 1182 and 1326 appear in the same chapter. [00:01:50] Speaker 00: And the reason Pulsifer, I think, is the best case is there's an analogy that can be drawn. [00:01:55] Speaker 00: So in Pulsifer, the Supreme Court discusses that if Pulsifer's interpretation of the safety valve provision were correct and all three criteria had to be met, that would render all of the language in one of the subparagraphs, subparagraph A, superfluous. [00:02:10] Speaker 02: As you know, one of our sister circuits has some case law that interprets 1182's effect on a 1326, which is different than what you're advocating. [00:02:19] Speaker 02: Why should we ignore the reasoning of that case? [00:02:23] Speaker 00: So those the out-of-circuit cases were are all pre-pulsifer and I don't think considered what the Supreme Court had to say in that case. [00:02:32] Speaker 02: Do you think Pulsifer in effect overrides the reasoning? [00:02:37] Speaker 00: Of those three out-of-circuit cases, yes. [00:02:39] Speaker 01: But doesn't Pulsifer say that and is of course disjunctive? [00:02:44] Speaker 00: I mean isn't that a direct quote from the case? [00:02:47] Speaker 00: It says and [00:02:49] Speaker 00: I think everyone agreed and means and so that it was conjunctive. [00:02:55] Speaker 01: Then it says, of course, and is disjunctive, but then goes on to apply an implied distribution theory to say that the word and would then apply to each of the three things in the list that followed. [00:03:06] Speaker 01: I didn't see any argument in your brief that tried to apply this implied distribution theory to this statute. [00:03:14] Speaker 00: Yes, I think the structures are different. [00:03:17] Speaker 00: Where they are similar is the reasoning. [00:03:19] Speaker 00: Again, I think the situation is similar where when you have a statute that grammatically speaking can be read two different ways, that's when courts need to look beyond the meaning of the word and to the words that surround and. [00:03:37] Speaker 00: in deciding what is the more reasonable interpretation. [00:03:40] Speaker 01: Is Pulsifer the only case that has taken that approach with the word as common as and? [00:03:47] Speaker 01: I mean, can you point to other case law where courts have said, well, and, of course, doesn't mean and, it means or? [00:03:52] Speaker 00: I think in Alaska versus Ling, there the ninth circuit read and to mean or. [00:04:00] Speaker 00: It only made more sense that [00:04:02] Speaker 00: It was destructive. [00:04:04] Speaker 01: So if and means or in 1326 Are there are there any aliens who would be? [00:04:11] Speaker 01: Unable to invoke this exception or a defense because it seems like it covers everybody you've been removed or you've been denied admission Pretty much everybody would be eligible for this defense, right? [00:04:24] Speaker 00: The vast majority of people would not be eligible for this defense. [00:04:27] Speaker 00: I [00:04:27] Speaker 00: Why not? [00:04:27] Speaker 00: If and means or, right, and it applies to someone who's either previously been denied admission or somebody who's been removed, they still have to remain out of the country for the requisite advanced consent time period. [00:04:39] Speaker 00: That could be five, 10, even 20 years. [00:04:41] Speaker 00: Some people, it's life, right, if they have an aggravated felony. [00:04:44] Speaker 00: So it's not opening the door to everyone making use of this exception. [00:04:49] Speaker 00: It's very rare to have someone that fits this description. [00:04:52] Speaker 00: Most people return and are being prosecuted under 1326 [00:04:57] Speaker 00: repeatedly and have not waited out the advanced consent time period. [00:05:01] Speaker 00: And again, even if you have some of those people, they are not immune from prosecution. [00:05:07] Speaker 00: They will just simply be prosecuted under the misdemeanor. [00:05:11] Speaker 03: If we were to view this as conjunctive, what's your position on whether Mr. Campos has actually been denied admission or removed? [00:05:24] Speaker 03: In other words, I think you were looking at 2011, 2022 were instances of denied admission. [00:05:34] Speaker 00: Sorry, can you rephrase the question? [00:05:37] Speaker 03: As I understand the record, he was admitted in 1990 when he obtained LPR status, and then there was instances in 2011 and 2022. [00:05:45] Speaker 03: Was he denied admission in those instances? [00:05:51] Speaker 00: No, I don't believe so. [00:05:52] Speaker 00: I believe ultimately after his criminal conviction, he was placed in removal proceedings before an immigration judge and removed. [00:06:04] Speaker 00: Turning back to Pulsifer briefly, it says that and is versatile and it's essential to look to the words surrounding and where you have a statute that can, grammatically speaking, be read multiple ways. [00:06:20] Speaker 00: And here, it's unreasonable to read and to give an extra defense to someone who has violated immigration laws twice and not once. [00:06:29] Speaker 00: Because in the situation where both of those things have to happen, [00:06:32] Speaker 00: We're giving this exception to somebody who, for instance, walks up to the border, pre-IRA was excluded, now is denied admission, subsequent to being told, no, you can't come in, comes in and is later arrested or somehow on notice of immigration authorities, placed in a removal proceeding and removed. [00:06:56] Speaker 00: versus giving this exception to somebody who has only ever had one of those things happen. [00:07:01] Speaker 02: I'm troubled by one other thing. [00:07:04] Speaker 02: It seems like you're asking us to construe a civil statute as modifying a criminal statute. [00:07:12] Speaker 02: Your response to that? [00:07:14] Speaker 00: The INA was drafted to unify all of the criminal and civil immigration rules and laws. [00:07:22] Speaker 02: From your perspective, that's not a big deal because that's what the INA did anyway. [00:07:27] Speaker 00: well i think this thirteen twenty six the criminal statute specifically directs us to look to the other immigration laws with again the language under this chapter but would you agree that normally would be unusual for a statute with only civil consequences to modify a criminal statute normally but i think immigration laws unique in that way uh... i think the immigration criminal statutes and immigration simply know there's a lot of [00:07:57] Speaker 00: There's a lot of crossover between the two. [00:08:00] Speaker 00: So I think it's specific to immigration law. [00:08:02] Speaker 02: I'll save the balance of your time. [00:08:03] Speaker 00: Thank you. [00:08:07] Speaker 02: Very well. [00:08:07] Speaker 02: So we're going to hear now from Mr. Zip. [00:08:10] Speaker 04: Yes. [00:08:11] Speaker 04: May it please the court, Daniel Zip, on behalf of the United States. [00:08:14] Speaker 04: Your Honor, the plain language of 1326A to B is conjunctive. [00:08:19] Speaker 04: It applies only to defendants who have been denied admission and removed. [00:08:23] Speaker 04: as the Supreme Court held in Pulsiver the common ordinary understanding of the word and is and. [00:08:29] Speaker 04: It's conjunctive and it joins. [00:08:31] Speaker 04: The district court in this case properly gave and that meaning and denied the motion for judgment of acquittal. [00:08:37] Speaker 04: There's nothing in the context of the statute that would support rewriting it to mean to say or instead of and. [00:08:44] Speaker 04: In fact, the overall context of the statute, just in the same subsection, Congress wrote denied admission or removed when listing the requirements for prosecution. [00:08:55] Speaker 02: I have this question. [00:08:56] Speaker 02: The statute seems to protect people who are both removed and denied admission, and yet it punishes those who only meet one of those criteria. [00:09:06] Speaker 02: Isn't that kind of an absurd result? [00:09:09] Speaker 04: It it's not an absurd result your honor I agree that the statute is in artful and it's hard to understand exactly what the purpose of that sort of defense was and why they drafted it that way but what this court made clear in Lopez and in Lucerne is in order to rewrite a statute under the absurdity doctrine is an extremely high bar to meet it has to be not [00:09:33] Speaker 04: sort of deciding what Congress meant or that there would be a better way of writing it, it has to be quite impossible that Congress meant what it said and so absurd that it would shock the general moral and common sense. [00:09:47] Speaker 04: Here are the examples of certain aliens being eligible, others not, based on sort of complex interplay between when they were deported or removed and when they were turned away at the border. [00:09:58] Speaker 04: It simply doesn't rise to that level that would allow this court to rewrite this. [00:10:01] Speaker 02: As you heard, your opposing counsel makes reference to Pulsifer. [00:10:05] Speaker 02: What's the government's response to her argument? [00:10:10] Speaker 04: I think our primary response, as Your Honor noted, is that the main holding in Pulsifer was that and means and, and that that holding should apply here, too. [00:10:19] Speaker 04: The idea in Pulsifer that there was a way of reading that would have rendered a section of the statute superfluous, that doesn't exist in the same way here. [00:10:31] Speaker 04: There's nothing that reading the word and here would render superfluous in the statute that would support it in the same way that it did. [00:10:39] Speaker 02: So from your perspective, the Supreme Court's further discussion is just mental gargling and all that counts is that and means and. [00:10:47] Speaker 02: Is that basically where you come down? [00:10:50] Speaker 04: Not exactly, Your Honor. [00:10:51] Speaker 04: I think the court made clear that and means and, and you have to look at the overall context of the statute to determine, to sort of confirm that fact. [00:11:00] Speaker 04: Here, in that statute, there was a number of different candidates of statutory interpretation that cut both ways, and obviously divided circuits across the country as to how to interpret the word and. [00:11:14] Speaker 04: This statute is, there's very little going on here that would, [00:11:19] Speaker 04: would support sort of reading and to mean or. [00:11:23] Speaker 04: You have the overall context, as I mentioned, where the court has used or in the very same subsection. [00:11:30] Speaker 04: In Palomar, Santiago, the Supreme Court made clear that and in 1326D is also conjunctive. [00:11:37] Speaker 04: But beyond that, there's very little here that would support rewriting the statute when there was canons like that in Pulsifer. [00:11:45] Speaker 03: You said it's hard to understand the purpose for this provision. [00:11:48] Speaker 03: That was my very first question to your opposing counsel. [00:11:51] Speaker 03: Would you take a shot at helping us understand the purpose of this provision? [00:11:55] Speaker 04: Sure, as best I can understand it. [00:11:56] Speaker 04: So the 1182 is sort of a civil statute for acquiring visas. [00:12:03] Speaker 04: anyone who comes to the country has to get some sort of permission to come in, whether it's a visa or border crossing card or just arriving at the port and showing your passport. [00:12:11] Speaker 04: What 1182 does is add a second layer for people who have been removed from the country. [00:12:17] Speaker 04: For them to come in legally, they have to, step one, apply to the attorney general for permission to apply, and then step two, actually apply for admission. [00:12:26] Speaker 04: So as I read the statute, this would apply to people who have been removed, [00:12:31] Speaker 04: who then either have acquired that first step permission to reapply or are no longer required to go to that first step because 5, 10, or 20 years have passed. [00:12:43] Speaker 04: And then they come to the port of entry and apply for entry. [00:12:47] Speaker 04: And in that situation, someone conceivably could be guilty of 1326 for just coming to the port and attempting to reenter. [00:12:55] Speaker 04: But if they had gone through that first step, then they wouldn't be guilty in that situation. [00:13:00] Speaker 04: That's my best understanding, although it's admittedly not clear. [00:13:08] Speaker 04: So at the end of the day, Your Honor, there's really not that much in the statute that would support going beyond the plain language. [00:13:15] Speaker 04: And this is one of the cases, as the court held in Lopez, that sometimes you begin with a statutory text and end there if the statute's language is clear. [00:13:24] Speaker 04: Here, the statute clearly says denied admission and removed. [00:13:29] Speaker 04: And Mr. Campos was only removed, and the district court properly denied his statute. [00:13:33] Speaker 02: And he really can't attack the earlier removal order at this point, right? [00:13:38] Speaker 04: No. [00:13:38] Speaker 04: On the 1326D, that's plainly foreclosed by Palomar Santiago. [00:13:43] Speaker 04: He was advised multiple times of his right to appeal. [00:13:46] Speaker 04: After the order was entered, the court asked, do you accept that decision as final or do you want to appeal? [00:13:51] Speaker 04: And he said, I'll take that as final. [00:13:54] Speaker 04: That sort of ends the 1326D. [00:13:56] Speaker 04: And he also hasn't shown that it was plausible that he would have received relief, both because of the nature of his conviction, which, as we now know, was an aggravated felony under Draper. [00:14:13] Speaker 01: Gutierrez Alba, which interpreted a prior version of this statute. [00:14:19] Speaker 01: Why should we think when Congress amended the statute that they had Gutierrez Alba in mind or that there was a consensus among the courts as to what the prior statute meant? [00:14:29] Speaker 04: I don't think that's our position. [00:14:31] Speaker 04: Gutierrez-Alba, essentially the defense is arguing that we should read the current statute in the disjunctive because it would have been impossible to imagine that the old statute would have been conjunctive. [00:14:45] Speaker 04: And our response to that is, one, no, it's not, because it would have been possible to be both removed or both deported and excluded at different times. [00:14:57] Speaker 04: And two, even under that old language, in Gutierrez Alba, this court held that that and is conjunctive. [00:15:03] Speaker 04: So that earlier version simply doesn't support the idea that the [00:15:08] Speaker 04: modern version must be read in the disjunctive. [00:15:11] Speaker 01: So if I understand your response, the government is not arguing that we should interpret the current version of the statute based on the prior version, even with the case out there saying and meant and. [00:15:23] Speaker 04: Yes, that's correct. [00:15:24] Speaker 04: It undercuts the defense argument that that somehow in context means that we should read the current one disjunctive. [00:15:34] Speaker 01: So I know we've touched on this a few times, but your opposing counsel was arguing that this seems illogical because somebody with more wrongful conduct would be protected if and means and, and somebody with lesser conduct would not be protected. [00:15:52] Speaker 01: I've been running in my mind how many different ways this could apply. [00:15:55] Speaker 01: There's so many different variations of how people enter the country or tried to enter the country or removed from the country. [00:16:02] Speaker 01: Are you agreeing with the defense that that's correct, that the statute makes it more difficult for people with less wrongful conduct to receive the benefit? [00:16:14] Speaker 04: No, Your Honor. [00:16:14] Speaker 04: I think there are rational reasons why Congress would have set it up this way. [00:16:21] Speaker 04: One of them would be a defendant in this situation who has been removed from the country that Congress would want to sort of reward and attempt to at least try to work within the immigration system to come back, even if he was then denied admission, that that's better than someone who is removed once and has never denied admission. [00:16:44] Speaker 02: uh... slightly different than i understood to my question i thought what you said was it may seem a little absurd but the absurdity standard is so high that it's not met here that's at that what you're saying what you're saying the judge the baby doesn't seem to be the same to me [00:17:05] Speaker 04: I was trying to answer your question. [00:17:07] Speaker 04: Ultimately, our fundamental point is it doesn't matter whether it slightly benefits people who are more culpable or less culpable, because under the absurdity doctrine, it's not a question of whether they could have done it better or whether this was a wise way to write the statute. [00:17:22] Speaker 04: It has to be so absurd to shock the conscience. [00:17:25] Speaker 01: It has to be irrational. [00:17:26] Speaker 01: Irrational, right. [00:17:27] Speaker 01: So you made an interesting point that I hadn't thought of. [00:17:31] Speaker 01: Being denied admission is not necessarily culpable. [00:17:35] Speaker 01: I mean, you attempted to enter the country legally, you requested permission, were denied. [00:17:39] Speaker 01: But then the culpability comes in if you enter the country in any event, come in otherwise. [00:17:44] Speaker 04: That's correct. [00:17:45] Speaker 04: In addition, the Congress could have wanted to offer relief [00:17:49] Speaker 04: to deny relief to people like Mr. Campos who have only been removed, which means they would have been admitted at some earlier point and would have lost that status, which would normally require some sort of criminal conviction or something aggravated. [00:18:05] Speaker 04: So there are reasons why Congress would have written it both ways. [00:18:09] Speaker 04: But again, at the end of the day, under the absurdity canon, this court can only rewrite and to mean or if it is quite impossible that Congress meant what it said. [00:18:20] Speaker 02: And that's not true. [00:18:21] Speaker 02: Your time is up. [00:18:21] Speaker 02: Let me ask my colleagues. [00:18:22] Speaker 02: Do either have additional questions? [00:18:24] Speaker 02: I think not. [00:18:25] Speaker 02: Thank you, Mr. Zip. [00:18:27] Speaker 02: So please, you've got some time left, Ms. [00:18:32] Speaker 02: Fentland. [00:18:33] Speaker 00: Thank you. [00:18:36] Speaker 00: With, I just want to begin by addressing the absurdity doctrine and I want to just make it clear that this court doesn't need to find and is disjunctive under that doctrine. [00:18:47] Speaker 00: It doesn't need to rise to the level of absurdity because of Pulsifer. [00:18:52] Speaker 00: Simply under Pulsifer, if this court finds that Mr. Campos's reading of the statute where and is disjunctive is more reasonable and makes more sense given the consequences we've talked about. [00:19:03] Speaker 00: that that's enough, it doesn't need to rise to an absurdity level. [00:19:07] Speaker 00: Again, here it's unreasonable to read and any other way because again, it gives an extra defense to someone who has violated immigration laws twice and not simply once. [00:19:20] Speaker 00: And then I also wanna briefly address the government mentioned the kind of common understanding. [00:19:26] Speaker 00: I think Pulsifer made it very clear that with a word like and, [00:19:31] Speaker 00: that doesn't move the needle. [00:19:34] Speaker 00: It underscores that the presumption of consistent usage and the meaningful variation canon both relied on the government can only apply to words with some heft and distinctiveness and that's not and. [00:19:50] Speaker 00: I also wanted to address [00:19:53] Speaker 00: Gutierrez Alba briefly. [00:19:55] Speaker 00: I would argue the government stated that that was a holding. [00:19:58] Speaker 00: That was not a holding in Gutierrez Alba. [00:20:00] Speaker 00: That was merely dicta. [00:20:03] Speaker 00: Section 1326 A to B wasn't even at issue with the court below the Ninth Circuit. [00:20:13] Speaker 00: And then with regard, and I think I also just want to mention a hypothetical from Pulsifer that I think is helpful for this analysis. [00:20:21] Speaker 00: In Pulsifer, [00:20:22] Speaker 00: The Supreme Court talks about Article 3 and gives an example where, you know, all the different situations where federal jurisdiction arises. [00:20:32] Speaker 00: And it explains, you know, the sentence would be, federal jurisdiction arises under, one, the Constitution, the laws of the United States, two, and three treaties. [00:20:42] Speaker 00: And there's an and in there. [00:20:43] Speaker 00: But the Supreme Court said this doesn't limit jurisdiction to a case that has all three. [00:20:48] Speaker 00: It doesn't make sense, right? [00:20:49] Speaker 00: Okay. [00:20:50] Speaker 00: It's more reasonable to interpret it to any of the three. [00:20:53] Speaker 02: Your time is up. [00:20:53] Speaker 02: Let me ask, do my colleagues have additional questions? [00:20:57] Speaker 02: We thankful. [00:20:57] Speaker 00: Thank you. [00:20:58] Speaker 02: There's a free argument in this case, the case of United States versus Compost is submitted.