[00:00:16] Speaker 03:
May I proceed, Your Honors?

[00:00:17] Speaker 03:
Yes, please.

[00:00:18] Speaker 03:
Thank you.

[00:00:19] Speaker 03:
May it please the Court, Council?

[00:00:21] Speaker 03:
I'm Florence Brummer, CJA Council, representing Mr. Martinez-Martinez.

[00:00:26] Speaker 03:
Our issue is very, very narrow.

[00:00:30] Speaker 03:
It is whether the denial of the motion to dismiss the indictment was an error.

[00:00:37] Speaker 03:
The review is de novo.

[00:00:40] Speaker 03:
In August 1992, Mr. Martinez Martinez was a lawful permanent resident.

[00:00:47] Speaker 03:
In October 1997, he was convicted in NYC of grand larceny in the fourth degree.

[00:00:57] Speaker 03:
The government initiated removal proceedings at that time, and in August 31, 1998,

[00:01:05] Speaker 03:
There was a notation that said that the right to appeal was reserved by Defendants' Council.

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The appeal deadline was September 30th, 1998.

[00:01:17] Speaker 03:
The notice of appeal went to the Board of Immigration Appeals shortly thereafter.

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And then there was a withdrawal of that by Defendants' Immigration Attorney shortly thereafter.

[00:01:34] Speaker 04:
and then defend it.

[00:01:35] Speaker 04:
Didn't the defendant concur in that withdrawal?

[00:01:39] Speaker 04:
That's the issue, Your Honor.

[00:01:40] Speaker 03:
Of course.

[00:01:41] Speaker 03:
Yes, absolutely.

[00:01:43] Speaker 03:
Because the entire issue that was briefed before the district court was there was that handwritten note from Mr. Martinez, Martinez, where he says, I wish to withdraw my appeal.

[00:01:54] Speaker 03:
And then this is where it gets funny.

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And I think it's a little bit different than some of the other cases that have been before the court.

[00:02:04] Speaker 04:
Is there any evidence in the record that that handwritten note was not genuine?

[00:02:10] Speaker 04:
There was not.

[00:02:11] Speaker 04:
Why shouldn't that be dispositive?

[00:02:15] Speaker 04:
If the defendant hand wrote a note saying he wanted to voluntarily dismiss the case and then his lawyer followed up with a formal dismissal of the case, then why are we contemplating that that was involuntary?

[00:02:31] Speaker 03:
Sure, because what we have is

[00:02:34] Speaker 03:
an absence of what happened in between.

[00:02:38] Speaker 03:
Was Mr. Martinez Martinez ever informed of what this meant?

[00:02:44] Speaker 03:
Because what happened was, we have the handwritten note, and of course this is a direct appeal, some very limited, it's not a habeas, I'm not getting affidavits, all of that, but he has the handwritten note.

[00:02:57] Speaker 03:
It somehow goes to the immigration officer who then writes something and says,

[00:03:03] Speaker 03:
Hey, he informed me he wants to withdraw this.

[00:03:06] Speaker 03:
But he attached the handwritten letter.

[00:03:08] Speaker 03:
He did attach the, yes, yes.

[00:03:10] Speaker 03:
And then it goes to Mr. Martinez, Martinez's immigration counsel, who then submits it and says, hey, this is what I received, so I'm withdrawing this appeal.

[00:03:25] Speaker 03:
When, and it appears to me that it would have been very easy

[00:03:32] Speaker 03:
for either the appellate council or the immigration council to maybe actually go talk to Mr. Martinez, Martinez, because I think that is very evident from the record that that didn't happen because they state, yeah, I heard this, I got this note, I'm withdrawing this appeal.

[00:03:53] Speaker 03:
Why not go talk to him?

[00:03:55] Speaker 03:
Why not get the way?

[00:03:56] Speaker 03:
Yes, the question.

[00:03:57] Speaker 00:
It's not clear to me that any of this is really ultimately relevant.

[00:04:01] Speaker 00:
And here's the problem that I'm having.

[00:04:04] Speaker 00:
So we've said in via Vincencio that a failure after the immigration hearing to file the notice of appeal doesn't count.

[00:04:19] Speaker 00:
That's just a forfeiture.

[00:04:20] Speaker 00:
And so we don't do a waiver inquiry on that.

[00:04:23] Speaker 00:
You agree with that?

[00:04:24] Speaker 03:
I do agree.

[00:04:24] Speaker 03:
That's what the case is.

[00:04:25] Speaker 00:
I don't understand why the withdrawal of an appeal

[00:04:29] Speaker 00:
isn't on all fours with simply having failed to do, to take the appeal.

[00:04:35] Speaker 00:
And it all occurs after and without, you know, any sort of in court advisals where you might be worried about what the court is saying and, and, and is that a waiver?

[00:04:45] Speaker 00:
Is the court securing a waiver?

[00:04:47] Speaker 00:
This is he and his counsel off doing whatever they want to do and whether they're going to file or whether we're going to withdraw the notice of appeal.

[00:04:55] Speaker 00:
And I don't understand why a failure to file

[00:04:57] Speaker 00:
would be treated differently from a withdrawal.

[00:05:01] Speaker 00:
Can you explain why?

[00:05:01] Speaker 03:
Yes, I can try.

[00:05:03] Speaker 03:
So, I think this is distinguishable from Villa Vincio because in that one, I know the court rejected the contention that declining to file the appeal was tantamount to the waiver.

[00:05:22] Speaker 03:
This is a little bit different.

[00:05:24] Speaker 03:
There was actually a notice of appeal that was filed

[00:05:27] Speaker 03:
And what we have after that, and I think this is, Your Honor, I do disagree respectfully that the difference is this is not a situation where

[00:05:45] Speaker 03:
we are able to determine that counsel actually talked with his client and they had that discussion.

[00:05:52] Speaker 00:
In fact... Why is that relevant?

[00:05:55] Speaker 00:
You could say the same thing about the failure to file the notice of appeal.

[00:05:59] Speaker 00:
How do we know they didn't have a conversation?

[00:06:01] Speaker 00:
Under V of Vincencio, it's not relevant.

[00:06:04] Speaker 00:
We don't look at that.

[00:06:05] Speaker 00:
It's just a forfeiture and therefore it's

[00:06:08] Speaker 00:
It's not an excuse for failure to resolve.

[00:06:11] Speaker 03:
I think how we know is actually by the record in this case that the appellate counsel basically says, hey, I heard about this, that he wants to withdraw it, so I'm withdrawing it, which seems to indicate that he never went and spoke to him, which appears to be very different in the building staff.

[00:06:33] Speaker 00:
I understand your factual point, but I still don't see why legally we should

[00:06:38] Speaker 00:
attach a difference between a failure to file the notice of appeal and a withdrawal of a filed notice of appeal.

[00:06:47] Speaker 00:
I do not understand legally why those should be treated differently.

[00:06:54] Speaker 03:
Well, I think, Your Honor, under 1326, that basically what happened is that

[00:07:06] Speaker 03:
and what we're asking, and it's different, I admit, like these facts are different than a lot of the other cases, but that the withdrawal of it should excuse Mr. Martinez Martinez inability to have finished the administrative process.

[00:07:31] Speaker 03:
And then by not being able to finish the administrative process,

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was not able to finish the judicial process.

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And so what we're asking for is that the court allow the case to be remanded with the court making a finding that he was not able to finish the administrative process.

[00:07:57] Speaker 03:
So therefore has accomplished one and two

[00:08:02] Speaker 03:
under the statute.

[00:08:04] Speaker 04:
How could he accomplish too that he was deprived of the opportunity to appeal?

[00:08:10] Speaker 04:
How can that be on this record?

[00:08:14] Speaker 04:
He was not ever deprived of the opportunity to appeal.

[00:08:18] Speaker 03:
Well, he was from our perspective, is that he was deprived of it because... He withdrew his appeal and that deprived him of the opportunity to appeal?

[00:08:32] Speaker 03:
This is where the blankness of the record comes in, which is we have the handwritten note, but then we know his counsel doesn't speak to him because the counsel says, hey, I heard this, and now I'm withdrawing this.

[00:08:50] Speaker 04:
It's his burden to show that he meets these two requirements, exhaustion and deprivation of an opportunity to appeal.

[00:08:59] Speaker 04:
If there's nothing in the record, doesn't he lose on that one?

[00:09:04] Speaker 03:
I don't think so, Your Honor, which is probably the easy answer for it.

[00:09:08] Speaker 03:
I have a minute left.

[00:09:09] Speaker 03:
May I reserve my time?

[00:09:10] Speaker 03:
Yes.

[00:09:11] Speaker 03:
Okay.

[00:09:11] Speaker 03:
Thank you very much.

[00:09:19] Speaker 02:
Good morning, Your Honors.

[00:09:20] Speaker 02:
May it please the court, Caitlin Noel on behalf of the United States.

[00:09:25] Speaker 02:
I agree with my colleague that this case presents a very narrow issue, and that issue is whether Mr. Martinez met his burden to show that he exhausted his administrative remedies.

[00:09:38] Speaker 02:
As Judge Collins pointed out, the Villa Vicencio Burwell case is really instructive in this situation.

[00:09:46] Speaker 02:
There is simply no reason that the

[00:09:53] Speaker 02:
To the extent that an attorney's failure to file an appeal after preserving the right to appeal in immigration court is not tantamount to a waiver, which is what the court said in the Villavicencio case, that same rule applies here.

[00:10:13] Speaker 02:
There's just no difference between the failure to file the appeal after preserving the right and the withdrawal of the appeal.

[00:10:22] Speaker 01:
Counsel, I'm not sure in listening to opposing counsel that I really ever heard her say, this is the standard of review and under this standard of review, this is why my client prevails.

[00:10:33] Speaker 01:
Would you address what you maintain as the standard of review and just quickly summarize why he does not prevail?

[00:10:42] Speaker 02:
Your Honor, so in terms of this court's standard of review, the court is reviewing de novo, the denial of the motion to dismiss.

[00:10:50] Speaker 02:
It reviews for clear error the district court's factual findings.

[00:10:54] Speaker 01:
So when she was describing this should have occurred or this should have occurred, would that be clear error or de novo?

[00:11:04] Speaker 02:
And I apologize, I'm not sure I'm clearing your question.

[00:11:08] Speaker 02:
to the extent she was saying something should have occurred in the immigration proceedings or?

[00:11:12] Speaker 01:
Correct.

[00:11:14] Speaker 04:
The lawyer should have talked to the client or?

[00:11:17] Speaker 02:
Sure.

[00:11:18] Speaker 02:
So in terms of the standard that the district court is applying when it's looking at what happened in immigration court, it is, as Judge Rawlinson pointed out, the defendant's burden to show that he met the requirements under 13-2060.

[00:11:34] Speaker 02:
So it is the defendant's burden to show that he exhausted all available administrative remedies.

[00:11:42] Speaker 02:
That's on him.

[00:11:42] Speaker 02:
And in this particular case, the district court found that he had failed to show that.

[00:11:47] Speaker 02:
And this is- Is that a finding of fact?

[00:11:51] Speaker 02:
I think that that is a finding of fact.

[00:11:52] Speaker 02:
I think that should be reviewed for clear error, that particular finding.

[00:11:55] Speaker 02:
But I think regardless of whether it's reviewed for clear error or de novo,

[00:11:59] Speaker 02:
that is a correct finding because there is no evidence here.

[00:12:04] Speaker 02:
Much like in via Vicencio Burwell, there is simply no evidence that when defendants immigration counsel filed the formal withdrawal of the appeal, which happened months after this original, this handwritten note.

[00:12:21] Speaker 02:
So to the extent that there's an argument that

[00:12:23] Speaker 02:
there is evidence that Mr. Martinez was not consulted with his attorney.

[00:12:28] Speaker 02:
We have a multi-month period in between when the handwritten, when Mr. Martinez himself submitted the handwritten note withdrawing his appeal, after which there was communication from, I believe it was still INS at that time, but between INS and the attorney saying, hey, he turned in this note saying he wanted to withdraw, it's then multiple months later that the attorney actually files the motion to withdraw.

[00:12:53] Speaker 01:
But we just have notes.

[00:12:55] Speaker 01:
So when counsel speculates, we don't really know what happened before this note was signed.

[00:13:00] Speaker 01:
Perhaps it was a coercion, whatever.

[00:13:02] Speaker 01:
It's really her client's burden.

[00:13:04] Speaker 02:
It is.

[00:13:05] Speaker 02:
Yes, Your Honor.

[00:13:06] Speaker 02:
And I would, once again, I feel like I'm going back a lot to via Vicencia Burwell.

[00:13:10] Speaker 02:
But in that case, this court said there's no evidence that the attorney, by failing to file an appeal, by failing to follow up on that right to exhaust administrative remedies, by failing to appeal to the

[00:13:26] Speaker 02:
to the BIA, there was no evidence there that the attorney was acting outside the scope of his authority or that the defendant in that case hadn't consented to that.

[00:13:36] Speaker 02:
And we're in the same situation here.

[00:13:38] Speaker 02:
The defense counsel can

[00:13:43] Speaker 02:
can speculate, but there's simply no evidence that the handwritten note was forged or coerced, or that when counsel did file the formal withdrawal in the BIA, that counsel was acting outside the scope of his authority.

[00:14:00] Speaker 02:
There just isn't any evidence like that, just like in via Vicencia Buruel,

[00:14:05] Speaker 02:
And just like in that case, this court should conclude that the defendant here failed to meet his burden to show that he exhausted his administrative remedies.

[00:14:17] Speaker 02:
Unless the court has questions for me, I would ask the court to please affirm.

[00:14:20] Speaker 04:
Thank you, counsel.

[00:14:26] Speaker 03:
Thank you.

[00:14:26] Speaker 03:
Unless the court had additional questions, I'd like to rest.

[00:14:30] Speaker 04:
Thank you, counsel.

[00:14:31] Speaker 03:
Thank you to both counsel.

[00:14:33] Speaker 04:
The case just argued is submitted for decision by the court.