[00:00:02] Speaker 00:
Good morning, your honor.

[00:00:03] Speaker 00:
May it please the court, my name is Lee Lee and I represent the petitioner in this case.

[00:00:10] Speaker 00:
This case is a simple question.

[00:00:12] Speaker 00:
It's about whether the BIA abused this discretion by first refusing to consider a petitioner's late file brief and then summarily dismissing the appeal for not providing enough information on whether

[00:00:30] Speaker 00:
on what the grounds for appeal were.

[00:00:35] Speaker 00:
The first issue is that the BIA's dismissal was a very boilerplate, and in two cases, first Garcia Gomez versus Gonzalez, which is the case in this circuit, and then in the second case that I believe opposing counsel put a brief, which was Lopez Gomez, which is a first circuit case that quotes Garcia Gomez.

[00:00:58] Speaker 00:
In both cases, these two appeals courts found that

[00:01:04] Speaker 00:
You can't, the BIA cannot just simply dismiss a motion to accept the late-file brief when by giving a very boilerplate explanation that says the reasons given were insufficient.

[00:01:17] Speaker 02:
May I just ask a technical question?

[00:01:19] Speaker 02:
Once the elect, he was rejected on the electronic system, could he have refiled using the correct system?

[00:01:29] Speaker 02:
Is that in the record?

[00:01:31] Speaker 00:
I'm not sure, it's not in the record whether he could have filed or not, but what is in the record, Your Honor, is that when he found out that there was an error, which was in the AR, which was after 5 p.m., so he couldn't get an overnight service to send it, he apparently couldn't get an overnight service to send it on time, he immediately informed the BIA, filed the motion to accept the late-file brief,

[00:01:56] Speaker 00:
sent an express mail that arrived one business day later, which was on the 13th.

[00:02:01] Speaker 00:
The 10th was a Friday, so if there was a one-day delay, that was the earliest the BIA could reach it.

[00:02:08] Speaker 00:
But also these facts are more favorable than the First Circuit case where the plaintiff had a three-week delay.

[00:02:17] Speaker 00:
In neither case was it suggested that the opposing party, the DHS, was prejudiced by

[00:02:25] Speaker 00:
this delay in the facts in filing.

[00:02:28] Speaker 01:
So can I ask you to separate out two issues?

[00:02:30] Speaker 01:
One issue is, should the brief have been accepted in the first place, even though it was late?

[00:02:36] Speaker 01:
The second issue is, should the appeal to the BIA have been dismissed?

[00:02:43] Speaker 01:
because there was no brief, basically.

[00:02:46] Speaker 01:
And on the second one, I thought that the standard that the BIA had to think about is whether there was a reasonable explanation for having missed the deadlines.

[00:02:56] Speaker 01:
And I'm not sure if the BIA explained why they thought your explanation wasn't reasonable.

[00:03:01] Speaker 00:
They did not, the only explanation they gave was the reason was insufficient.

[00:03:08] Speaker 00:
I understand that they argued in briefs that they were permitted to do so, but also that's their own practice manual.

[00:03:17] Speaker 00:
And as of Loper-Bright, I don't think that's accorded any deference in the appeals court anymore.

[00:03:23] Speaker 01:
So is your argument that

[00:03:25] Speaker 01:
Because they didn't really evaluate whether your explanation was reasonable, we should send it back to them to evaluate that?

[00:03:31] Speaker 00:
Yes, Your Honor.

[00:03:32] Speaker 01:
And if we do that, is there any chance you'll win?

[00:03:37] Speaker 01:
I mean, I guess the question is, do we basically have any reason to think that that exercise would be more anything other than futile because it seems like they'll probably just say that you shouldn't have been late and the reason of having trouble with the electronic filing wasn't enough?

[00:03:52] Speaker 00:
Well, in Lopez Gomez, the First Circuit said that the petitioner in that case had their reasons they gave seemed reasonable, which were that they had a technical error and they worked diligently to correct the technical error and also the general principle under

[00:04:12] Speaker 00:
I think it's INS versus ABUDU is that there's the public interest in bringing a prompt close to immigration litigation, which is why there's things like filing deadlines, but also that's balanced with the interest in allowing the

[00:04:29] Speaker 00:
immigrant to fully develop their case.

[00:04:32] Speaker 00:
And in this case, if the BIA thinks that without this brief, the immigrant was not allowed to fully develop their case, which they apparently did by dismissing the case, then they should have accepted that brief under the standards that they were working under.

[00:04:49] Speaker 02:
So in this case, the brief is filed late, but the government responds to the brief.

[00:04:56] Speaker 02:
And in the government's brief, there's no suggestion of untimeliness

[00:04:59] Speaker 02:
Does any of that matter or is it all focused on what happens at the BIA?

[00:05:04] Speaker 00:
Actually, the government's brief does matter because it also shows why the BIA should not have dismissed the case even if they dismissed the refused to consider the late file brief.

[00:05:16] Speaker 00:
The government shows that by addressing the two points that were brought up in the brief that

[00:05:22] Speaker 00:
Essentially, the adverse credibility determination was entirely based on whether—on petitioners allegedly getting the dates wrong on his son's age and his son's birthday.

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The government's brief was directly on point and shows that even without petitioners' brief, nobody would have been left guessing.

[00:05:41] Speaker 00:
And the BIA should also have considered that the government even—the government also was providing a guideline as to what they should have—what they could have evaluated on appeal.

[00:05:55] Speaker 03:
else seems like the government wasn't prejudiced then.

[00:05:59] Speaker 00:
Yes, the government was not prejudiced by the failure to file and also it pokes a hole in their in their appeals brief which says that there were no less than six issues but their own brief in the AR shows that they focused on that one core issue and also mentioned

[00:06:18] Speaker 00:
also mentioned that the visa issue, but even then the IJ said that only that those issues were not dispositive of or did not affect petitioners credibility.

[00:06:29] Speaker 00:
It was just the dates of critical events that he was concerned about.

[00:06:39] Speaker 00:
So

[00:06:41] Speaker 00:
Also, in the cases that were cited where failure to file a brief led to the brief being summarily dismissed and the case being summarily dismissed or that being a potential issue, there was no brief filed at all.

[00:06:58] Speaker 00:
In Zatino versus Holder and Rojas Garcia versus Ashcroft, no brief was filed at all.

[00:07:04] Speaker 00:
There was no late file brief to accept.

[00:07:08] Speaker 01:
I understand.

[00:07:09] Speaker 01:
Do you want to reserve time for rebuttal?

[00:07:11] Speaker 00:
Yes, I'll reserve three minutes for rebuttal.

[00:07:14] Speaker 01:
Thank you.

[00:07:22] Speaker 03:
Good morning.

[00:07:27] Speaker 03:
Good morning, may it please the court?

[00:07:28] Speaker 03:
Jenny Lee on behalf of the respondent, the Attorney General of the United States.

[00:07:32] Speaker 03:
The court should deny the petition for review because the board gave two independently dispositive reasons for summarily dismissing petitioners' appeal.

[00:07:41] Speaker 03:
First, with regard to the notice of appeal, at 8 CFR 103.1 D2A, the notice of appeal must tell the board what he is challenging, but he did not identify the basis of his appeal.

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As the court said, we need to explain, the petitioner must show not just how the immigration judge aired, but why.

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Here, the notice of appeal was insufficient.

[00:08:07] Speaker 03:
Just simply saying the immigration judge is-

[00:08:11] Speaker 01:
I was going to say let's assume that's right and go on to what happened with the brief and whether there was enough explanation for dismissing the appeal.

[00:08:17] Speaker 03:
Yes, Your Honor.

[00:08:17] Speaker 03:
I'd be happy to address that.

[00:08:20] Speaker 03:
With regard to why the brief was rejected, this case is clearly different from Lopez Gomez.

[00:08:29] Speaker 03:
In Lopez Gomez, the petitioners in that case never sought a brief extension.

[00:08:36] Speaker 03:
This is important because in the BIA practice manual at Chapter 4.7,

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D, the board's practice manual specifically states how cases are treated if an extension motion is filed as opposed to if no extension is filed.

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Quote, if no request to extend the briefing schedule has been previously made, such motion to accept late file brief will only be granted upon a showing of good cause for failing to meet the party briefing.

[00:09:07] Speaker 03:
That's what happened in Lopez Gomez.

[00:09:09] Speaker 03:
Here, petitioner specifically sought an extension.

[00:09:13] Speaker 03:
So we go to the BI practice manual, which states, quote, in all other cases, the moving party must demonstrate extraordinary circumstances, examples, death, serious illness, natural or manmade disaster, to warrant a favorable exercise of discretion.

[00:09:34] Speaker 03:
Another key distinction in this case?

[00:09:36] Speaker 02:
The bottom line is we don't know the reason because after going through your first part, which of course has to do the notice of appeal not being a fulsome notice of appeal and a very legitimate point, all they say is the record indicates you did not file such a written brief or statement within the time set for filing, period.

[00:09:57] Speaker 02:
They don't actually give the reasons.

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They don't say, well, there were no extraordinary circumstances

[00:10:02] Speaker 02:
given his motion or given his explanation, we don't buy it and therefore it's rejected.

[00:10:09] Speaker 02:
So we don't really know the reason, do we?

[00:10:12] Speaker 02:
You're providing a reason, but we just didn't get it from the BIA.

[00:10:16] Speaker 03:
Well, Your Honor, the Board's notice of action was a procedural, I guess, notice.

[00:10:23] Speaker 03:
And so

[00:10:25] Speaker 03:
Because it's procedural, we need to look at the BIA practice manual to be informed as to what that procedure means.

[00:10:32] Speaker 03:
The board in its decision specifically noted that petitioner filed an extension motion and that there were no extraordinary circumstances.

[00:10:40] Speaker 03:
Going back to Lopez,

[00:10:43] Speaker 01:
Sorry, can I bring you to 8 CFR 1003?

[00:10:47] Speaker 01:
It's a long thing.

[00:10:48] Speaker 01:
It ends 2 IE.

[00:10:51] Speaker 01:
Because it says that the BIA has to consider whether a petitioner has reasonably explained his failure to file the timely brief before a case can be summarily dismissed.

[00:11:00] Speaker 01:
And I just don't see where we know that the BIA, I mean, you're saying there is a reasonable explanation, but where did the BIA consider whether a petitioner reasonably explained his failure?

[00:11:12] Speaker 03:
So again, that must be read by looking at the board's decision, notice of action, and the practice manual and the events that happened in this case.

[00:11:21] Speaker 02:
But it seems very odd to me that somehow you impute the practice manual to the rationale of the board.

[00:11:30] Speaker 02:
It may be true, but it seems to me you need to know what is the decision so we at the Court of Appeals know what we're reviewing.

[00:11:40] Speaker 02:
And we're not reviewing the practice manual and all kinds of other internal administrative documents.

[00:11:49] Speaker 03:
Your Honor, I understand your question.

[00:11:52] Speaker 03:
However, not all courts are as generous as this court with extension motions.

[00:11:57] Speaker 03:
For example, in the Second Circuit, if we do not file our brief timely, that case is either dismissed or we're not given an opportunity to file a brief.

[00:12:05] Speaker 02:
Well, then you should file more briefs here.

[00:12:08] Speaker 03:
Your Honor, we filed plenty of briefs here.

[00:12:11] Speaker 03:
I know that.

[00:12:13] Speaker 01:
Again, going back to... I guess, I mean, there is this regulation that talks about the BIA needing to consider a reasonable, whether there is a reasonable explanation.

[00:12:23] Speaker 01:
So...

[00:12:26] Speaker 01:
Are you just saying we, what are you saying we do with that?

[00:12:28] Speaker 03:
So the reasonable explanation will vary depending on the circumstances of the case.

[00:12:33] Speaker 03:
Here, because Petitioner already saw an extension, we know what reasonable circumstances are because we look at the BIA practice manual.

[00:12:41] Speaker 01:
But so if the BIA had said in their decision, we are relying on the practice manual and his trouble with the electronic filing doesn't count under the practice manual, that kind of reason might have then allowed

[00:12:57] Speaker 01:
petitioner to say well the practice manual is invalid it's not a reasonable interpretation of its own regulation or something but we don't even have we can't review the reason because we don't you're telling us that but we don't have that reason and he didn't have the ability to respond to that reason your honor practitioners and immigration court the board of appeals are very familiar familiar with the administrative manuals so I so okay let me just ask you this do we have any case that says

[00:13:25] Speaker 02:
You don't have to cite the administrative manual, but it works in the background and it's always implicitly applicable.

[00:13:35] Speaker 02:
But does the BIA have such a case even?

[00:13:38] Speaker 03:
I am not familiar with mine.

[00:13:40] Speaker 02:
I mean, they might now, but it just seems that it's a stretch to say what's the reason and you're giving a reason, but the BIA didn't do what you're doing here in a rational way.

[00:13:56] Speaker 03:
I believe that if you're a practitioner with the executive, with the immigration courts and with the board, the reason should be no, because the practice manual tells you how to litigate your cases before the board.

[00:14:16] Speaker 03:
Moving back to Gomez Lopez, another key distinction is that in that case,

[00:14:22] Speaker 03:
the petitioner's counsel was informed of the incorrect filing location after the deadline passed.

[00:14:33] Speaker 03:
Here, petitioner's counsel attempted to file the brief with the immigration court on May 9th, the day before it was due.

[00:14:41] Speaker 03:
And he received the rejection letter on May 9th.

[00:14:44] Speaker 03:
So contrary to what petitioner's counsel indicated,

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Mr. Chen's lawyer could have properly filed with the board using the e-case system on May 9th.

[00:14:59] Speaker 03:
He did not do so.

[00:15:00] Speaker 03:
On May 10th, same thing.

[00:15:03] Speaker 03:
He could have filed it electronically, but he chose not to.

[00:15:07] Speaker 03:
Because Petitioner's case happens after February of 2022, the board's regulations on electronic filing,

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require that petitioners file their briefs electronically.

[00:15:21] Speaker 03:
He didn't do so.

[00:15:23] Speaker 03:
And so unlike in Lopez Gomez, where the petitioners council could not file timely, in this case, petitioners council could have timely filed it.

[00:15:35] Speaker 03:
And in Lopez Gomez, that attorney acted diligently as soon as she found out that the brief was filed in the incorrect location.

[00:15:45] Speaker 03:
And another key distinction is in Lopez Gomez,

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The board specifically noted in this rejection notice that the petitioner could file a motion to consider a brief.

[00:15:58] Speaker 03:
In those circumstances, remember we're looking for a good cause, not extraordinary circumstance.

[00:16:05] Speaker 03:
The first circuit found we don't know enough about the board's decision to know why it denied the motion.

[00:16:17] Speaker 03:
Again, we're looking at extraordinary circumstances.

[00:16:21] Speaker 03:
We can't say that the petitioner's mistake on filing in the incorrect location meets that standard.

[00:16:32] Speaker 03:
For those reasons, respondent.

[00:16:35] Speaker 01:
Is your argument really a futility argument, though?

[00:16:37] Speaker 01:
I mean, are you basically saying there's no reason to remand for an explanation because it's so obvious that there would be one and so this is going to lose eventually, or are you saying that we actually can tell that that was the reason already?

[00:16:51] Speaker 03:
I believe that the futility argument is a stronger argument, but I also think that we can tell what the board was saying based on the record and the practice manual.

[00:17:08] Speaker 03:
Again, in this case, Mr. Chen's counsel did not act diligently, already had an extension.

[00:17:16] Speaker 03:
For those reasons, the board did not abuse its discretion in denying his motion to accept late file brief.

[00:17:25] Speaker 03:
If the court has no further questions, respond at rest on the brief file.

[00:17:29] Speaker 03:
Thank you, Your Honor.

[00:17:40] Speaker 00:
I would like to reiterate that the government is relying on the practice manual, but again, after Loper-Brite versus Raimondo, there is no difference to the practice manual when the statute is ambiguous as it is here.

[00:17:57] Speaker 00:
The statute, as you mentioned, Your Honours, it allows the BIA to consider a late file brief and therefore

[00:18:05] Speaker 00:
And therefore, their interpretation of that ambiguous statute is just their interpretation.

[00:18:11] Speaker 01:
It is not inherently- I think it's actually regulations, not a statute, right?

[00:18:15] Speaker 01:
Aren't we looking at regulations?

[00:18:16] Speaker 00:
Yes, regulations, yes.

[00:18:17] Speaker 00:
I misspoke, Your Honor.

[00:18:19] Speaker 00:
But also, there's a bit of a mischaracterization, I believe, of Lopez Gomez and Garcia Gomez, which is the core of those cases was that the BIA provided a boilerplate explanation of why the case was dismissed, why the brief was rejected, as they did here, and that boilerplate explanation was insufficient because it did not provide anybody enough information as to when and as to how

[00:18:47] Speaker 00:
as to what the grounds were and whether those grounds were valid.

[00:18:51] Speaker 02:
Let me ask.

[00:18:53] Speaker 02:
Ukraine already had one extension, correct?

[00:18:57] Speaker 00:
Yes, Your Honor.

[00:18:58] Speaker 02:
And so if we were to remand and say the BIA needs to give a fosum or some explanation of the rejection, and the BIA comes back and says, well, number one, you already had one extension, and you know if you get one extension,

[00:19:16] Speaker 02:
then you have a high mountain to climb of extraordinary circumstances to get a late file brief.

[00:19:23] Speaker 02:
Do you think you'll be any better off than you are where you are now?

[00:19:28] Speaker 00:
I think it's at least a reasonable to give the BIA a chance to consider whether petitioners efforts, our efforts to diligently toward the error were sufficient to overcome that mountain.

[00:19:43] Speaker 00:
and also I think it's important to get those grounds on the record so we know what if any reason is there is for the rejection so we know if there's a necessity appeal or the likelihood of success for appeal because again there's a balance of interest here and my client is currently

[00:20:09] Speaker 00:
filing for asylum.

[00:20:11] Speaker 00:
So if he loses this chance to appeal and is not permitted and is sent back, he might be detained, beaten, tortured, or even killed.

[00:20:22] Speaker 00:
So there is this balance of interest that should be factored in when it comes to whether my client has been given a valid reason to.

[00:20:34] Speaker 00:
And also, sorry, may I go a little over?

[00:20:36] Speaker 00:
Also, this comes

[00:20:39] Speaker 00:
Also, Mike, this is a strange case because there's also the fact that the BIA dismissed, presumably, but for the late file brief.

[00:20:51] Speaker 00:
If there was a brief, they would have reached the merits, even though the DHS shows that the merits were fairly obvious on the grounds.

[00:21:02] Speaker 00:
And even though the notice of appeal did not

[00:21:06] Speaker 00:
the notice of appeal did not provide much detail.

[00:21:09] Speaker 00:
It was more than enough detail to realize, well, we're talking about this one issue, which was- I think I need to cut you off.

[00:21:14] Speaker 01:
I think we understand your arguments.

[00:21:16] Speaker 01:
Thank you.

[00:21:17] Speaker 01:
Thank you.

[00:21:17] Speaker 01:
You're over your time.

[00:21:18] Speaker 01:
Thank you both sides for the helpful arguments.

[00:21:20] Speaker 00:
My apologies, Your Honor.

[00:21:20] Speaker 01:
This case is submitted.