[00:00:05] Speaker 03:
Good morning, your honors.

[00:00:08] Speaker 03:
May it please the court?

[00:00:10] Speaker 03:
My name is Kelly Volcar.

[00:00:11] Speaker 03:
I'm here on behalf of the United States.

[00:00:13] Speaker 03:
I would like to try to reserve two minutes for rebuttal.

[00:00:16] Speaker 03:
OK, please watch your clock.

[00:00:17] Speaker 03:
I will, your honor.

[00:00:19] Speaker 03:
This court should reverse and remand the district court's granting of the motion to dismiss the indictment because the court impermissibly relieved the defendant from satisfying his burden to meet the first two prongs of Section 1326D after finding he had satisfied the third prong.

[00:00:34] Speaker 03:
Under Palomar Santiago and this court's recent ruling in Portillo Gonzalez, all three prongs are mandatory independent requirements.

[00:00:42] Speaker 04:
Council, let me ask you this.

[00:00:44] Speaker 04:
What's left of Mendoza-Lopez then in the government's view?

[00:00:47] Speaker 04:
Can you give me some examples of circumstances where the court can deem the exhaustion requirements effectively satisfied?

[00:00:56] Speaker 03:
Yes, your honor, I believe in the government's brief we discussed, for example, if the non citizen were not provided the information that he or she has the right to appeal at all, one can imagine a scenario where that would be they may not even know that that is a possibility.

[00:01:13] Speaker 03:
And so that is an example of not knowing that the relief is available, such that even though it is both a substantive due process, it would likely also satisfy the first two prongs.

[00:01:25] Speaker 01:
However, isn't that what happened here, that the IJ misstated the availability of appellate review?

[00:01:32] Speaker 03:
No, Your Honor.

[00:01:33] Speaker 03:
Here, the IJ discussed the possibility of voluntary departure as a type of relief for Cardiel Ruiz and had a discussion about whether or not he would qualify for that.

[00:01:45] Speaker 03:
However, at the same time, in multiple different points during the immigration proceeding, the immigration judge repeatedly stated that Cardiel Ruiz had the opportunity to appeal.

[00:01:54] Speaker 04:
So you're saying that one situation under which we can deem the requirements effectively satisfied is if the

[00:02:02] Speaker 04:
A judge says, well, you don't have a right to appeal.

[00:02:05] Speaker 04:
What about a misadvisement as to the scope of appeal?

[00:02:10] Speaker 04:
You were told to appeal, but the court misadvised them in some fashion.

[00:02:15] Speaker 04:
Would that situation be covered?

[00:02:17] Speaker 03:
I do not think so, Your Honor.

[00:02:18] Speaker 03:
I do think that that's what Portillo Gonzalez squarely foreclosed in the wake of Palomar Santiago, that line of cases.

[00:02:26] Speaker 03:
I think Portillo Gonzalez talked about if you're in an immigration proceeding, but we're simply talking about whether or not the immigration judge substantively described a type of relief correctly.

[00:02:36] Speaker 04:
then we are in the land where we want the non-citizens to pursue all of their rights that they may have, which include... This isn't a situation in this case where the judge substantively misdescribed something or was incorrect in his substantive ruling, right?

[00:02:54] Speaker 04:
This is a refusal to rule at all based on a misunderstanding whether he sought relief or not.

[00:03:00] Speaker 03:
Yes, Your Honor.

[00:03:01] Speaker 04:
Isn't that a distinction that would be recognized under Mendoza-Lopez?

[00:03:05] Speaker 03:
I do not believe so, Your Honor, in part because I think here the IJ talked about types of relief and voluntary departure was one of them.

[00:03:12] Speaker 03:
Another was cancellation of removal, and that was what is a little bit confused in the immigration judge's proceedings with cardio release.

[00:03:20] Speaker 03:
However, at multiple different times, the immigration judge offered more time.

[00:03:23] Speaker 03:
if Cardial Ruiz wanted to speak with nonprofit immigration lawyers who might be able to better describe what relief he might qualify for?

[00:03:31] Speaker 02:
I don't know.

[00:03:31] Speaker 02:
It was kind of inexplicable what the judge did here because it seemed that Cardial Ruiz did say that, yes, I want voluntary departure.

[00:03:42] Speaker 02:
And then the IJ misunderstood him and then said, well, since you didn't ask for

[00:03:50] Speaker 02:
voluntary departure, I won't make a decision about it.

[00:03:54] Speaker 02:
I mean, I think the IJ completely screwed up here.

[00:03:58] Speaker 03:
Your Honor, respectfully, I think that the IJ was trying to give Cardial Ruiz different options and paths for relief.

[00:04:06] Speaker 02:
He can't just not rule.

[00:04:08] Speaker 02:
He should have tried to understand what Cardial Ruiz was

[00:04:12] Speaker 02:
asking for.

[00:04:13] Speaker 02:
I think that's the second major problem.

[00:04:16] Speaker 02:
I think the first major problem is that this was another one of those group hearings, and I've seen numbers of those, and there's always some miscommunication, misadvice, no attention to

[00:04:32] Speaker 02:
the plight of each individual and the circumstances surrounding each individual.

[00:04:38] Speaker 02:
And that's always bound to create errors and misunderstandings.

[00:04:43] Speaker 03:
And your honor, this started as a group proceeding.

[00:04:46] Speaker 03:
However, the second half of it where he was discussing Cardio Ruiz, he was speaking, the judge was speaking one on one with Cardio Ruiz at that time.

[00:04:55] Speaker 03:
He talked about the fact that his wife was a U.S.

[00:04:57] Speaker 03:
citizen and perhaps he would want some time in order to seek getting a green card in that manner.

[00:05:02] Speaker 03:
And he multiple times said, if you'd like a couple of weeks to talk it over with an attorney with the Florence Project.

[00:05:08] Speaker 03:
And that was when Cardial-Ruiz said, I'd rather go to Mexico.

[00:05:12] Speaker 03:
And then he offered again, would you like some time to determine if you can file for cancellation or removal or anything?

[00:05:18] Speaker 03:
Or would you like a deportation order?

[00:05:20] Speaker 03:
And Cardial-Ruiz said, I'll take the deportation order.

[00:05:23] Speaker 03:
So I do think that the facts of this case put it squarely into that category where Palomar Santiago, the Supreme Court,

[00:05:30] Speaker 03:
wants non-citizens to avail themselves of all of the court processes they have to determine if the immigration judge got it wrong in those proceedings, but here he just wanted to take the deportation order and chose not to appeal it.

[00:05:47] Speaker 01:
Would you concede that in Ross, Ross applies to situations where the administrative remedies are so confusing that a person can't actually make use of those remedies?

[00:05:59] Speaker 01:
And why wouldn't that apply here?

[00:06:01] Speaker 01:
If the immigration judge says, I'm not making a decision about voluntary departure, how would Mr. Cardial Ruiz understand that he was supposed to appeal a non-decision?

[00:06:10] Speaker 01:
How would he even know that there was even any available appellate review of a non-decision?

[00:06:16] Speaker 03:
Your Honor, that's where I would point this court to the Portillo-Gonzalez decision, which had a nearly identical situation, where the immigration judge may have misinformed the non-citizen of the potential for voluntary departure.

[00:06:31] Speaker 03:
And it analyzed, in the last few pages of the decision, exactly what Your Honor just asked, whether or not the Ross three exceptions would apply in this situation, such that the remedy of appeal or judicial review was unavailable.

[00:06:45] Speaker 03:
And this court found that this was not, that third category was more along the lines of threats or intimidation or hide and seek.

[00:06:55] Speaker 03:
And here the IJ correctly informed Portillo-Gonzalez of his right to appeal and Portillo-Gonzalez said that he would not like to appeal it.

[00:07:03] Speaker 03:
And that is nearly indistinguishable from the facts we have.

[00:07:07] Speaker 01:
But there are two different misstatements here, right?

[00:07:09] Speaker 01:
One is you're ineligible for voluntary departure, which turned out not to be accurate.

[00:07:13] Speaker 01:
But then the second one is I'm not making a decision on voluntary departure.

[00:07:18] Speaker 01:
So even though I might agree with you that the initial you're not eligible for voluntary departure is similar to Portillo-Gonzalez, the second issue of you don't have to appeal because I'm not making a decision is different, right?

[00:07:34] Speaker 03:
Perhaps, Your Honor, although the latter statement comes after Cardial Ruiz already said, I'll take the deportation order.

[00:07:42] Speaker 03:
And I think the main thing here is whether or not the misadvisal of the potential eligibility for voluntary departure is of the type that it could infect the entire proceeding, because what the immigration judge was offering for Cardial Ruiz to appeal was the deportation order.

[00:08:03] Speaker 03:
When Cardiel Ruiz said, I'll take the deportation order, he still had the opportunity to appeal that to see if there were any substantive errors in other aspects as well.

[00:08:12] Speaker 03:
The judge put him on notice of the fact that voluntary departure was an option and that cancellation of removal might be an option.

[00:08:21] Speaker 03:
So this is not in that line of cases where the non-citizen had no idea that such relief was even possible.

[00:08:28] Speaker 01:
But do you agree that Ross would apply where the administrative remedies are so confusing that a person can't make use of them?

[00:08:35] Speaker 03:
Your Honor, I think both Palomar Santiago and Portillo Gonzalez left open the possibility of the three exceptions in Ross applying.

[00:08:45] Speaker 03:
I don't think that it's been decided yet.

[00:08:47] Speaker 03:
We would argue that if this court were to follow, it should follow Portillo Gonzalez in the conclusion as well, which is even if you apply the Ross exceptions, it is not met here.

[00:08:58] Speaker 03:
And if the court has no further questions at this time, I'd like to reserve some time for rebuttal.

[00:09:04] Speaker 03:
OK.

[00:09:27] Speaker 00:
Good morning and may it please the court.

[00:09:28] Speaker 00:
My name is Stephen Koeninger from the Office of the Federal Public Defender.

[00:09:31] Speaker 00:
I represent Martin Cardial Ruiz, who asked this court to affirm the district court's order dismissing the indictment in this case.

[00:09:38] Speaker 00:
Your honors, in Mendoza Lopez, the Supreme Court announced a constitutional standard for assessing the validity of a defendant's waiver of the right to appeal during his immigration proceedings underlying the illegal reentry prosecution.

[00:09:51] Speaker 00:
And under that standard, the waiver

[00:09:53] Speaker 00:
is only constitutionally valid if it is both considered and intelligent.

[00:09:57] Speaker 00:
Mendoza-Lopez continued to hold that where that waiver is not considered and intelligent, that waiver renders direct review, and that includes his administrative appeal, unavailable, and it also completely deprives the non-citizen of judicial review.

[00:10:13] Speaker 00:
These holdings from Mendoza apply directly to the requirements of D1 and D2.

[00:10:18] Speaker 00:
That stats, 1326, D1 and D2, was

[00:10:23] Speaker 04:
Enacted in reaction to Mendoza Lopez and Congress was legislating against that background and so well, let me ask you this council because there's got to be something Left right even in the wake of Palomar Santiago.

[00:10:35] Speaker 04:
I guess I'm struggling to figure out whether the facts of this case.

[00:10:39] Speaker 04:
is such that you can take advantage of whatever narrow, and it's very, very, very narrow to the extent that there's anything left where you don't actually exhaust all of the requirements under 1326D.

[00:10:55] Speaker 04:
In this situation, is there any reason why the defendant couldn't have filed an appeal from the IJ's refusal to rule?

[00:11:03] Speaker 04:
It's not uncommon, as I'm sure you know, where judges just simply mishear something or misunderstand whether somebody asked for something or not, especially in a fast-moving record.

[00:11:15] Speaker 04:
So couldn't he have filed an appeal and say, look, I did ask for voluntary departure,

[00:11:19] Speaker 04:
The IJ misunderstood that, construed it as my not asking for relief and didn't rule on that.

[00:11:26] Speaker 04:
Couldn't that have been correctable on appeal as well as the other substantive errors and rulings?

[00:11:31] Speaker 00:
But Judge, when Mendoza-Lopez answers this question, and it tells us that the focus here is whether the appeal waiver is constitutionally valid.

[00:11:41] Speaker 00:
And in that case, the dissent, if you look to the dissent that Justice Scalia wrote in Mendoza-Lopez, he said, well, theoretically, the defendants could have appealed.

[00:11:48] Speaker 00:
the errors that they're complaining of.

[00:11:50] Speaker 00:
But what the Supreme Court tells us is that the fundamental question with respect to availability and deprivation of judicial review

[00:11:58] Speaker 00:
is the constitutional validity of the appeal waiver.

[00:12:01] Speaker 00:
And so to answer your question, Judge, when that is what is certainly left here in the wake of Palomar Santiago, Palomar Santiago did not alter, it left intact those holdings from Mendoza Lopez.

[00:12:12] Speaker 00:
And Mr. Cardial's appeal waiver in this case was constitutionally invalid for reasons in addition to the IJ's failure to advise him about voluntary departure.

[00:12:21] Speaker 00:
This goes, I think, to some of the questions that the panel had asked already.

[00:12:24] Speaker 02:
But the implication, he did say to him, you're not eligible for voluntary departure because of your two convictions, right?

[00:12:32] Speaker 00:
He did not say that he was not ineligible.

[00:12:35] Speaker 02:
Well, at one point he said, I don't think you would be eligible for voluntary departure.

[00:12:39] Speaker 00:
He was not speaking as to eligibility, Judge Wardlaw, with the IJs, had a colloquy with the government council, and then said, well, I'm not going to give you voluntary departure.

[00:12:48] Speaker 00:
I'm not going to grant voluntary departure.

[00:12:50] Speaker 00:
It's not a ruling that he was ineligible.

[00:12:52] Speaker 00:
It's that I'm not going to grant it.

[00:12:53] Speaker 00:
It's the type of statement that this court indicated in Melendez Castro is affirmatively discouraging.

[00:12:59] Speaker 02:
He said, I'll deny voluntary departure if I find you have a bad criminal record, bad immigration record.

[00:13:07] Speaker 02:
He says that up front.

[00:13:09] Speaker 02:
And then when he's addressing him in particular, you probably aren't going to get voluntary departure.

[00:13:18] Speaker 02:
if you've got two convictions, that was wrong, correct?

[00:13:21] Speaker 02:
Because he assumed they were controlled substance convictions when they were actually misdemeanor DUIs.

[00:13:29] Speaker 00:
It's wrong as to, the judge is making, my reading of that, Judge Ward-Law, is that's an assertion of a discretionary, of the judge's ultimate decision.

[00:13:38] Speaker 00:
I don't see that as an assertion necessarily that he's ineligible, but if that's the way the court reads it, yeah, that's a problem as well.

[00:13:46] Speaker 00:
But what I wanted to draw the court's attention to is there are multiple reasons that the advisal in this case, that the appeal waiver in this case is constitutionally invalid and therefore satisfies D1 and D2.

[00:13:57] Speaker 00:
Perhaps the most problematic is something that you alluded to, Judge, when I believe when you asked about the scope, whether the immigration judge made a misleading statement about the scope of appeal.

[00:14:07] Speaker 00:
What's particularly problematic is that the I.J.

[00:14:10] Speaker 00:
told Mr. Cardial during the group proceedings that his right to appeal applied to the decision of the court.

[00:14:17] Speaker 00:
That's an excerpt of record 89.

[00:14:19] Speaker 00:
When the I.J.

[00:14:20] Speaker 00:
solicited an appeal waiver from him, he said, do you want to appeal my decision?

[00:14:25] Speaker 00:
That's an excerpt of Record 97.

[00:14:27] Speaker 00:
But just moments earlier, the immigration judge, after telling him he wouldn't grant him voluntary departure, the immigration says, I'm not, and I'm quoting, sorry, since you didn't really ask for voluntary departure, I won't make any decision about granting or denying it.

[00:14:43] Speaker 02:
Because- I know this is, I'm asking you to speculate.

[00:14:45] Speaker 02:
But that's not- Yeah, just a second, Judge Coe.

[00:14:48] Speaker 02:
I'm asking you to speculate.

[00:14:49] Speaker 02:
But why would the IJ want to refrain from making a decision?

[00:14:55] Speaker 00:
I don't know, Your Honor.

[00:14:56] Speaker 00:
And in fact, the district court itself found that this statement was perplexing.

[00:15:00] Speaker 00:
I find it exceedingly confusing.

[00:15:02] Speaker 00:
And what I'd like to point out for the court is if the district court, if the, I can't understand it, if the panel is confused, imagine the effect on Mr. Cardial, who is uncounseled, which is another reason that his, another factor favoring the finding that his appeal waiver was invalid, 20 years old and in immigration proceedings for the first time.

[00:15:23] Speaker 00:
The fact of the IJ's statements regarding I'm not making a decision is to tell Mr. Cardial that the issue of voluntary departure was not appealable.

[00:15:33] Speaker 00:
There is no decision for you to appeal.

[00:15:35] Speaker 00:
And so the effect of that under those circumstances, this court cannot say that the appeal waiver was considered an intelligent, that it was constitutionally valid.

[00:15:45] Speaker 00:
And so under Mendoza-Lopez, when there is an unconstitutional appeal waiver, an appeal waiver that is not constitutionally valid,

[00:15:53] Speaker 00:
It satisfies D1 because it renders an administrative appeal unavailable and it satisfies D2 because it deprives the non-citizen of judicial review.

[00:16:04] Speaker 00:
Again, I'd like to also point out that in the context of establishing an invalid, whether the appeal waiver is valid, it's the government that bears the burden of demonstrating this by clear and convincing evidence.

[00:16:15] Speaker 00:
So the facts that we've just talked about now

[00:16:18] Speaker 00:
on those facts alone, the government can't meet this burden.

[00:16:21] Speaker 04:
But there are— Well, Counsel, if we construe—granted, it's not the clearest advisement of the right to appeal, but the—I.J.

[00:16:28] Speaker 04:
did say you have a right to appeal my decision—if we construe that advisement as including the right to appeal the refusal to rule on voluntary departure, then you would lose.

[00:16:41] Speaker 00:
I don't think so, Your Honor.

[00:16:42] Speaker 00:
If you construe it, you still have to ask the fundamental question about whether the defendant's waiver of the right to appeal was considered an intelligent.

[00:16:51] Speaker 00:
And so the fact that he theoretically could have appealed, again, if you look at Mendoza Lopez,

[00:16:56] Speaker 04:
Well, but it's inextricably intertwined, to use a familiar legal phrase, right?

[00:17:04] Speaker 04:
If the IJ is saying, well, you can go ahead and appeal.

[00:17:08] Speaker 04:
I wouldn't grant you voluntary departure under these circumstances, but OK, I don't think you asked for it, so I'm not going to make a ruling one way or another, and then goes on to handle the rest of the proceedings.

[00:17:18] Speaker 04:
OK, now you can go ahead and go and appeal.

[00:17:20] Speaker 04:
That's why I asked you, could you have appealed

[00:17:23] Speaker 04:
the IJ's right to refuse to rule on a voluntary departure.

[00:17:29] Speaker 04:
I just don't see why his appellate rights wouldn't include that.

[00:17:32] Speaker 04:
So we construed the advisement as telling the petitioner and now defendant at the time, like, look, if you don't like anything that went on today, go ahead and take it up to a higher court.

[00:17:44] Speaker 04:
I don't think that's the... Under those circumstances, the petitioner has been told that he could appeal whatever went on, including the refusal to rule one way or the other on voluntary departure, right?

[00:17:55] Speaker 00:
If you construe it that way, that goes to the issue about whether the immigration judge properly advised him about the scope of his appeal.

[00:18:02] Speaker 00:
I disagree, obviously, respectfully, that that's what is being stated here when the judge is specifically telling him I'm not making a decision and that the advisable is you can appeal my decision.

[00:18:12] Speaker 00:
and the advisal at the group proceeding was your right to appeal as to my decision, not decisions that weren't made.

[00:18:18] Speaker 00:
But that leaves the question of the immigration judge's failures to properly advise my client about voluntary departure, which Portillo Gonzalez does not foreclose this.

[00:18:28] Speaker 00:
Portillo Gonzalez is addressing a particular type of error in which the immigration judge makes an affirmative misstatement about the law in a ruling, in a statement, in a decision.

[00:18:39] Speaker 00:
It's not addressing heirs of omission.

[00:18:42] Speaker 00:
And this was important in the context of Palomar Santiago.

[00:18:46] Speaker 00:
If the court looks at the briefing in Palomar Santiago, it's clear that the issue of whether an advisable about discretionary relief is not at issue there.

[00:18:56] Speaker 00:
And the court in Palomar Santiago is not even addressing the question of whether the appeal waiver was invalid.

[00:19:02] Speaker 00:
The relevant portion in Palomar Santiago

[00:19:06] Speaker 00:
is addressing the argument under Ross that as a general matter, immigration proceedings are so opaque that we can't expect non-citizens to know that the judge is wrong in their decision.

[00:19:17] Speaker 00:
In Palomar, there is a decision, there's notice to the defendant, to the non-citizen in that context, that there's a decision that might be wrong, that doesn't track to errors of omission like we have here.

[00:19:30] Speaker 00:
where the judge is required to get, constitutionally required to provide information, we don't hold defendants on the same level of notice in those circumstances for something that they're not told.

[00:19:41] Speaker 00:
There's no reason to expect it might be wrong when I'm not told about it.

[00:19:46] Speaker 00:
I see that I'm out of time.

[00:19:47] Speaker 01:
I know.

[00:19:47] Speaker 01:
I think Judge Coe might have had a question.

[00:19:49] Speaker 01:
I haven't been able to ask one question of this lawyer.

[00:19:51] Speaker 01:
May I ask one question?

[00:19:52] Speaker 01:
But it's fine if you want to go ahead.

[00:19:54] Speaker 02:
No, no.

[00:19:54] Speaker 02:
I was going to turn to you, Judge Coe.

[00:19:57] Speaker 02:
So go ahead.

[00:19:59] Speaker 01:
OK.

[00:20:01] Speaker 01:
the

[00:20:02] Speaker 01:
The concern I have about this is that the judge specifically says that he would make a deportation order.

[00:20:09] Speaker 01:
Mr. Cardial Ruiz says he will take the deportation order.

[00:20:13] Speaker 01:
And wouldn't the deportation order that the judge issued, after which he specifically said, you want to appeal my decision to a higher court, sir, and Mr. Cardial Ruiz says, no, Your Honor, wouldn't that be the deportation order?

[00:20:25] Speaker 01:
That would be the subject of the appeal.

[00:20:27] Speaker 01:
And then at that point, Mr. Cardial Ruiz could raise

[00:20:31] Speaker 01:
the voluntary departure eligibility issue.

[00:20:34] Speaker 01:
My concern is that the appeal advisement itself does not appear to be so confusing as to render an administrative appeal unavailable.

[00:20:47] Speaker 01:
And the other representation that was wrong was the ineligibility for voluntary departure is the exact same incorrect representation that was the subject of Portillo-Gonzalez.

[00:20:58] Speaker 01:
So, and if I look at the language of Palomar Santiago, nothing in Ross, however, suggests that the substantive complexity of an affirmative defense can alone render further review and of adverse decision unavailable.

[00:21:11] Speaker 01:
Administrative review of removal orders exists precisely so non-citizens can challenge

[00:21:16] Speaker 01:
the substance of immigration judge's decisions.

[00:21:20] Speaker 01:
The immigration judge's error on the merits does not excuse the non-citizen's failure to comply with the mandatory exhaustion requirement if further administrative review and then judicial review, if necessary, could fix that very error.

[00:21:36] Speaker 01:
And have a response to that idea.

[00:21:39] Speaker 00:
I think number one judge code the air in this case was not simply that the judge told my client that he was ineligible.

[00:21:46] Speaker 00:
He didn't make a ruling on an eligibility.

[00:21:48] Speaker 00:
He failed to tell him what voluntary departure was what the eligibility requirements were as the district court found and as the district court said failed to tell him that he was eligible.

[00:21:58] Speaker 00:
So unlike Portillo, this isn't a substantive error of immigration law, a statement that you are ineligible.

[00:22:05] Speaker 00:
It's a failure to provide the relevant information to this non-citizen so that he could pursue that relief.

[00:22:11] Speaker 00:
And so again, it's the lobby.

[00:22:13] Speaker 01:
And you're saying that could not be appealed.

[00:22:15] Speaker 01:
That is unappealable.

[00:22:17] Speaker 01:
Is that your position, that those IJ errors are unappealable?

[00:22:21] Speaker 00:
No, what I'm saying is that that renders his appeal waiver invalid, just as it did in Mendoza-Lopez.

[00:22:26] Speaker 00:
And as Mendoza-Lopez instructs,

[00:22:28] Speaker 00:
The relevant inquiry is whether or not the non-citizens' appeal waiver was constitutionally valid, because that's the intermediary step here, the intermediate step.

[00:22:37] Speaker 00:
The most important focus in Mendoza-Lopez is the constitutional validity of the appeal waiver.

[00:22:42] Speaker 00:
And so where there is a failure to provide the information, not an affirmative error of law as there was in Portillo-Gonzalez,

[00:22:50] Speaker 00:
but a failure to provide the relevant information, the question becomes, and the question always is, is this a constitutionally valid waiver of appeal?

[00:22:58] Speaker 00:
And when it's not, as it was not here, Mendoza

[00:23:02] Speaker 00:
The holdings of Mendoza direct that that renders, under D1, that renders administrative review unavailable, and it deprives the non-citizen of judicial review.

[00:23:12] Speaker 00:
And Judge Coyou said, isn't it possible that he could have appealed that?

[00:23:16] Speaker 00:
But Mendoza rejected that exact argument from Justice Scalia in his dissent, suggesting that, well,

[00:23:22] Speaker 00:
You say that there was an invalid appeal waiver, but he could have appealed the bases for why the appeal waiver was invalid or the underlying due process violations.

[00:23:30] Speaker 00:
The court rejected that in Mendoza-Lopez itself.

[00:23:38] Speaker 00:
Thank you very much.

[00:23:39] Speaker 00:
And I ask the court to please affirm the district.

[00:23:41] Speaker 02:
Thank you very much, counsel.

[00:23:43] Speaker 02:
Ms.

[00:23:44] Speaker 02:
Boecker?

[00:23:45] Speaker 02:
Boecker?

[00:23:50] Speaker 03:
Thank you, Your Honors.

[00:23:53] Speaker 03:
Judge Coe is exactly right, and that is that there may be instances where satisfying D3 may also satisfy D1 and D2.

[00:24:02] Speaker 03:
We can find some in this court's history, times when the noncitizen was not informed at all about the right to appeal or wasn't given those rights or his or her rights in the proper language such that they could understand.

[00:24:15] Speaker 03:
This is not that case.

[00:24:16] Speaker 03:
This is a case where Cardial Ruiz was told by the immigration judge repeatedly of what his rights were if Cardial Ruiz disagreed with the immigration judge's ruling.

[00:24:27] Speaker 03:
The immigration judge said, I can let you have more time to contemplate these other avenues of relief, which the immigration judge had stated to him, voluntary departure.

[00:24:36] Speaker 03:
and cancellation of removal and then or I can give you a deportation order and Cardial Ruiz stated I'll take the deportation order.

[00:24:45] Speaker 03:
Then the immigration judge said do you want to appeal and Cardial Ruiz said no.

[00:24:50] Speaker 03:
This is an instance that's clearly covered by Portillo Gonzalez and in Palomar Santiago which quotes from Palomar Santiago that if the immigration court judge might be wrong that's exactly why we want non-citizens to take the advantage of the appeal process.

[00:25:05] Speaker 03:
And with that, the United States asked this.

[00:25:07] Speaker 01:
I had one question.

[00:25:08] Speaker 01:
What are we to make of the fact that Mendoza Lopez was applying 1326A, which is just the definition of the crime of illegal reentry, and was issued before 1326D, which have these three

[00:25:23] Speaker 01:
requirements was enacted into law.

[00:25:26] Speaker 03:
Thank you, Your Honor.

[00:25:27] Speaker 03:
The government's position is, as the Supreme Court said in Palomar Santiago, Mendoza-Lopez was the background that led to Congress enacting 1326D.

[00:25:36] Speaker 03:
The title of 1326D, as the Supreme Court noted in Palomar Santiago, says limitation on collateral attack.

[00:25:44] Speaker 03:
Congress reacted to Mendoza-Lopez by stating that non-citizens must

[00:25:48] Speaker 03:
follow each of the three prongs in every case.

[00:25:51] Speaker 03:
And the court has to do a independent analysis of each of those three prongs.

[00:25:56] Speaker 03:
And that is exactly the error that the government asserts the district court made here was simply not walking through each of those three prongs.

[00:26:04] Speaker 02:
And have you waived the argument that his proceedings were fundamentally fair?

[00:26:10] Speaker 02:
Your Honor, we— Assuming that the district court was correct that his proceedings were fundamentally unfair?

[00:26:16] Speaker 03:
The government did not appeal on that ruling, your honor, and in the briefing, we've assumed without conceding, but of course, we did not appeal on that ground.

[00:26:25] Speaker 02:
All right, thank you, counsel.

[00:26:27] Speaker 02:
Thank you.

[00:26:28] Speaker 02:
I think both counseled today for an excellent argument.

[00:26:31] Speaker 02:
US v. Cardial Ruiz is submitted, and the session of the court is adjourned for today.

[00:26:40] Speaker 02:
All rise.

[00:26:47] Speaker 02:
This court for this session stands adjourned.