[00:00:12] Speaker 01:
Good morning.

[00:00:15] Speaker 01:
We have three cases on calendar that are to be submitted on the briefs.

[00:00:23] Speaker 01:
Those are 23-3853, Diana Elizabeth Bermeo Colleen versus Pamela Bondi, 24-2950, Aser Omar Alvarez Esquivel versus Pamela Bondi,

[00:00:42] Speaker 01:
and 23-426, Ivan Vega Diaz versus Pamela Bondi.

[00:00:49] Speaker 01:
In accordance with the respective orders previously entered on the dockets of those cases, those three cases are hereby submitted for decision on the briefs.

[00:00:59] Speaker 01:
We'll then proceed to hear argument in the first case on calendar for argument this morning, which is 23-909 and 24-172,

[00:01:12] Speaker 01:
Jose Luis Martinez Estrada versus Pamela Bondi.

[00:01:16] Speaker 01:
And we will hear first from Ms.

[00:01:18] Speaker 01:
Galarza.

[00:01:19] Speaker 01:
You may proceed.

[00:01:21] Speaker 04:
Good morning, your honors.

[00:01:22] Speaker 04:
May it please the court.

[00:01:24] Speaker 04:
Luciana Galarza on behalf of the petitioner, Mr. Martinez Estrada, a father of an active duty member of the U.S.

[00:01:35] Speaker 04:
Armed Forces and a native of Mexico.

[00:01:37] Speaker 04:
I would like to reserve five minutes for rebuttal.

[00:01:43] Speaker 04:
Now I will address the issue of the denial of the motion to reopen by the agency below.

[00:01:51] Speaker 04:
I would ask this court to remand this case based on an erroneous finding and an abuse of discretion by the agency denying to reopen Mr. Estrada's case based on him not having met the eligibility

[00:02:13] Speaker 04:
for military parole in place.

[00:02:16] Speaker 01:
Well, was military parole in place presented to the agency below in the form that you're presenting it now?

[00:02:27] Speaker 04:
Yes, the petitioner with his motion to reopen submitted evidence that he had applied for military parole in place.

[00:02:35] Speaker 04:
And as part of that evidence, he submitted evidence of the requirements

[00:02:40] Speaker 04:
of eligibility for that program.

[00:02:44] Speaker 04:
Namely, not only did he submit an application and submit a filing receipt to the agency, but he also submitted evidence of his family relationship to his US citizen daughter, who is an active member in the US Army.

[00:03:01] Speaker 01:
But at the time the agency ruled, it said that he'd not offered evidence that had been deemed eligible for that program.

[00:03:11] Speaker 04:
That's correct and I believe that that conclusion or finding a fact by the board was erroneous.

[00:03:21] Speaker 04:
The board in its decision acknowledged that he had filed an application and even in a footnote acknowledged that the application was pending and then the agency

[00:03:34] Speaker 04:
then turned around and stated that he had not submitted evidence or offered any evidence that he had been deemed eligible for the program.

[00:03:42] Speaker 01:
I think in context what the agency is saying is that USCIS had not yet ruled on the application at which point he'd be determined to be eligible.

[00:03:54] Speaker 01:
So at the time they ruled there was an application pending and they said

[00:04:01] Speaker 01:
It hadn't been ruled on, so it hadn't been established, and it's not clear whether USCIS will grant such relief.

[00:04:08] Speaker 01:
And therefore, at the time they ruled, why is that an abuse of discretion?

[00:04:11] Speaker 01:
I mean, it doesn't sound like the facts procedurally as they describe them were wrong.

[00:04:15] Speaker 01:
Why is an abuse of discretion to say the factor of an application pending isn't enough at the time they ruled?

[00:04:24] Speaker 04:
Well, I believe it's an abuse of discretion because here it appears from a reading of the decision that the board didn't know or acknowledge that in order for the U.S.

[00:04:37] Speaker 04:
citizenship and immigration services to make a determination on that application, the agency cannot do that because it does not have jurisdiction to review if the

[00:04:51] Speaker 04:
if the applicant is in removal proceedings.

[00:04:54] Speaker 02:
Council, what is the status of the military parole in place application?

[00:04:59] Speaker 02:
I understand from reading your motion to refer this case to mediation that was there a denial of the application?

[00:05:09] Speaker 02:
Because when I look at it, it seems like there's some inconsistency between the docket showing that it is still pending versus I think

[00:05:20] Speaker 02:
somewhere in the record, I saw that it had been denied.

[00:05:25] Speaker 04:
The application for military parole in place has been denied by USCIS for lack of jurisdictions only.

[00:05:36] Speaker 04:
And that is correct that the USCIS often does not provide accurate information with regards to

[00:05:50] Speaker 04:
the uh whether an application has been approved or denied and so the sole reason for mediation um was to request to see if the parties can work with the government um in order for to well why isn't if if you think the change circumstances have now

[00:06:20] Speaker 01:
led to a certain situation where the agency should reconsider this.

[00:06:26] Speaker 01:
Why isn't the remedy to file a new motion to reopen and present the new facts to the board and ask it to reconsider?

[00:06:34] Speaker 01:
Because we can't add things to the administrative record.

[00:06:39] Speaker 04:
That is correct.

[00:06:40] Speaker 04:
And I believe the only practical or procedural

[00:06:48] Speaker 04:
resolution for the petitioner to be able to file another application, which is what I'm asking this court to do, is to remand the matter back to the board.

[00:07:01] Speaker 01:
Where is the error in the board's decision on this point that would justify a remand?

[00:07:12] Speaker 04:
Well, the error

[00:07:16] Speaker 01:
is that the board... It sounds like what you're telling me is that the applicant filed in the wrong place to seek the military parole in place.

[00:07:25] Speaker 02:
Sounds like what you're now saying, it should have been filed in the removal proceeding and not in... I think that... Let me just make sure I'm understanding and I think this goes to Judge Collins' question.

[00:07:37] Speaker 02:
The USCIS has denied the application for lack of jurisdiction because there is a pending appeal on the motion to reopen.

[00:07:45] Speaker 02:
Is that correct?

[00:07:46] Speaker 02:
That's correct.

[00:07:47] Speaker 04:
Because a petitioner is still in removal proceedings, USCIS cannot make a determination on that application.

[00:07:57] Speaker 02:
So at the conclusion of this appeal, you can refile that application, correct?

[00:08:05] Speaker 02:
And it will get decided on the merits, regardless of that you won't have the jurisdictional issue.

[00:08:12] Speaker 04:
Well, the only

[00:08:15] Speaker 04:
way that the petitioner can refile that application is if this court were to send back the case back to the board, the board under newly enacted regulations under ACFR section 1003.1m has the discretion to terminate removal proceedings where USCIS has jurisdiction to adjudicate a petition or an application.

[00:08:45] Speaker 04:
So the board has that discretion, and if the government were to agree to file a motion to terminate, that would also be a potential resolution for the petitioner to file that application.

[00:08:59] Speaker 01:
You're asking for exercises of executive discretion, which is not within our purview.

[00:09:04] Speaker 01:
We're not the executive branch, and we can't give you discretionary grants of prosecutorial relief.

[00:09:12] Speaker 04:
I understand, but the court does have the authority to remand this case if the board abused its discretion in not considering an application for release.

[00:09:22] Speaker 01:
But we have to find an abuse of discretion in order to send it back.

[00:09:26] Speaker 01:
We just can't send things back because we feel like it.

[00:09:31] Speaker 04:
Yes, and the petitioner's position in this case is that the board did abuse its discretion because

[00:09:37] Speaker 04:
The board in the decision essentially stated that the petitioner did not offer any evidence that he had been deemed eligible for the program.

[00:09:48] Speaker 01:
What about his criminal history?

[00:09:49] Speaker 01:
Wouldn't that be a problem with getting a grant of relief and the military parole in place?

[00:09:56] Speaker 04:
I acknowledge that his criminal history will come into determination, will come into play when the agency makes a discretionary analysis.

[00:10:06] Speaker 04:
Though neither the immigration judge in this case when he was reviewing the application for cancellation of removal did not make any determinations as to discretion.

[00:10:19] Speaker 04:
He only denied 42B cancellation of removal for his failure to meet the hardship standard.

[00:10:27] Speaker 04:
He did not make any findings as to whether or not he merited any discretion.

[00:10:33] Speaker 04:
And here the board also didn't make a discretionary finding.

[00:10:37] Speaker 04:
as to whether or not he would be likely to receive that benefit.

[00:10:44] Speaker 01:
Do you want to address the Fonseca Fonseca issue in this case?

[00:10:51] Speaker 01:
With respect to... With respect to whether or not the agency applied the correct standard in its discussion of matter of Coelho in the first ruling?

[00:11:08] Speaker 04:
Yes, I believe the court in that case held that the would likely standard wasn't the right standard, but whether there was a reasonable likelihood.

[00:11:24] Speaker 01:
Is it clear what the agency

[00:11:30] Speaker 01:
did because it says this evidence is not sufficient to meet the respondent's burden of showing that reopening for further consideration of the applicant's cancellation application is warranted.

[00:11:45] Speaker 01:
That doesn't tell us literally in isolation in what respect it was unwarranted, either at the eligibility prong or at the discretionary prong.

[00:12:02] Speaker 04:
And that is correct.

[00:12:05] Speaker 04:
From a reading of the decision, it doesn't appear that the board made a distinction.

[00:12:10] Speaker 01:
But then when you go to the site, it says C-matter of Coelho, and it cites the discussion at pages 471 to 473, and then has a parenthetical about

[00:12:28] Speaker 01:
a non-citizen seeking reopening for further consideration of an application for relief bears a heavy burden, must present evidence of such a nature the board is satisfied that if the proceedings are reopened, the new evidence will likely change the result.

[00:12:42] Speaker 01:
And if you go to that portion of the discussion of COELO, that heavy burden and the likely change of result comes from page 473

[00:12:56] Speaker 01:
And it's very clear on page 473 that they're talking about prong two, the discretionary.

[00:13:02] Speaker 01:
They actually say on that page that in a case such as the present one, making a prima facie showing of eligibility for the underlying relief being sought is largely irrelevant.

[00:13:14] Speaker 01:
and that the board ordinarily will not consider a discretionary grant of a motion to remand unless the moving party meets a heavy burden, et cetera.

[00:13:22] Speaker 01:
So the citation is clearly to the portion about discretionary.

[00:13:28] Speaker 01:
So why shouldn't we resolve the ambiguity in that sentence in favor of saying that this rested on the discretionary problem?

[00:13:36] Speaker 01:
And then it would not be erroneous under Fonseca Fonseca.

[00:13:44] Speaker 04:
a reading of the decision from the board, the board only stated that it was unclear whether USCIS would grant the application.

[00:13:57] Speaker 04:
The board didn't say or weigh any positive or negative equities in making that determination.

[00:14:07] Speaker 04:
And so at

[00:14:12] Speaker 04:
The board only addressed the first step, which is the step of eligibility, but didn't address... How do we know that?

[00:14:18] Speaker 01:
What language tells us that it decided this at prong one rather than prong two?

[00:14:24] Speaker 04:
Well, where the board states that the petitioner didn't offer any evidence that he had been deemed eligible for the program.

[00:14:34] Speaker 02:
Council, it appears to me that the government has conceded that the BIA applied the would likely change standard

[00:14:42] Speaker 02:
to deny Martinez's motion to remand on prima facie grounds, but their argument, which you address in your reply brief, is that it's harmless.

[00:14:52] Speaker 02:
So we haven't adopted a harmless error standard for this type of circumstance, but my question to you is if we accept the government's concession that in fact the wrong standard would

[00:15:07] Speaker 02:
was used and we remanded the case to the board to apply the correct legal framework, you acknowledge that that is, you know, that's not going to give you an opportunity to present any new evidence, only that the BIA would need to consider the existing evidence in your motion under the correct legal framework, correct?

[00:15:32] Speaker 02:
That is correct.

[00:15:36] Speaker 01:
But I'm looking at the order, and I'm trying to figure out from the order if the order tells us whether it was decided at prong one or prong two.

[00:15:43] Speaker 01:
So can you point me to the language in the BIA's order that shows that it's done at prong one?

[00:15:55] Speaker 04:
If I may, Your Honors.

[00:16:19] Speaker 04:
I guess I'm not, I'm not entirely sure of the question.

[00:16:23] Speaker 01:
I'm looking at the April 13th, 14th, 2023 order on the second page in the second full paragraph, which is a paragraph that denies the motion to remand for further consideration of the cancellation application.

[00:16:39] Speaker 01:
And it summarizes the new evidence presented.

[00:16:43] Speaker 01:
and then said, this evidence is not sufficient to meet the respondent's burden of showing that reopening for further consideration of the respondent's cancellation application is warranted.

[00:16:54] Speaker 01:
And then cites COELO and has a parenthetical about the standard for prong two.

[00:17:00] Speaker 01:
So I'm just, I'm not seeing where is the language that tells us from this order that it was decided at prong one.

[00:17:29] Speaker 01:
Okay.

[00:17:29] Speaker 01:
Well, maybe you can look at that and get back to us on rebuttal.

[00:17:33] Speaker 01:
We've taken a lot of your time with questions, so I'm going to give you the five minutes you requested for rebuttal.

[00:17:40] Speaker 01:
But you can take a look at that during time.

[00:17:43] Speaker 01:
We'll hear from the government.

[00:17:45] Speaker 04:
Thank you, Your Honor.

[00:17:46] Speaker 01:
All right.

[00:17:46] Speaker 01:
Thank you, Counsel.

[00:17:47] Speaker 01:
All right.

[00:17:47] Speaker 01:
So we'll hear now from Ms.

[00:17:51] Speaker 01:
Tyler.

[00:17:54] Speaker 03:
Good morning, Your Honors.

[00:17:55] Speaker 03:
May it please the court, my name is Julia Tyler and I represent the Attorney General in this case.

[00:18:02] Speaker 01:
Before I start, I would really- So do you concede, because your brief did not have any argument that the order was not wrong under Fonseca Fonseca.

[00:18:13] Speaker 01:
Am I overlooking something?

[00:18:15] Speaker 01:
Do you concede that the order did not comply with Fonseca Fonseca?

[00:18:21] Speaker 03:
I think that I was attempting to advance to the next argument, but I do think that as you pointed out, Judge Collins, the decision is vague with respect to the unwarranted language.

[00:18:35] Speaker 01:
Well, normally if we have a vague order where we can't really make heads or tails of it and the briefing reflects of the parties, we're confused about it as well.

[00:18:44] Speaker 01:
Outstander procedure is to remand the matter back to the agencies so that we can figure the agency can tell us exactly what they ruled on because we're trying to make heads or tails of it.

[00:18:56] Speaker 03:
Well, I appreciate that.

[00:18:57] Speaker 03:
But I do think that even I think my argument is even if it was a mistake with regard to Fonseca Fonseca, harmless error would apply.

[00:19:08] Speaker 01:
I don't see how that could be consistent.

[00:19:13] Speaker 01:
with administrative law principles because the standard that under Fonseca Fonseca arguably should have been applied is a more lenient standard.

[00:19:30] Speaker 01:
maybe a failure to meet the stricter, a failure to meet the stricter standard does not subsume within it as a lesser included, a failure to meet a lesser standard.

[00:19:43] Speaker 01:
You know, someone who doesn't meet a higher standard may be able to meet a lower one.

[00:19:47] Speaker 01:
So I don't see how we can say it was harmless.

[00:19:50] Speaker 03:
Okay.

[00:19:50] Speaker 03:
So, well, a couple of things.

[00:19:52] Speaker 03:
Number one, there was really no, Fonseca, Fonseca was decided months after the board issued its decision in this case.

[00:19:59] Speaker 03:
So the board was not telepathic and could not have relied on Fonseca Fonseca and that distinction, which was highlighted in the second board decision when this court had yet to decide that case.

[00:20:13] Speaker 01:
And I think the other issue that I really want to highlight here is that- It would still be an error of law regardless of whether it was decided before or after, but can you please address the harmlessness question?

[00:20:29] Speaker 03:
Well, the heartlessness question, I think in order to do that, I have to highlight the fact that Ms.

[00:20:33] Speaker 03:
Galarza, with all due respect, is confusing what evidence was at issue in which motions.

[00:20:41] Speaker 03:
We have three basic challenges here.

[00:20:43] Speaker 03:
One to the underlying denial of cancellation of removal, and one to the motion to remand.

[00:20:49] Speaker 03:
That motion to remand only presented evidence with regard to petitioner's father.

[00:20:54] Speaker 03:
It did not present evidence with regard... Excuse me.

[00:20:57] Speaker 02:
I'm not sure what you're arguing right now has anything to do with the question that Judge Collins asked that I'm also curious about, and I asked your friend on the other side, and she acknowledged that if we were to determine that the wrong legal standard was used, which it appears the government conceded by not challenging in its brief,

[00:21:19] Speaker 02:
then we need to send it back and it may be a limited remand for the correct legal standard to be used, but what evidence is or is not in the record is irrelevant to the application of the correct legal standard.

[00:21:36] Speaker 03:
Well, I think that if you look at Judge Bay's dissent in Lopez, this court absolutely can apply a harmless error to the application of a certain standard.

[00:21:49] Speaker 01:
You could have harmless error if, for example, they found that the petitioner didn't satisfy a lower standard and then a case comes out later that says actually the burden is even higher.

[00:22:02] Speaker 01:
Well, that's harmless.

[00:22:03] Speaker 01:
They didn't apply the correct standard.

[00:22:05] Speaker 01:
They didn't meet the lower one, so they necessarily didn't meet the higher one, so it's harmless.

[00:22:10] Speaker 01:
But the converse isn't true.

[00:22:12] Speaker 01:
The standard became more lenient under Fonseca Fonseca, and we don't know whether they would have found the lower one was met.

[00:22:21] Speaker 03:
If the evidence, and this is where I'm getting back to the evidence that was submitted with motion to reopen number one.

[00:22:27] Speaker 03:
The claim with Motion to Reopen number one was that his father had chronic kidney disease, which they retracted.

[00:22:36] Speaker 03:
There is no evidence whatsoever under any standard that there was a basis.

[00:22:42] Speaker 02:
That may be true, and that may be what the BIA ultimately determines, but that doesn't correct the application of the wrong standard.

[00:22:52] Speaker 02:
Let me ask you this.

[00:22:53] Speaker 02:
On page 65 of the excerpts of record, and this was the subject of the discussion here before with your friend on the other side, there is language that states, this evidence is not sufficient to meet the respondent's burden of showing that reopening for further consideration of the respondent's cancellation application is warranted.

[00:23:16] Speaker 02:
And then there is a citation to matter of COELA.

[00:23:20] Speaker 02:
And in that parenthetical,

[00:23:23] Speaker 02:
it is very clear that the agency is relying on a case that applies the third prong, the discretionary relief standard to essentially a prima facie determination.

[00:23:41] Speaker 02:
So can you, you didn't address this in your brief, we're giving you an opportunity to talk about it now.

[00:23:46] Speaker 02:
Where in the language of the agency decision do we look to to know that the correct standard

[00:23:53] Speaker 02:
was used.

[00:23:59] Speaker 03:
Well, it's, it's a bit like asking someone to go back in time when a decision doesn't even exist in the world and ask them how they would refer to Fonseca Fonseca if it existed.

[00:24:11] Speaker 00:
So is your answer.

[00:24:12] Speaker 00:
So council is then your answer.

[00:24:15] Speaker 00:
It's not there and it's vague.

[00:24:17] Speaker 00:
Is that, is that your answer?

[00:24:24] Speaker 03:
I think it's fake.

[00:24:25] Speaker 00:
Thank you.

[00:24:27] Speaker 02:
I'm curious to know why the government opposes referring this case to mediation.

[00:24:34] Speaker 03:
Your honor, this allows me to get back to the MPIP issue.

[00:24:40] Speaker 03:
And again, I think it's important to distinguish between the two motions to reopen that were filed here, one with respect to evidence that was submitted with regard to the father, and then the second,

[00:24:54] Speaker 03:
motion to reopen.

[00:24:56] Speaker 03:
With regard to MPIP, Mrs. Galarza can correct me if I'm wrong, but the Department of Homeland Security has already denied her request for prosecutorial discretion, which means they will not agree to jointly reopen this case to terminate its proceedings to allow USCIS to grant MPIP.

[00:25:18] Speaker 03:
And I would also point out that in the motion to reopen that was presented.

[00:25:22] Speaker 03:
This would be the second motion to reopen to present the issue.

[00:25:25] Speaker 03:
The petitioner did not ever highlight for the board that the USCIS could not grant or would not find that they had jurisdiction over.

[00:25:36] Speaker 03:
unless he was no longer in removal proceedings.

[00:25:39] Speaker 03:
That was not highlighted for the board, and I would also point out that there was no motion to reopen or motion to reconsider filed with USCIS on any grounds, despite the fact that the denial was sent in January of 2024 to the petitioner himself.

[00:25:55] Speaker 03:
Apparently, Ms.

[00:25:56] Speaker 03:
Gillars is only recently learning about the denial of the MPIP, but it was sent to him.

[00:26:02] Speaker 03:
With respect to, so I do, to answer your question, Judge Desai, I do not think anything is going top of mediation.

[00:26:12] Speaker 01:
Can I ask a technical administrative law question?

[00:26:20] Speaker 01:
I'm just speaking hypothetically, just so I understand the decision tree and how things could go.

[00:26:26] Speaker 01:
I'm not suggesting hints.

[00:26:28] Speaker 01:
If this petition were to be denied and the removal order becomes final, would USCIS at that point then acquire jurisdiction to be able to consider the military parole in place issue?

[00:26:44] Speaker 03:
Your Honor, I don't work with USCIS and I do not know enough about this was, you know, some of this was raised with regard to- As you said, they can't do it while it's in removal proceedings.

[00:26:55] Speaker 03:
That's what the letter says.

[00:26:56] Speaker 01:
That's what the letter says.

[00:26:57] Speaker 01:
Does it continue, if there's a removal order that is yet to be executed, does that bar on jurisdiction continue at that point?

[00:27:04] Speaker 03:
Your honor, I'm not, I apologize.

[00:27:06] Speaker 03:
I'm not an expert in MPIP and I don't know what the USCIS's position with regard to that would be.

[00:27:13] Speaker 03:
But I will also say that that letter only discusses the very threshold determination with regard to MPIP, which is that he was in removal proceedings.

[00:27:24] Speaker 03:
And when the board in denying the second motion to reopen pertaining to MPIP, they didn't say that he didn't present any evidence pertaining to his eligibility.

[00:27:34] Speaker 03:
They said he didn't present any evidence that established that he had been deemed eligible, and he hasn't been deemed eligible.

[00:27:41] Speaker 03:
He's been deemed ineligible.

[00:27:43] Speaker 03:
The board rested that decision on two things, the length of time it would take for him to adjust his status and the speculative nature of the relief he was seeking.

[00:27:53] Speaker 03:
The speculative nature of the relief of his seeking, that has come home to roost.

[00:27:57] Speaker 03:
He has been denied that relief.

[00:27:59] Speaker 03:
He can reapply.

[00:28:00] Speaker 03:
There are petitions, I think, in the Cali decision that Petitioner provided last night.

[00:28:06] Speaker 03:
They reapplied three times.

[00:28:08] Speaker 03:
He's free to reapply.

[00:28:09] Speaker 03:
He can reapply.

[00:28:10] Speaker 03:
It might be denied.

[00:28:13] Speaker 03:
But the point is that in order for removal proceedings to be terminated, they would have to agree, the DHS would have to agree to a motion to reopen.

[00:28:22] Speaker 03:
And I believe that they have already denied his request for prosecutorial discretion.

[00:28:27] Speaker 03:
So the reason for no mediation and the reason for no remand is that this case is not going anywhere and nothing is going to change regardless because the evidence that's been produced is so insufficient.

[00:28:43] Speaker 01:
But going back to the main, the original order, the order in the April 14th, 2023 order,

[00:28:59] Speaker 01:
on the issue of, you've conceded that that now is vague, which I think alone would suggest that it should go back.

[00:29:11] Speaker 01:
But beyond that, we have the clear suggestion that the second prong standard was applied.

[00:29:24] Speaker 01:
But you've said that it was harmless, but I still,

[00:29:28] Speaker 01:
I think you understand what my difficulty with a harmless error argument is, and I'm not sure I fully understand your response.

[00:29:34] Speaker 03:
I appreciate you're giving me another crack at it, your honor.

[00:29:38] Speaker 03:
So if you have two standards and one is lower than the other, but you can tell from the evidence and the concessions made by petitioner that that evidence would satisfy neither standard.

[00:29:51] Speaker 03:
So let's say somebody submitted no evidence at all, which is basically what happened with regard to the motion to reopen number one pertaining to the father's alleged chronic

[00:30:02] Speaker 03:
kidney disease he didn't actually even have.

[00:30:06] Speaker 03:
So it doesn't matter what standard was applied because the evidence evaporated.

[00:30:11] Speaker 03:
The only thing that he supplied in support of that first motion to reopen, which generated the board order that we are all discussing here, is a completely vague and unexplained test result that said that he might have an upper respiratory infection.

[00:30:28] Speaker 03:
It had nothing to do with anything.

[00:30:31] Speaker 03:
And I have to point out that there is a public interest in finality in these cases.

[00:30:36] Speaker 03:
This remand would lengthen a process that has already taken 13 years.

[00:30:43] Speaker 03:
And it creates a perverse incentive to submit motions to reopen with weak evidence, as they did in this case on November 10, 2020.

[00:30:54] Speaker 02:
Why would it create a perverse incentive to file frivolous motions reopen if the agency is not clear in its decision

[00:31:03] Speaker 02:
about what standard it is using and is careful in the language that it uses.

[00:31:10] Speaker 03:
Well, Your Honor, relying on the possibility that that would happen.

[00:31:15] Speaker 03:
I mean, there was no evidence.

[00:31:18] Speaker 02:
Perhaps petitioners are relying on having their cases reviewed closely and carefully and having decisions issued that rely on the correct legal standard.

[00:31:29] Speaker 03:
Correct legal standard had not been articulated at that time, that judged side, with all due respect.

[00:31:34] Speaker 03:
It hadn't, FUNCICA, FUNCICA had not been issued yet.

[00:31:38] Speaker 02:
Are you contesting the sort of premise that petitioners should expect the BIA to review their cases carefully?

[00:31:48] Speaker 03:
Of course not.

[00:31:49] Speaker 03:
Absolutely.

[00:31:50] Speaker 03:
I completely agree with you.

[00:31:52] Speaker 02:
And articulate reasons for their decisions that are understandable by reviewing courts?

[00:31:56] Speaker 03:
I think that we are myopically focusing on, and I don't mean that with any disrespect, we are focusing on certain things.

[00:32:04] Speaker 02:
Well, I'm just responding to what I think is a necessary argument about the perverse incentives that might be created, that perhaps petitions that are being filed are intentionally and purposefully frivolous.

[00:32:20] Speaker 03:
I didn't say anything about, with all due respect, Your Honor, I didn't say anything about frivolous.

[00:32:25] Speaker 03:
I am simply pointing out that there is insufficient evidence in support of the motion to reopen number one that would support any remand.

[00:32:34] Speaker 01:
It sounds like a form of administrative summary judgment.

[00:32:39] Speaker 01:
Under Chenery, we normally, when the agency has discretion,

[00:32:46] Speaker 01:
um, to make a decision, we'd review deferentially on facts, uh, et cetera.

[00:32:51] Speaker 01:
We normally can't make the decision for them.

[00:32:56] Speaker 01:
And do you have any authority that says we can kind of do this sort of, well, we don't need to remand cause we would some, this is, you know,

[00:33:06] Speaker 03:
Actually, I would direct the court's attention to Judge Bay's dissent in Lopez.

[00:33:11] Speaker 01:
Do you have a majority opinion that helps you?

[00:33:15] Speaker 03:
I think we're talking about such a specific thing and so specific in time.

[00:33:19] Speaker 03:
The Lopez decision is really interesting because it's actually talking about this very issue when the board used the wrong standard would likely likely change versus

[00:33:30] Speaker 03:
rather than a reasonable likelihood.

[00:33:32] Speaker 02:
Can you address the Chenery decision?

[00:33:34] Speaker 02:
Because I think that that decision from the Supreme Court is directly on point about the issue relating to what we can do with respect to the agency action.

[00:33:52] Speaker 03:
Well, I think that Chenery requests that we look at the Four Corners of the Board's decision and

[00:33:58] Speaker 03:
and I obviously grant all due respect to the Chenery decision.

[00:34:03] Speaker 03:
I also think that this court has applied harmless error to this very issue and today Vasquez, it applied harmless error to this very issue and Judge Bay argued in his dissent that where there is limited evidence supplied in support of a motion to reopen and the evidence that was provided was vague and inconclusive, remand to the board would be futile.

[00:34:27] Speaker 03:
That's

[00:34:28] Speaker 03:
I think that's very strong argument then.

[00:34:31] Speaker 01:
All right.

[00:34:32] Speaker 01:
Thank you, counsel.

[00:34:33] Speaker 03:
Um, I appreciate it, your honor.

[00:34:34] Speaker 03:
Thank you very much.

[00:34:35] Speaker 03:
All right.

[00:34:36] Speaker 03:
We'll hear rebuttal now.

[00:34:45] Speaker 04:
I would like to respond to, um, the other side's, um, argument regarding or the consequences of my client having

[00:34:57] Speaker 04:
had a removal order entered against him and how that would affect his ability to apply for military parole in place and his ability to subsequently adjust.

[00:35:13] Speaker 01:
Would he apply for military parole in place with a final removal order that hasn't been carried out yet in place?

[00:35:24] Speaker 04:
Your honor, if

[00:35:27] Speaker 04:
petitioner were to reapply having a removal order, he will ultimately the consequences of that is that the petitioner will not be eligible to adjust his status to lawful permanent resident in the United States.

[00:35:49] Speaker 01:
But then he would not be eligible for military parole in place if these removal proceedings conclude unfavorably.

[00:35:57] Speaker 04:
Correct.

[00:35:58] Speaker 04:
And also in response to the government's assertion that the only avenue to terminate these removal proceedings is if the Department of Homeland Security were to agree to termination.

[00:36:14] Speaker 04:
That is incorrect.

[00:36:15] Speaker 01:
The Code of Federal Regulations provide... We can't get into any legal issues about how they should exercise their discretion.

[00:36:26] Speaker 01:
not before us, it's not something we can regulate.

[00:36:30] Speaker 01:
What we have are the agency's decisions on the specific applications that were presented to it.

[00:36:40] Speaker 04:
So going back to Fonseca Fonseca as this court already heard and the government acknowledged that the language in the decision is big with respect to

[00:36:52] Speaker 04:
the application of the legal standard.

[00:36:55] Speaker 01:
I understand the government's concession on that point, but I did ask you the question to study the order and tell me where you thought there was language in the order, apart from what the government conceded or didn't say.

[00:37:10] Speaker 01:
Tell me where there's something in the order that tells us that it was done at prong one as opposed to prong two.

[00:37:20] Speaker 04:
Well, I don't see anywhere in the order that would.

[00:37:24] Speaker 04:
That would clearly tell us at what prong the board made that determination.

[00:37:36] Speaker 04:
OK.

[00:37:40] Speaker 01:
So at best, it's it's vague.

[00:37:44] Speaker 04:
Correct, OK.

[00:37:49] Speaker 04:
Now, I would just like to end my argument by making one last point.

[00:37:57] Speaker 04:
And that point is that by the board essentially denying the motion to reopen so that the petitioner could apply for military parole in place is essentially undermining the intent of Congress to provide

[00:38:19] Speaker 04:
to provide relief from removal for those who have family members enlisted in the armed forces.

[00:38:28] Speaker 04:
And so based on that, I believe that the board also acted irrationally by essentially determining that there was no evidence that he even met the eligibility requirements to apply for that benefit.

[00:38:47] Speaker 04:
And he should be given

[00:38:48] Speaker 04:
an opportunity for the USCIS to make a determination on that application and weigh the equities.

[00:38:57] Speaker 04:
Thank you.

[00:38:57] Speaker 01:
All right.

[00:38:58] Speaker 01:
Thank you, Council.

[00:38:58] Speaker 01:
All right.

[00:39:03] Speaker 01:
The case just argued will be submitted.