[00:00:08] Speaker 00: The United States Court of Appeals for the Ninth Circuit is now in session. [00:00:18] Speaker 04: Good afternoon. [00:00:19] Speaker 04: Welcome to the Ninth Circuit Court of Appeals and to the James Browning Courthouse. [00:00:24] Speaker 04: It's a pleasure to have you all here today. [00:00:26] Speaker 04: This is the time set for the case of Claudia Elena Montejo Gonzalez versus Pamela Bondi. [00:00:35] Speaker 04: Council is ready to proceed. [00:00:36] Speaker 04: You may come forward. [00:00:49] Speaker 09: Good afternoon, Your Honors. [00:00:50] Speaker 09: My name is Catherine Munyan, and I am here representing Petitioners Claudia Elena Montejo-Gonzalez and her two children. [00:00:57] Speaker 09: I'd like to reserve 10 minutes for rebuttal. [00:01:03] Speaker 09: This court should affirm the totality of the circumstances tasked that it, just like its sister circuits and the agency, has applied for decades, and that the panel correctly applied here to find Petitioners eligible for relief. [00:01:16] Speaker 09: The government sought rehearing based on a misrepresented view of the panel's holding, that the panel found petitioners at fault for their delayed removal, but nonetheless eligible for relief solely because of its results. [00:01:29] Speaker 09: But that's not what the panel did. [00:01:30] Speaker 09: It recognized that the petitioners were not at fault, but that their delayed arrival was instead due to the two extraordinary car accidents that largely blocked their attempts to get to court that morning. [00:01:42] Speaker 07: Council, I wanted to start with the statutory language. [00:01:46] Speaker 07: The statute gives, you know, this would be a much easier case if it didn't have a definition of exceptional circumstances. [00:01:54] Speaker 07: We see statutes like that all the time and that gives judges a lot more discretion in how to apply that. [00:02:02] Speaker 07: But here there's a definition of exceptional circumstances and it says nothing less compelling than battery, death, serious injury. [00:02:15] Speaker 09: Well, Your Honor, I think the statutory language, in fact, supports the inquiry that the panel applied. [00:02:20] Speaker 07: But do you agree with me that that's what the statute says? [00:02:22] Speaker 07: That it can't be a reason that is less compelling than death, injury, or illness? [00:02:33] Speaker 09: Yes, but I think the key question is, what does less compelling mean? [00:02:36] Speaker 07: That's fine. [00:02:37] Speaker 07: And you think that traffic is less [00:02:41] Speaker 07: not less compelling traffic delays are not less compelling than injury death. [00:02:50] Speaker 09: I think what's relevant under the statute as this didn't answer my question. [00:02:54] Speaker 07: I understand you have a different and I want to hear your argument. [00:02:57] Speaker 07: I mean I really appreciate the. [00:03:00] Speaker 07: the briefs that you guys put in, it's very helpful on a difficult issue. [00:03:04] Speaker 07: But do you agree with me, or do you agree that the petitioner, that your client here faced a circumstance that was less compelling than death, injury, or illness? [00:03:19] Speaker 09: No. [00:03:20] Speaker 09: This court has previously said in Arradondo- But it has nothing to do with what our court previously said. [00:03:25] Speaker 07: We're on bonk right now. [00:03:27] Speaker 07: Part of the panel's problem [00:03:29] Speaker 07: was it was dealing with some of our precedent. [00:03:32] Speaker 07: How was traffic delay? [00:03:35] Speaker 07: How is it as compelling as death, injury, or illness? [00:03:42] Speaker 09: What renders a circumstance compelling is the degree of impediment to arrival, not the emotional impact on the petitioner. [00:03:49] Speaker 09: That's what this court previously recognized. [00:03:51] Speaker 07: I don't know what emotional impact has anything to do with it. [00:03:54] Speaker 07: My question is, I know you don't want to answer my question, but I've asked it 10 times. [00:04:00] Speaker 07: How is death, bodily injury, or illness, how is this not less compelling? [00:04:10] Speaker 07: A traffic delay. [00:04:11] Speaker 09: Because traffic that makes it impossible to get to court that closes down the highway is something that renders the circumstances beyond the petitioner's control. [00:04:20] Speaker 10: Is your question, is your answer to Judge Nelson's question that the degree that you're looking to compelling as something that prevents someone to get to the hearing? [00:04:30] Speaker 09: Yes. [00:04:32] Speaker 10: I think this antecedent question for me before we get to the quality of the circumstance is causation, because I read the statute to say that the circumstances have to be circumstances that prevented the petitioner from appearing at her hearing. [00:04:48] Speaker 10: Do you agree with that? [00:04:50] Speaker 09: Yes, I do. [00:04:51] Speaker 10: Okay, so before we get to the quality, and then I'm going to circle back, but before we get to the quality of the circumstance, would you agree that anything happens after the hearing couldn't have prevented her from getting to the hearing? [00:05:04] Speaker 09: I agree that there is a requirement under the statute for a causal reason for the failure to attend the hearing, and that the inquiry focuses on that causal reason. [00:05:13] Speaker 10: So my question was, if it's a circumstance that arises after the hearing, do you agree that it's not a cause of her failure to appear? [00:05:25] Speaker 09: I agree that something that occurs entirely after the failure to appear isn't a causal circumstance. [00:05:36] Speaker 09: I do think that things the petitioner is aware of [00:05:39] Speaker 09: before the failure to appear can be relevant in assessing the causal circumstance and how exceptional the failure to appear was. [00:05:46] Speaker 10: Could you talk about the motivation perhaps or diligence? [00:05:50] Speaker 10: Is that what you're saying? [00:05:51] Speaker 09: I'm talking about motivation, diligence, and the petitioner's awareness of the merits of their case and the potential results for removal. [00:05:59] Speaker 02: But I'm a commuter, so this is like every day of my life. [00:06:06] Speaker 02: There's, you know, and so I'm hard pressed to see how that's extraordinary. [00:06:12] Speaker 02: I hit two accidents practically every day. [00:06:16] Speaker 09: Judge Callahan, I don't want to make representations about your commute, but I do want to distinguish here and push back a little bit on the record. [00:06:23] Speaker 09: The record is clear that this wasn't ordinary traffic. [00:06:26] Speaker 09: These are really extraordinary accidents that were causing really, really unusual highway delays. [00:06:31] Speaker 06: Isn't the totality of circumstances test in existence? [00:06:36] Speaker 06: The reason we utilize it is because many of these questions that would cause [00:06:40] Speaker 06: you standing here before us today to make determinations or statements in response to some of my colleagues' questions about what might constitute per se exceptional or unexceptional circumstances is difficult to do. [00:06:52] Speaker 06: So I'm going to ask you a hypothetical. [00:06:55] Speaker 06: If a petitioner's house caught on fire, you might say that that is per se exceptional or, in response to Judge Nelson's question, something that rises to the level [00:07:06] Speaker 06: something extraordinary like the death of a family member or illness. [00:07:10] Speaker 06: But when doing the totality of circumstances analysis that our court has previously indicated at the test and as you mentioned tracks what the agency itself says, if you were to consider that the petitioner never planned to go to the hearing or never arranged for transportation to go to the hearing or failed to appear eventually or in prior hearings that they might have had, [00:07:35] Speaker 06: What would you say is the ultimate determination about exceptional circumstances in a case like that? [00:07:42] Speaker 06: So you have a house fire, but many facts that show, for example, that there was no motive or diligence to appear at the hearing. [00:07:50] Speaker 09: Well, the petitioner would have to make a showing that the house fire had some sort of causal connection to their nonappearance. [00:07:56] Speaker 09: And I think all the factors that Your Honor is mentioning would be relevant and necessary for the agency [00:08:02] Speaker 09: assess in considering whether the petitioner's non-appearance was truly exceptional. [00:08:07] Speaker 09: and whether the cause was exceptional in those circumstances. [00:08:12] Speaker 09: As Your Honor referenced, the statute very much requires an individualized inquiry into the circumstances of the petitioner. [00:08:19] Speaker 09: There are certain listed examples, but not even the listed examples are necessarily grounds for nonattendance. [00:08:26] Speaker 09: You have to examine them within the context of a particular petitioner's circumstances. [00:08:30] Speaker 09: Take for an example a petitioner whose parent has died, which is a statutory listed example. [00:08:36] Speaker 09: you might consider if it's an adult petitioner who had an estranged parent die, it's very unlikely that that event, even if emotionally resonant in some ways, would have a causal connection for a failure not to attend. [00:08:48] Speaker 09: So it's absolutely relevant under the statute and necessary for the agency to consider a petitioner's general diligence and the merits of their claim. [00:09:00] Speaker 07: I'm not sure I understand your argument, though. [00:09:04] Speaker 05: Let's just say the standard of review here is abuse of discretion. [00:09:07] Speaker 05: So we would have to find that the BIA acted arbitrarily, irrationally, contrary to law, and based on the evidence that was before the agency. [00:09:18] Speaker 05: Her declaration says the main reason I did not appear is because there was heavy traffic on the way to court. [00:09:25] Speaker 05: She miscalculated how much time it would take to arrive at court. [00:09:31] Speaker 05: You know, she realizes it was her fault. [00:09:34] Speaker 05: And she should have arranged for proper transportation. [00:09:36] Speaker 05: Based on this, how can we find that it, what the BIA did here was arbitrary or irrational? [00:09:44] Speaker 05: And would this have given them enough facts to distinguish Sharma and Arredondo? [00:09:49] Speaker 09: Yes, I think there were. [00:09:50] Speaker 09: And I have two responses. [00:09:51] Speaker 09: First, I would like to point your honor to a few additional things in the record. [00:09:55] Speaker 09: We have petitioner's declaration that says there were two major traffic accidents. [00:10:00] Speaker 09: In addition, she included a Spanish language news article [00:10:04] Speaker 09: Documenting how extraordinary the conditions were that morning that's at car 100 and we have her photos of the traffic at car 101 to 108 Do we have any indication about whether those? [00:10:19] Speaker 03: Pictures or that update that I think you're talking about the page 100 Spanish announcement whether that was unusual traffic for the area I think [00:10:29] Speaker 09: It was unusual traffic for the area. [00:10:32] Speaker 09: You know, it is making the news that morning as the article attests. [00:10:37] Speaker 09: And as the article that we mentioned in our briefing, references, these were really unusual accidents. [00:10:44] Speaker 09: We have a series of not one, but two accidents, first involving a semi truck and occurring at 4.30 in the morning. [00:10:49] Speaker 03: I think the article in your brief does help, but I don't think it was before the agency. [00:10:52] Speaker 03: Is that right? [00:10:53] Speaker 09: It was not before the agency, but it does corroborate what's in the petitioner's affidavit that there were two major car accidents. [00:10:59] Speaker 09: And she did include this Spanish language article that was also documenting that we have newsworthy traffic that morning. [00:11:07] Speaker 09: It's not an ordinary thing. [00:11:08] Speaker 12: What do we do with the fact here that by your client's own admission and her declaration, she didn't really leave herself any leeway for anything to happen outside of what I think she thought was ordinary traffic. [00:11:22] Speaker 12: She thought it would take 90 minutes to get there, and it seems like she left 105 minutes. [00:11:28] Speaker 12: So I just wonder what we do with that. [00:11:31] Speaker 12: It seems like she didn't leave room for anything beyond the regular road conditions that she was going to encounter. [00:11:38] Speaker 09: So Judge Thomas, I don't think there's any dispute that she would have arrived in time to be deemed to have appeared at the hearing absent these two extraordinary car accidents. [00:11:49] Speaker 09: Under this court's precedent in Perez v. Mukasey and Gerasano v. INS, she would have been deemed to appear as long as she got there while the IJ was still on the bench. [00:11:57] Speaker 09: And the declaration states at Sierra 35 that she arrived just after the IJ had left the bench. [00:12:04] Speaker 09: The clerks were still there. [00:12:05] Speaker 09: Everything was still in place, but the IJ was just off the bench. [00:12:09] Speaker 09: But for these two extraordinary accidents, she would have been there. [00:12:12] Speaker 09: How late was she? [00:12:14] Speaker 09: She arrived at 1030, so two hours after the 830 time. [00:12:19] Speaker 10: But of course, this is an initial... I'm trying to make sure that I'm counting the timing the way you are. [00:12:27] Speaker 10: If she had allowed more time, as many people would have, let's say she had allowed an hour, is it your position she still would have been an hour late? [00:12:35] Speaker 09: I think it's hard to tell based on the record. [00:12:41] Speaker 09: Why is that? [00:12:41] Speaker 10: I thought you just told me she got there two hours late. [00:12:45] Speaker 09: She got there two hours late, but this is a situation where we know there was extraordinary traffic all morning. [00:12:50] Speaker 09: There were lane closures all morning. [00:12:53] Speaker 10: I'm not sure you're following my question. [00:12:54] Speaker 10: My question is, if she had timed this so that she had allowed herself an hour, is it correct that she still would have been an hour late? [00:13:03] Speaker 10: Oh, if she had allowed only an hour? [00:13:06] Speaker 09: That's my question. [00:13:07] Speaker 09: Yes. [00:13:08] Speaker 09: If she allowed only an hour to get there as opposed to... No, no counsel. [00:13:12] Speaker 10: I'm sorry. [00:13:14] Speaker 10: If she had timed this rather than having 15 minutes, as Judge Thomas just talked with you about, if she had timed this so she'd have an hour of leeway, wouldn't she still have been an hour late? [00:13:26] Speaker 06: She still would have been late if she had... In fact, if she had left two hours earlier, say if she had left at 4.45 in the morning instead of 6.45 in the morning, [00:13:35] Speaker 06: She still would have not made it in time for her hearing, correct? [00:13:39] Speaker 09: Yes, absolutely. [00:13:40] Speaker 09: This is traffic that began at 4.30 in the morning. [00:13:43] Speaker 06: So can you address Judge Koh's question I think that maybe you were getting at but didn't make it to, which is under the standard that we're reviewing, the agency decision, it's an abuse of discretion. [00:13:53] Speaker 06: How do we find that this was an abuse of discretion? [00:13:59] Speaker 09: So the agency abuses its discretion if it acts arbitrarily, and it also abuses its discretion if it neglects to consider a significant factor that appropriately bears on the discretionary decision. [00:14:09] Speaker 09: That's Moriel Robles v. Lynch in the First Circuit, which the government cites with approval as well. [00:14:14] Speaker 09: If we look at the agency decision at CAR 4 through 5, we see that the agency is not undertaking the detailed analysis that we're undertaking in our discussion here. [00:14:25] Speaker 09: The agency simply says, [00:14:27] Speaker 09: This was ordinary traffic, and therefore it cannot qualify. [00:14:31] Speaker 09: There's no analysis of the specific... Didn't they do more than that? [00:14:34] Speaker 10: Didn't they? [00:14:35] Speaker 10: I think they said that. [00:14:36] Speaker 10: They had considered her declaration, yes? [00:14:39] Speaker 09: It referenced the facts in her declaration, but it did not engage in an analysis of her diligent efforts to attend to the fact that she [00:14:48] Speaker 12: appeared in court the fact that she... They state on page four in the footnote that she had only left herself 15 minutes to park and go through courthouse security, notwithstanding any traffic delays. [00:15:05] Speaker 12: I don't see why that isn't really their analysis of whether she was diligent. [00:15:11] Speaker 12: Maybe it'd be a different case if she had left at 4.30 in the morning and therefore left herself [00:15:18] Speaker 12: you know, two hours or three hours to get to court, but here she's only leaving 15 minutes. [00:15:22] Speaker 12: And I mean, so they've gone beyond, you know, I think they've gone beyond what you're saying. [00:15:28] Speaker 12: They do give them analysis. [00:15:29] Speaker 09: I think that's questionable. [00:15:31] Speaker 09: If you look at the discussion of arcing, that's in the last paragraph on page four, it says that that's a decision requiring consideration of diligence and exhibiting the full consideration of factors relevant. [00:15:49] Speaker 09: And it says that's irrelevant because it was her first hearing, she was not mistaken regarding the hearing time, and she's not demonstrated that she would have been entitled to relief according to the agency. [00:15:59] Speaker 09: So the agency is simply dismissing that. [00:16:01] Speaker 09: It's not considering her record of previous attendance at all DHS meetings and full compliance with DHS requirements. [00:16:11] Speaker 09: It's not considering the fact that she researched the time that the traffic would take to the best of her ability. [00:16:17] Speaker 09: It's not considering the fact that unlike the petitioners in Sharma and Arradondo, she was not familiar with the area and she was relying on someone else for a ride unlike those petitioners. [00:16:31] Speaker 02: Going back to what Judge Nelson was talking about, the further away we get from the statute, that concerns me, and the text of the statute does not mention motive or unconscionable result. [00:16:43] Speaker 02: What's your best argument based on the text of the statute that we can look to either motive or unconscionable result in assessing the motion to reopen? [00:16:52] Speaker 09: So the statute defines exceptional circumstances as circumstances beyond the control of the non-citizen. [00:16:59] Speaker 09: And I think to determine whether something... Hold on. [00:17:02] Speaker 07: Hold on, counsel. [00:17:03] Speaker 07: Is that really what it defines? [00:17:05] Speaker 07: There's two prongs to exceptional circumstances. [00:17:08] Speaker 07: The first is the quality of the delay, and then the second is that it has to be beyond circumstances. [00:17:16] Speaker 07: I don't think... I mean, you just read the statute as if [00:17:20] Speaker 07: As long as it's beyond the circumstances, you satisfy it. [00:17:22] Speaker 07: Is that what you believe? [00:17:24] Speaker 09: No. [00:17:24] Speaker 09: So Your Honor is right that it does list certain enumerated examples. [00:17:28] Speaker 09: It says such as those examples. [00:17:30] Speaker 09: So it's not a defined list. [00:17:33] Speaker 09: It is open to additional elements. [00:17:36] Speaker 09: And the- Hold on. [00:17:37] Speaker 07: Again, could you read the statute for me? [00:17:40] Speaker 09: Yes. [00:17:41] Speaker 09: The term exceptional circumstances refers to exceptional circumstances such as battery or extreme cruelty, serious illness, serious illness or death, [00:17:50] Speaker 07: But not including less compelling circumstances beyond the control of the last part I mean that's what you keep trying to avoid and that's fine But it says but not less compelling again your case would be a lot easier if the definition were different and we have [00:18:07] Speaker 07: tons of examples where judges have a lot of discretion here, but it says, but not less compelling. [00:18:13] Speaker 07: So, I mean, I don't want to repeat our first colloquy, so go ahead and answer the question, but I think you excised part of the statute out. [00:18:23] Speaker 07: And I want to make sure we're talking about the statutory term. [00:18:25] Speaker 09: Of course, Your Honor, and I do not mean to excise any of the statute out. [00:18:28] Speaker 09: I think not less than compelling, as I said earlier, the relevant inquiry is whether it's a similarly severe impediment to arrival. [00:18:36] Speaker 10: Counsel, on this point, do you mean, I'm not trying to put words in your mouth, but we've talked about causation as a threshold question, and then there's these circumstances, right, that have to have prevented her from getting there. [00:18:48] Speaker 10: And to go, just to follow up on Judge Nelson's point, I think you're saying that you view these circumstances, these two car accidents as, I'll just use the phrase, rising to the level of exceptional under the statute. [00:19:02] Speaker 10: And what the statute gives us is several examples. [00:19:05] Speaker 10: It's a non-exhaustive list, right? [00:19:08] Speaker 10: I think you're saying that one of the characteristics of each of those examples is beyond her control. [00:19:13] Speaker 10: But are there any other characteristics that are common to those examples in the statute that we should be looking to? [00:19:20] Speaker 09: They're beyond the person's control. [00:19:22] Speaker 09: And I think it's relevant that they can't be overcome with diligence necessarily. [00:19:31] Speaker 09: likely or rare within an individual petitioner's experience. [00:19:36] Speaker 02: I have problems with the fact that I think to myself, well, let's say she had arrived on time and I were the IJ and I heard the case. [00:19:47] Speaker 02: Of what I know of the facts, it seems like she wouldn't have prevailed. [00:19:55] Speaker 02: I feel like I would have denied the petition. [00:19:58] Speaker 02: So if that's my conclusion, [00:20:01] Speaker 02: How does that factor in? [00:20:04] Speaker 09: So first of all, I think this court's precedent is correct in saying that while the merits of a petitioner's claim are relevant in considering their failure to appear and whether or not it was exceptional, it's not necessary to show that you have a prima facie case for relief. [00:20:20] Speaker 09: There is, of course, this court has recognized and the Supreme Court has affirmed a due process right to be heard in removal proceedings. [00:20:27] Speaker 09: So we are looking in the statutory language points us to look at whether the failure to appear was [00:20:32] Speaker 09: voluntary in some sense. [00:20:34] Speaker 09: So that's my first response. [00:20:36] Speaker 09: Then my second response to your honor is the immigration court here dismissed petitioner's claim for asylum as merely concerning ordinary crime. [00:20:45] Speaker 09: But petitioner's assertion was that she was targeted for her refusal to join a gang and become a gang girlfriend. [00:20:51] Speaker 09: This court has recognized in Pierre Bach v. Holder that opposition to gang membership may constitute a particular social group. [00:21:00] Speaker 06: did in fact state that he was troubled by no showing of a prima facie case on her ultimate petition. [00:21:08] Speaker 06: Did the IJ address the minor children's claims in any way? [00:21:12] Speaker 09: The IJ did not address the minor children's claims, and the BIA addressed whether there was a prima facie case for relief aid, but it did not separately assess the minor petitioners in terms of whether they had any fault. [00:21:26] Speaker 06: For the delayed arrival and how if at all do we consider the claims of the of the miners when? [00:21:35] Speaker 09: Considering the totality of circumstances The claims of the miners absolutely have to be considered within the totality of the circumstances of course the miners have their own due process right to be heard at hearings and [00:21:47] Speaker 09: Their claims for asylum are tied to their mother's claims. [00:21:51] Speaker 09: They are derivative beneficiaries. [00:21:54] Speaker 06: Those claims be considered as part of the overall motive. [00:21:58] Speaker 06: I'm asking this because as the author of the three-judge panel decision, we were bound by the decision in Hernandez-Galon, which very clearly indicated that this unconscionable result factor is sort of a separate [00:22:13] Speaker 06: analysis, perhaps a separate analysis outside of the totality of circumstances. [00:22:17] Speaker 06: That's how we approached it. [00:22:19] Speaker 06: But as we sit on Bonk, I think it is important to think about whether or not the statute allows for a consideration of an unconscionable result which is really different than [00:22:32] Speaker 06: you know, an exceptional circumstance that causes a petitioner to miss their hearing. [00:22:38] Speaker 06: And so I'm interested to know whether or not consideration of, say, the minor children's claims might go to the overall motive or diligence that the petitioner might have in appearing at the hearing, but for this circumstance that was beyond her control. [00:22:55] Speaker 09: I agree with that entirely, Your Honor. [00:22:57] Speaker 09: I think the minor petitioner's claims could really wholly be considered under motive and properly considered under motive. [00:23:05] Speaker 09: This is a petitioner who was very motivated to appear with two children whose claims were at stake. [00:23:12] Speaker 09: So I see no problem with the court considering that under the headline of motive. [00:23:17] Speaker 09: Perhaps there are other cases. [00:23:19] Speaker 06: Your briefs argue that this should be sort of a separate factor. [00:23:23] Speaker 06: And that's why I'm asking you about it now, which is understanding that there's some tension there with the statutory language. [00:23:34] Speaker 06: You see it still really a distinction without a difference because it can be considered as part of the totality. [00:23:39] Speaker 09: I think it is in many ways a distinction without a difference because it can be considered in part of the totality and as a part of motive. [00:23:44] Speaker 09: And notably, the government hasn't disputed that. [00:23:47] Speaker 09: The governments acknowledge that the eligibility for relief may be very, [00:23:52] Speaker 09: relevant to consider under motive. [00:23:53] Speaker 09: That's a 10 through 11 of the government supplemental brief and four to five of the reply brief. [00:23:58] Speaker 03: I see we are eating into my- Can I ask a follow up question on, I think your answer to Judge, I think it was to Judge Coe about this sort of list of things that you think the agency didn't consider. [00:24:09] Speaker 03: So we were just talking about the merits of the children's claim. [00:24:13] Speaker 03: I think you also talked about the check-ins that she was diligent about appearing in these check-ins before this hearing. [00:24:20] Speaker 03: Are those factors about motive sort of credibility factors or are they playing some other role? [00:24:26] Speaker 03: So I'm just wondering, like, if they're only going to, do we believe her story about what she did? [00:24:34] Speaker 03: My question is, is there any indication here that the agency didn't believe her about what she did? [00:24:40] Speaker 03: Like, do we need to have a credibility question about what she did for motive to come in or does it come in some other way? [00:24:46] Speaker 09: I think it comes in some other way. [00:24:47] Speaker 09: I don't think there needs to be a credibility question. [00:24:50] Speaker 09: You know, the law is clear that you generally take the facts in the affidavit as true since there's no hearing. [00:24:57] Speaker 09: That's Cindy Garland, and Ari Dondo mentions that as well. [00:25:00] Speaker 09: But even if you're taking the facts and the affidavit is true, the agency still needs to make an independent assessment of whether those facts rise to the level of exceptional circumstances. [00:25:09] Speaker 03: But I guess if you believe, OK, so this is my question about the application to the facts here and what the agency decided here. [00:25:16] Speaker 03: Do you think that the agency didn't believe her affidavit or, I mean, if the agency just credited the affidavit, then what were they needing to consider that they didn't consider? [00:25:28] Speaker 09: The agency needed to make its own assessment of her diligence and her motives to appearing and whether or not. [00:25:36] Speaker 03: Why? [00:25:36] Speaker 03: If her diligence is, if the question is a causal question and they believe the cause of what she says, why do they need to still consider diligence? [00:25:44] Speaker 09: So I think it's relevant in considering whether the circumstances are exceptional. [00:25:48] Speaker 10: Isn't it relevant to considering, isn't circumstantial evidence of whether they're beyond her control, whether she really couldn't help it? [00:25:54] Speaker 10: Yes, I agree. [00:25:56] Speaker 11: Even assuming that that's so, how do we know that the IJ didn't engage in that consideration? [00:26:02] Speaker 11: It seemed like the IJ was well aware of the case law that's applicable to [00:26:06] Speaker 11: analyzing the situation, considered her declaration, and addressed it fully. [00:26:11] Speaker 11: So how do we know? [00:26:13] Speaker 11: We don't require IJs to lay out every single detail in the way that you're suggesting in your argument today. [00:26:21] Speaker 11: So how would you respond to that? [00:26:23] Speaker 09: Respectfully, I would push back on that, because the bottom line decision that we get from the agency is that this is controlled and similar to Sharma and Arradondo. [00:26:33] Speaker 09: But here we have petitioners who [00:26:35] Speaker 09: engaged in much more diligent efforts to get to court. [00:26:38] Speaker 06: Were there any factors in Eridondo that weighed in favor of motive or diligence? [00:26:43] Speaker 06: In Eridondo, the petitioner didn't persist to get to the hearing, correct? [00:26:48] Speaker 09: The petitioner did not persist to get to the hearing in Eridondo. [00:26:50] Speaker 09: The petitioner had mechanical difficulty with her car that was outside of her control, the court said. [00:26:56] Speaker 09: But instead, the petitioner had both time and money to get to court at that point and simply chose not to. [00:27:05] Speaker 06: is Arredondo a case that would be appropriate to be cited had the agency considered the totality, since it's a case that is one that is purely about a car issue. [00:27:19] Speaker 06: without any other extenuating factors that would need to be considered. [00:27:22] Speaker 09: I think the agency's reliance on Arredondo shows the deficiency of the agency's consideration here and its failure to consider the actual circumstances of these petitioners' case. [00:27:30] Speaker 09: Now, I don't want to cut off the court's inquiry, but I would like to reserve a few minutes for rebuttal, and I see I only have three minutes left. [00:27:35] Speaker 05: I have one question. [00:27:35] Speaker 05: One of the criticisms in the dissent of the opinion that has been vacated [00:27:40] Speaker 05: is that it's requiring a punch list of items. [00:27:42] Speaker 05: What's your view? [00:27:43] Speaker 05: Do you think that it's error if the BIA doesn't consider each factor in a standalone way, motive, unconscionable result or is it a more fluid analysis that in certain circumstances these factors may be relevant and have to be considered and have to be discussed and others they don't? [00:28:02] Speaker 09: I disagree with the dissent's criticism of the majority opinion there. [00:28:05] Speaker 09: I don't think it sets up a punch list of factors inherent in the nature of a totality of the circumstances test is the idea that sometimes different circumstances will be relevant [00:28:14] Speaker 09: in different situations and be of more weight for consideration. [00:28:17] Speaker 01: But there was an absence in any reasoned decision here. [00:28:21] Speaker 01: I mean, there was a citation to our redondo talking about a traffic jam. [00:28:26] Speaker 01: But in terms of a reasoned decision as to why that was insufficient or not an extraordinary circumstance, there was not that. [00:28:34] Speaker 09: in the agency's decision. [00:28:35] Speaker 08: Yes, I agree. [00:28:36] Speaker 08: Council, I know you're worried about your time, but I'm sure the chief will give you some time for a rebuttal. [00:28:41] Speaker 08: I do also want to ask about the BIA's 2021 decision matter of SLH and LBL where they essentially reversed NIJ who essentially treated traffic delays as per se not exceptional. [00:29:00] Speaker 08: And they said that the record in that case showed that because weather [00:29:04] Speaker 08: snowstorm caused exceptional traffic and it was corroborated that it had to be considered and that there was not going to be a per se rule that traffic is never exceptional. [00:29:17] Speaker 08: And I don't see any indication in the agency either at the IJ or BIA level here of considering whether the traffic here was ordinary or exceptional. [00:29:31] Speaker 09: Yes, I think the agency decision here is entirely at odds with the agency's own analysis in SLH, and SLH offers a helpful example of how traffic delays can be considered just like any potential cause of non-appearance in assessing whether or not they're exceptional. [00:29:46] Speaker 09: I also note the government does not dispute SLH or take any issue with it. [00:29:51] Speaker 09: The government takes the position that traffic conditions caused by a snowstorm are somehow different or more exceptional. [00:29:59] Speaker 09: But it seems entirely arbitrary to me to distinguish between the situation in LSLH and the situation that petitioners faced here. [00:30:08] Speaker 04: Thank you. [00:30:28] Speaker 13: May it please the court, Drew Ensign, Deputy Assistant Attorney General for the United States. [00:30:34] Speaker 13: The panel majority's decision squarely contravenes the statutory standard that Congress adopted, which this court should correct. [00:30:41] Speaker 13: The opinion does so in two ways. [00:30:44] Speaker 13: First, the standard that Congress adopted clearly requires causation. [00:30:49] Speaker 13: The extraordinary circumstances at issue must have caused the failure to appear. [00:30:54] Speaker 13: In the language of the statute, quote, the failure to appear was because of exceptional circumstances, end quote. [00:31:02] Speaker 13: Freestanding equitable considerations untethered from the cause of the failure to appear thus do not and cannot suffice. [00:31:10] Speaker 13: This court should therefore repudiate language in its prior opinions [00:31:14] Speaker 13: that permits unconscionable results. [00:31:16] Speaker 06: Would you agree with your friend on the other side who says it doesn't really matter whether unconscionable results is sort of considered as a freestanding or independent factor as maybe Hernandez-Galon suggested, because I think that you agree that motive can be a consideration [00:31:36] Speaker 06: and should be a consideration with respect to determining an exceptional circumstance. [00:31:41] Speaker 06: So could the unconscionable result go to motive under a totality? [00:31:49] Speaker 13: Quite possibly, Your Honor. [00:31:50] Speaker 13: I don't think that's presented here. [00:31:51] Speaker 13: Let me break that down in a couple steps, actually. [00:31:53] Speaker 13: And so I think, importantly, unconscionable results, unless they have a causal relationship to the failure to appear, cannot suffice. [00:32:02] Speaker 13: Full stop. [00:32:03] Speaker 13: You're done. [00:32:04] Speaker 13: If it has a causal relationship with the failure to appear, then it could potentially be relevant. [00:32:10] Speaker 13: I think the statutory standard has three components to it. [00:32:14] Speaker 13: And I think motive is going to be most relevant to one of them, as Judge Friedland was kind of getting into. [00:32:19] Speaker 13: I think the three components to satisfy the standard are, first, it has to have a causal relationship. [00:32:26] Speaker 13: Two, it has to be extraordinary, which is referring to severity. [00:32:30] Speaker 13: And Congress gives us a couple examples and says it has to be not less severe than those. [00:32:34] Speaker 13: And the third is that it has to be beyond the control of the alien. [00:32:38] Speaker 08: Counsel, under those three factors, why was it appropriate for the BIA to consider whether she had demonstrated she would have been entitled to relief if she had appeared? [00:32:46] Speaker 08: That has nothing to do with causation. [00:32:49] Speaker 13: Your Honor, I don't think it's appropriate to consider that. [00:32:51] Speaker 08: They did consider that, so why wasn't that an abuse of discretion? [00:32:55] Speaker 13: Well, I don't think it's an abuse of discretion. [00:32:57] Speaker 13: I think it was responding to that argument and explaining why it wouldn't have mattered in the alternative, even assuming that that standard applied. [00:33:05] Speaker 13: And BIA was operating at a time when this court had at least DICTA arguably requiring it to do so. [00:33:11] Speaker 13: So I don't think the BIA can be faulted for responding to the very sort of concerns that may have motivated this court to go on bonk. [00:33:17] Speaker 10: So now we're on bonk. [00:33:18] Speaker 10: Can you tell us what you think the test should be? [00:33:21] Speaker 10: You've made it clear that you think the causation element, you've covered that. [00:33:24] Speaker 10: And I think you agree that the exceptional circumstances have to rise to the level, whatever that means. [00:33:30] Speaker 10: That is my word. [00:33:30] Speaker 10: I'm not poking fun at you. [00:33:32] Speaker 10: That's my paraphrase. [00:33:34] Speaker 10: Rise to the level of the enumerated list examples in the statute. [00:33:38] Speaker 10: And how do you define this third element beyond the control of? [00:33:44] Speaker 10: I mean, I think that seems to be where we're packing in [00:33:47] Speaker 10: And I'm not sure that you're agreeing with that in response to one of my colleagues' questions. [00:33:53] Speaker 13: I don't think it's going to be relevant to that. [00:33:55] Speaker 13: I think that's looking at the relationship with the diligence of the petitioner and whether or not there's a failure of diligence on their part. [00:34:04] Speaker 13: And if so, they can't satisfy the extraordinary circumstances standard. [00:34:07] Speaker 13: where I think motive is particularly relevant, and it's not presented here, but in a lot of cases, for example, when you're talking about sickness in the family, for example, there may be a question of the severity, and there may very well be a credibility question of whether or not, you know, did they really, were they really unable to show, or did they maybe not show because they didn't have a great claim anyway, and that, you know, and that may be part of it. [00:34:31] Speaker 10: But what I was asking counsel is whether or not it's relevant [00:34:34] Speaker 10: to the notion that the characteristic, I think, of the drop-down, what I'm calling the drop-down list of examples in the statute is the characteristics of whatever the circumstance it is, it has to be sufficiently severe, but it also has to have really been beyond her control. [00:34:52] Speaker 10: It seems to me that's where motivation comes in, and sometimes I hear you agreeing with me and sometimes not, so I'm just trying to figure out what you think the test is. [00:35:00] Speaker 13: I think that motive, to the extent that it's relevant, will, [00:35:04] Speaker 13: Perhaps almost always are always be relevant to credibility questions. [00:35:08] Speaker 13: And credibility questions, I think, are overwhelmingly going to be directed at the severity factor rather than beyond the control. [00:35:15] Speaker 13: OK. [00:35:15] Speaker 03: Can I ask you about beyond the control? [00:35:17] Speaker 03: Yes. [00:35:17] Speaker 03: Because I guess I doubt that you really mean totally beyond the control. [00:35:20] Speaker 03: So here's a hypo. [00:35:21] Speaker 03: If someone is going to the court, they're across from the court, the light turns green, they have a walk signal, they start walking, and a car hits them, and they're injured. [00:35:31] Speaker 03: Put aside that injury is actually maybe one of the things in the statute But you could say they could have avoided that if they even though the light was green Really looked as someone racing through this red light and yet they got hit so it's it's in their control But they're also injured and probably meet the statute You don't really mean beyond your control fully. [00:35:50] Speaker 13: Do you I don't think it requires some superhuman level of diligence, but it certainly is [00:35:55] Speaker 13: requires that it not be a result of your negligence, for example. [00:36:00] Speaker 13: Where it's your own negligence that causes your failure to appear, that clearly falls short of what Congress has required. [00:36:06] Speaker 10: So is the idea that you think that she was negligent for not allowing enough time to get there, or is the idea... I mean, she's not negligent for causing the car accidents. [00:36:14] Speaker 10: Could you just tease out for me exactly why these two car accidents have caused... I mean, I think it's a two-hour delay, but that... If not, correct me. [00:36:22] Speaker 10: Exactly, what is it your position? [00:36:24] Speaker 10: Why are those car accidents not sufficiently severe, please? [00:36:27] Speaker 13: Your honor, I think there's two things at issue here that independently would justify it under the facts here. [00:36:33] Speaker 13: One is that this wasn't beyond her control because, as this court recognized in the Arradondo case and describing the Sharma case, where petitioners left quote [00:36:46] Speaker 05: Left a little margin for air and quote that doesn't that falls short of extraordinary circumstances She left at 645 and arrived at 1030 Would she have laid would she have had to leave at 4 a.m. [00:37:01] Speaker 05: To get there on time like how much how would she have had to allocate? [00:37:04] Speaker 13: To provide the margin of error that you think is sufficient well your honor I think the causal connection actually comes in here importantly in that respect because [00:37:13] Speaker 13: Here, even in petitioners' own telling, if their calculations were correct, it would have taken 90 minutes to reach the courthouse, and they would have had only 15 minutes to park, clear security, and find the courthouse. [00:37:24] Speaker 06: So let me tell you why I am troubled by your argument that the cushion of time is determinative of something that's beyond her control. [00:37:33] Speaker 06: So I think as Judge Koh was alluding to, [00:37:37] Speaker 06: here, and I think this came up in the argument with your friend on the other side's argument, which is that she was four hours late. [00:37:47] Speaker 06: So whether the cushion of time was 15 minutes or 30 minutes or an hour wouldn't have made any difference. [00:37:53] Speaker 06: If she had left two hours earlier, she still would have been late. [00:37:56] Speaker 06: So doesn't this really mean [00:37:58] Speaker 06: that the cushion of time really goes to diligence and that's sort of one of those factors. [00:38:03] Speaker 06: So you might look to whether or not she gave herself 15 minutes, an extra 15 minutes or an extra hour or two hours as part of sort of the overall totality, but it can't be determinative of something that is or is not beyond her control, right? [00:38:20] Speaker 13: Your honor, I disagree and let me explain why and if I may also circle back and finish answering Judge Coe's question as part of that. [00:38:28] Speaker 13: I think it goes to two parts of the standard here. [00:38:30] Speaker 13: I think one is that it was not beyond our control because of the lack of diligence here and I think it also has a causal relationship here. [00:38:39] Speaker 01: because even in her own telling, she only had- Hey, counsel, you say her lack of diligence. [00:38:43] Speaker 01: Is she supposed to be clairvoyant? [00:38:46] Speaker 01: How is she going to know that there's going to be two major accidents that's going to cause a two-hour delay? [00:38:51] Speaker 01: How is she supposed to know that beforehand? [00:38:53] Speaker 13: Well, your honor, I think that goes to the causal thing. [00:38:55] Speaker 13: And in answering that, maybe I can answer all three of your questions. [00:38:59] Speaker 13: I think here causally, she left herself only 15 minutes to park- What would have been the time she should have left? [00:39:06] Speaker 05: What was the sufficient cushion of time? [00:39:09] Speaker 13: It would have had to have been more than that because what happened here was even ordinary traffic would have caused her failure to appear. [00:39:16] Speaker 06: What if she had left only one hour before her hearing time, which by her own account wouldn't have been enough time to get there, but she got to the courthouse and the judge was still on the bench? [00:39:28] Speaker 06: Could, under our case law, [00:39:30] Speaker 06: She be Removed in absentia and and and forced to prove an exceptional circumstance Your honor I think that actually is the import of your case of your case law you are sitting on bonk But eridondo has a rather categorical holding what eridondo says is traffic and parking trouble our sir I'm not talking about traffic and parking Problems what I'm talking about in correct. [00:39:53] Speaker 06: We have the case Perez from 2008 that says that the agency cannot [00:40:00] Speaker 06: Remove somebody in absentia if they are late to their hearing and the judge is still on the bench and so the reason that I'm really troubled by this Focus on the amount of time is because it doesn't really matter If she had left with not sufficient amount of time and showed up at the courthouse and the judge was on the bench She would have her day in court if she had left two hours earlier she would have still missed her hearing because of the traffic and [00:40:27] Speaker 06: and the two major accidents on the road. [00:40:29] Speaker 06: So either you have this sort of like mismatch between when a person can be removed in absentia and be forced to prove an exceptional circumstance in one case but not the other based entirely on what you said. [00:40:42] Speaker 05: Can I just add on that? [00:40:42] Speaker 05: With Perez, why should the number of cases and perhaps the complication of the cases that the immigration judge has on calendar that day be anything that is within the control of the petitioner? [00:40:57] Speaker 05: If in this particular case, the IJ had an additional case or two and was still in the courtroom, she would not have to prove exceptional circumstances. [00:41:07] Speaker 05: How is it within her control, the number of cases and perhaps the complication of the cases that are on the judge's docket that day? [00:41:15] Speaker 13: Yes, Your Honor. [00:41:16] Speaker 13: I think there's two pending questions before me. [00:41:18] Speaker 13: I'm going to really try my best to get both of those answered if I can. [00:41:21] Speaker 13: The first is as to causally why it mattered, why she only left 15 minutes. [00:41:25] Speaker 13: That meant that if traffic was even 20% worse than her calculation, which is a thoroughly everyday occurrence of life, it is in no way at all extraordinary, she wouldn't have made it on time and she would have been in default. [00:41:37] Speaker 13: So the fact that traffic might have been extraordinarily bad. [00:41:39] Speaker 08: Well, that's not entirely true because the IJ would have still been on the bench. [00:41:43] Speaker 13: Well, Your Honor, I think that's the second part of the question too. [00:41:45] Speaker 13: But as to whether or not she would have arrived on time, even the most mundane, ordinary, slightly worse than the average traffic would have caused her to not be there. [00:41:56] Speaker 13: And so the nature of the traffic did not cause her failure to appear on time. [00:41:59] Speaker 13: Now, it's true that this court in Perez has adopted a sort of grace period where if you arrive while the IJ is still on the bench, that is directed at a very different question of whether or not you failed to appear or not. [00:42:12] Speaker 08: Well, you're asking whether she exercised reasonable due diligence as one of the factors we should consider. [00:42:17] Speaker 08: You know, if she is reasonable to leave only 15 minutes cushion, if you know, you know, you have this grace period, you know, I'd be hard pressed to say an attorney is not exercising reasonable due diligence just because they don't arrive at court two hours ahead of time. [00:42:36] Speaker 13: I understand that, Your Honor. [00:42:38] Speaker 13: While Perez certainly recognizes a grace period, there is no grace period on top of a grace period. [00:42:42] Speaker 13: This course has never recognized that. [00:42:44] Speaker 13: It's never recognized, well, you almost made the grace period. [00:42:50] Speaker 13: Here's what Justice Marshall has said about it. [00:42:52] Speaker 08: I don't think it's a grace period on top of a grace period if it's exceptional circumstances. [00:42:57] Speaker 08: And under that DIA's own precedent, exceptional traffic can be an exceptional circumstance. [00:43:03] Speaker 08: And so there's reasonable diligence plus an exceptional circumstance. [00:43:08] Speaker 13: Your Honor, she failed to appear. [00:43:09] Speaker 13: Thus, we are under the extraordinary circumstances. [00:43:12] Speaker 13: Perez carves out a limited exception to that. [00:43:14] Speaker 13: There is some arbitrariness built into that exception that this court has created. [00:43:19] Speaker 13: It does mean that whether or not people are subject to the stringent standard does turn somewhat on the vagaries of how many other cases are pending and whether someone's the first case of the day or the last case of the day. [00:43:29] Speaker 13: I'm sure this court has, you know, built that into its calculations. [00:43:34] Speaker 07: Is it statutorily based? [00:43:36] Speaker 13: No, Your Honor. [00:43:37] Speaker 13: It is a... Well, it purport... [00:43:41] Speaker 13: It purports to apply the statute, but in the government, in the view of the government, it does not have a statutory basis. [00:43:46] Speaker 05: Are you saying traffic, per se, can never be an exceptional circumstance? [00:43:49] Speaker 05: You're not, right? [00:43:50] Speaker 05: I mean, you cite a case of the BIA where they actually found that traffic was, in that instance, an exceptional circumstance. [00:43:57] Speaker 13: Well, Your Honor, this is a somewhat unusual circumstance because this court appears to have adopted a rather categorical rule. [00:44:03] Speaker 13: I mean, what it said in Narodondo, [00:44:05] Speaker 13: Is traffic and trouble finding parking standing alone? [00:44:07] Speaker 08: Do you think it should be categorical? [00:44:12] Speaker 13: What's that? [00:44:13] Speaker 08: Do you agree that it should not be categorical? [00:44:16] Speaker 13: We have not asked this court to overrule that. [00:44:19] Speaker 13: And so we're not asking this court to do it. [00:44:22] Speaker 13: Certainly. [00:44:22] Speaker 01: Council, I guess let me interrupt you. [00:44:23] Speaker 01: I'm sorry. [00:44:24] Speaker 01: But just when you reference the case, I want you to put the first word that you're missing out of Arradondo. [00:44:31] Speaker 01: It doesn't say traffic. [00:44:32] Speaker 01: What was the first word that it says? [00:44:35] Speaker 13: I don't have the case in front of me. [00:44:36] Speaker 01: Ordinary. [00:44:38] Speaker 01: Ordinary traffic is what it says. [00:44:40] Speaker 01: So when we talk about the case, that's the distinction here, that this was extraordinary. [00:44:47] Speaker 01: Isn't it the case that these two traffic examples are extraordinary? [00:44:55] Speaker 13: It's certainly worse than usual, Your Honor, but I think, as we've explained, it didn't play a causal role here, even ordinary traffic. [00:45:01] Speaker 03: But that's a different issue. [00:45:03] Speaker 03: So if we have to clarify our standards, I had not even understood you to be arguing that we should adopt a standard that per se traffic is never extraordinary. [00:45:14] Speaker 03: Are you saying that now? [00:45:16] Speaker 13: Your honor, that's not the position the BIA has taken. [00:45:18] Speaker 13: I do read this court's... I mean, what if we don't? [00:45:22] Speaker 03: I mean, what if we don't? [00:45:23] Speaker 03: I've talked about all these other factors and said ordinary traffic, if we had a per se rule that really, really bad traffic with a snowstorm or the highway collapses an earthquake, that isn't extraordinary. [00:45:34] Speaker 03: That's your position that we couldn't even say that such a snowstorm that's just shut down the traffic for days wouldn't be enough? [00:45:42] Speaker 13: Your Honor, as if you recognize, you are sitting on bonk, and if you don't read your case law that way, you should simply clarify that. [00:45:47] Speaker 11: And we recognize that... But, counsel, setting aside the case law, because now I'm getting thrown off, I had understood the government's position to be that in determining whether exceptional circumstances exist under the statute, we should consider the totality of the circumstances. [00:46:05] Speaker 11: Has that changed? [00:46:06] Speaker 13: No, Your Honor. [00:46:07] Speaker 06: And yet the agency in this case cited to Eridondo, which as you just indicated, you believe and I agree that Eridondo is a case of ordinary traffic that has no other factors to consider for the totality. [00:46:21] Speaker 06: And that is the case that was cited by both the IJ and the BIA here when it concluded that the petitioner [00:46:28] Speaker 06: did not experience an exceptional circumstance, right? [00:46:32] Speaker 06: That is a correct description of what the BI held. [00:46:34] Speaker 11: And so... So as a follow-up, and just to clarify the government's position, if the test is looking at the totality of the circumstances to determine whether the facts rise to exceptional circumstances, traffic... I'm not talking about the facts of this case, but extraordinary traffic issues could be one relevant consideration. [00:46:59] Speaker 13: is that fair to say i i think that's a fair characterization of the big question is in this case are these facts extraordinary i'd believe that's correct your honor and a redondo may throw a bit of a wrench in that because it has some language that might be read differently but i agree that i i don't know have talked about she failed to contact her lawyer and she uh... are going to didn't even talk about [00:47:21] Speaker 03: The only thing we need to talk about is traffic. [00:47:23] Speaker 03: It talked about a lot of things. [00:47:24] Speaker 03: It's like one factor of many. [00:47:26] Speaker 03: I'm not sure why you're reading it as a per se rule. [00:47:29] Speaker 13: Your honor, I don't think that's necessary here. [00:47:32] Speaker 13: So let me focus elsewhere. [00:47:34] Speaker 13: That is how we have read that case. [00:47:36] Speaker 13: But I don't think any of this turns on this. [00:47:38] Speaker 13: And I don't think I need to depend on that. [00:47:40] Speaker 13: I agree with you that it wasn't case dispositive in Eridondo. [00:47:43] Speaker 13: And I will also acknowledge the BIA has precedent that suggests that extreme traffic, at least when paired with [00:47:51] Speaker 13: both diligence and extreme weather could potentially suffice. [00:47:55] Speaker 05: And that BIA president is five years after Arredondo, right? [00:47:59] Speaker 13: That is correct, Your Honor. [00:48:00] Speaker 05: So clearly the BIA didn't understand Arredondo as imposing a per se rule. [00:48:06] Speaker 13: Your Honor, I'm not sure exactly how they read it, but I think it was clearly not an abuse of discretion here. [00:48:12] Speaker 03: And so... Do you think we should read the BIA decision in this case as applying a per se rule about traffic? [00:48:18] Speaker 13: Your honor, I don't think it necessarily was, and I don't think you need to do so. [00:48:22] Speaker 13: And so I think certainly the language here depended in part on the lack of diligence by the petitioner and such that it wouldn't have made a difference in the circumstance. [00:48:32] Speaker 07: Isn't that really the issue here? [00:48:34] Speaker 07: It seems to me this would be a different case. [00:48:37] Speaker 07: if she had not filed an affidavit saying that she was at fault, then we'd be able to have this whole discussion about whether this met it. [00:48:46] Speaker 07: But why, I mean, how can we find, I mean, would there be an abuse of discretion if there wasn't that statement in the affidavit that she submitted or the declaration that she submitted? [00:49:00] Speaker 13: I don't believe so, Your Honor, but this certainly is a radically easier case because of that declaration. [00:49:04] Speaker 13: That declaration makes very clear [00:49:06] Speaker 13: that there was a lack of diligence here and that had a causal, that caused the failure to appear in this instance. [00:49:11] Speaker 13: That even, and it also renders the fact that even if traffic was extraordinarily bad, typical traffic of the sort that Aerodondo recognized as not sufficient would have caused her to fail to appear. [00:49:22] Speaker 07: How do we, so what about extraordinary traffic? [00:49:26] Speaker 07: I mean this is, it's very different in Idaho than what it is in Seattle, than what it is in LA. [00:49:33] Speaker 07: How do we figure that out, and what discretion does the BIA have in that? [00:49:39] Speaker 07: Do we look at that as an abuse of discretion? [00:49:41] Speaker 07: Does the petitioner have to come in and say, well, you know, here's what my GPS said, and, you know, here's, I've looked at traffic studies, and 90% of traffic reaches within a 10% variant. [00:49:58] Speaker 13: what what point do we say this is beyond their control well you're on a couple responses that I mean there are certainly going to be these line drawing exercises and some of them may be tougher this this case is not remotely tough but there there may be tougher ones and what guides this court [00:50:16] Speaker 13: is it's all reviewed under an abusive discretion standard. [00:50:18] Speaker 13: So there will be a bound of reasonableness within which BIA will be upheld. [00:50:23] Speaker 13: There won't be bright line or perfect rules of, you know. [00:50:26] Speaker 06: But we have to know that the agency conducted that analysis, right? [00:50:32] Speaker 06: There has to be some indication that those factors were considered in [00:50:37] Speaker 06: making the determination as to whether one particular incident and one set of facts and circumstances are exceptional compared to another set, right? [00:50:47] Speaker 06: So here, I mean, I think as you conceded, the BIA cites to a case that you read to be a per se rule of unexceptionality for traffic. [00:51:00] Speaker 06: It is a case that has no other factors and there's nothing in the record [00:51:04] Speaker 06: here in the BIA or IJ's decision that tells us that they grappled with the other parts of the declaration, including the photos, the news alert, the statements about meeting with the DHS officers in the past, the fact that her minor children would be separated from their father. [00:51:23] Speaker 06: There's a letter from him attached to the motion to reopen. [00:51:26] Speaker 06: How do we know that those things were all considered? [00:51:29] Speaker 13: Several responses to that, Your Honor. [00:51:31] Speaker 13: I think, as an initial matter, the way that looked at Eridondo could be viewed in different strengths. [00:51:36] Speaker 13: I don't think that the DIA's opinion relies on the sort of maximalist view of Eridondo that may have been troubling this court. [00:51:42] Speaker 13: I think it relied on a general principle that traffic as a general matter will not constitute extraordinary circumstances. [00:51:48] Speaker 13: As to the loss of derivative benefits or the potential loss of derivative benefits for the minor children, that is not even alleged to have caused the failure to appear and thus [00:51:58] Speaker 13: does not have any relevance to the stringent standard that Congress has set. [00:52:02] Speaker 13: It cannot be part of the analysis because it does not satisfy the causal relationship. [00:52:06] Speaker 13: And I think that's the key thing why we... It can't even provide relief, right? [00:52:10] Speaker 07: What's that? [00:52:11] Speaker 07: It can't even provide ultimate relief. [00:52:13] Speaker 07: Even if we were looking at unconscionability, my understanding is the BIA looked at that and said the father's immigration status has nothing to do with their ability because they entered, because of how they entered the United States. [00:52:30] Speaker 13: That's absolutely correct, Your Honor, and that was also a part of the BIA's decision. [00:52:33] Speaker 13: The BIA explained that under Section 1255, [00:52:36] Speaker 13: because they entered the country unlawfully and without inspection, they are not eligible for adjustment of status. [00:52:42] Speaker 13: So even if there were a potential loss of these benefits theoretically at issue and that was theoretically relevant to the extraordinary circumstances standard, which it is not, that simply isn't a factor that's present here because they're not eligible for it given their unlawful entry into the United States. [00:52:57] Speaker 05: Okay, let me give you a traffic hypo. [00:52:59] Speaker 05: So there is a first crash that closes traffic from 4.30 a.m. [00:53:05] Speaker 05: to 9 a.m. [00:53:06] Speaker 05: And then just as they clear that first crash at 9 a.m., there's a second crash that involves multiple vehicles that also then closes, you know, closes the highway and, you know, multiple people are injured. [00:53:23] Speaker 05: They have to extract someone with the jaws of life. [00:53:25] Speaker 05: So when you have multiple hours of the lanes completely closed, would you consider that to be beyond [00:53:36] Speaker 05: ordinary traffic delay a congestion when you're closing on a business day freeways for multiple hours Yeah, yeah between 430 a.m. [00:53:47] Speaker 05: And it doesn't say when it opened up, but you know the second accident was at 9 a.m. [00:53:53] Speaker 13: Yes, your honor and let me explain how I think that would play into the analysis so I think what you've described is extraordinary and unusual and I think that is the facts that those are the facts here right and [00:54:04] Speaker 13: I understand, as a hypothetical, I understand your hypothetical to at least be very close to the facts presented here. [00:54:11] Speaker 13: I think the way that would come in is if the alien in question had left a sufficient buffer that encountering merely bad traffic wouldn't have prevented them from getting there on time. [00:54:22] Speaker 13: But something truly extraordinary of a circumstance that is like, you know, truly, truly rare. [00:54:29] Speaker 13: then that would present a very different set of circumstances. [00:54:32] Speaker 13: Perhaps that might satisfy the BIA standard. [00:54:36] Speaker 08: This comes back to you. [00:54:38] Speaker 08: You're saying the 15 minutes was not a buffer, enough of a buffer, even though the traffic was highly unusual and exceptional. [00:54:51] Speaker 08: What in your view would have been enough, if not 15 minutes, as a reasonable person trying to arrive somewhere on time? [00:55:01] Speaker 08: And I'll be interested in the answer, because I'll be expecting every council from the government to be arriving that much ahead of their scheduled appearances. [00:55:15] Speaker 13: Your Honor, I think this [00:55:17] Speaker 13: The facts of this case aren't even remotely close, so let me answer that first and then perhaps venture into some hypothetical land. [00:55:25] Speaker 13: Here, traffic that was even 20 percent worse than her calculations would have caused her to not appear. [00:55:30] Speaker 13: That is not remotely close to something that's the rule. [00:55:33] Speaker 06: But I think you said that here, you agreed with Judge Coe that that hypothetical, the facts, [00:55:40] Speaker 06: constitute something that seems exceptional, that they're out of the ordinary. [00:55:43] Speaker 06: It's not 20% more. [00:55:45] Speaker 06: This is something that is different than that. [00:55:47] Speaker 06: It's exceptional. [00:55:48] Speaker 06: And then I think you said, and it may have been the cause for her not to appear on time at the hearing, but still you go back to how much time she left herself as sort of being the determinant factor at the end of the day, hindsight being 20-20, that we have to find that that's not exceptional. [00:56:09] Speaker 06: Is that what you're saying? [00:56:10] Speaker 13: Your Honor, I disagree with the premise of the question that we're agreeing that the causal is established there. [00:56:16] Speaker 13: What we're saying in particular on these facts is if your planning resulted in merely bad but not extraordinarily, you know, unprecedentedly bad traffic would have caused you to not appear, then the fact that traffic might have been extraordinarily bad does not have the causal relationship that Congress mandates. [00:56:34] Speaker 02: So when did you leave from D.C. [00:56:36] Speaker 02: to get to court today at 2.30? [00:56:39] Speaker 13: I left last night your honor on a seven o'clock flight and I candidly that What that made me feel a little uncomfortable, but I had several backups planned and we're just glad that judge sung isn't gonna sanction you [00:56:54] Speaker 08: why we have to see what time he left from his hotel to get to court and how much time he left to get through San Francisco traffic to account for potential accidents or street closures around the court building and whether there is an extra long line going through security. [00:57:11] Speaker 13: Your Honor, I deliberately stayed at a hotel close to this courthouse, although not quite that close. [00:57:16] Speaker 07: I mean, doesn't this all come back? [00:57:19] Speaker 07: These are all interesting hypotheticals. [00:57:21] Speaker 07: But doesn't it all come back to a declaration that she submitted where she said she was a fault? [00:57:26] Speaker 07: Like, how could the BIA abuse its discretion when they relied [00:57:33] Speaker 07: If she hadn't have said that, maybe we could have all these hypothetical discussions. [00:57:37] Speaker 07: But she said, I'm sorry, I was at fault. [00:57:40] Speaker 04: Can I ask you, what if she had said, had left the night before? [00:57:46] Speaker 04: and still ran into problems traffic wise between the court where she was staying in the courthouse and she said I'm sorry I should have left two days or maybe earlier the next day. [00:58:00] Speaker 04: Does her admission that she was at fault for not coming in 48 hours earlier rather than 24 hours earlier enter into it or do we look to see [00:58:13] Speaker 04: While if she would have left at this time, it seems reasonable she would have gotten there but for the extraordinary traffic circumstances. [00:58:23] Speaker 13: Your honor, in that hypothetical, I don't think her admissions would be dispositive. [00:58:26] Speaker 13: In the case we have here, she's essentially admitting to negligence. [00:58:29] Speaker 13: In the hypothetical you have posed, she's admitting to extraordinary diligence. [00:58:33] Speaker 08: There's something besides the fact that she said, I'm sorry, because it's a matter of human nature. [00:58:38] Speaker 08: I think we often apologize for things that are not actually our fault. [00:58:42] Speaker 01: In other words, is it contrition versus admission? [00:58:46] Speaker 13: Your honor, I think it is both here. [00:58:48] Speaker 13: I think the contrition may have been reflexive. [00:58:51] Speaker 13: It may have been genuine. [00:58:52] Speaker 13: I don't think it has any relevance here. [00:58:54] Speaker 13: I think the admission as the underlying fact is just positive here. [00:58:57] Speaker 07: Isn't it a question whether the BIA abused its discretion in taking that? [00:59:03] Speaker 07: Regardless of what we would have decided, were they abused? [00:59:07] Speaker 07: I mean, in the chief's example, it seems to me [00:59:12] Speaker 07: It would be an abuse of discretion to say, I'm going to rely on that, even though she left two days earlier. [00:59:19] Speaker 07: But here, I mean, it was 15 minutes. [00:59:22] Speaker 07: You could have had a parking problem. [00:59:25] Speaker 07: Is that an exceptional circumstance if we have a parking problem? [00:59:29] Speaker 04: My point is, I don't know how much we put into the fact that she apologized. [00:59:33] Speaker 04: That's my point. [00:59:34] Speaker 04: So then if we don't put as much emphasis or any on that, then what are we looking at? [00:59:41] Speaker 04: And that was what I was trying to. [00:59:42] Speaker 04: But before, I just want to ask you. [00:59:44] Speaker 04: So you agree, it seems like that's what you're saying in your papers, that we look at the totality of the circumstances in making this determination. [00:59:54] Speaker 04: Is that correct? [00:59:55] Speaker 13: That's correct, Your Honor, although I think petitioners misapprehend the nature of the totality of the circumstances test. [01:00:01] Speaker 13: What a totality means is that if there's any evidence that has relevance to the actual standard established by Congress, you can consider it. [01:00:09] Speaker 13: So there's not sorts of relevant evidence that are categorically out of bounds. [01:00:13] Speaker 13: However, it does not mean that it is an equitable free-for-all that you can consider unconscionable results untethered from the actual standard that Congress has set. [01:00:21] Speaker 13: So in particular here, the potential loss of derivative benefits, which was more hypothetical than real here, cannot be considered because it didn't have a causal relationship. [01:00:30] Speaker 13: And if I might, that is the very important aspect to the government. [01:00:33] Speaker 08: You would also agree then the fact that she did not show eligibility for benefits also has no relevance to the causal relationship. [01:00:42] Speaker 13: I agree with that, Your Honor, and I think the BIA was setting that forward as a sort of alternative holding. [01:00:47] Speaker 08: The traffic congestion coupled with the respondent's explanation that she miscalculated the time it would take to arrive at the court in a lack of showing that the immigration judge was still on the bench. [01:00:58] Speaker 08: Sorry, I lost it. [01:01:01] Speaker 08: Okay. [01:01:01] Speaker 08: In this case, it was the respondent's first hearing. [01:01:04] Speaker 08: She was not mistaken regarding the time and she has not demonstrated she would have been entitled to relief had she appeared. [01:01:11] Speaker 13: Your honor, there's other discussion in that same opinion, though, that I think recognize- Not presented as an alternative. [01:01:17] Speaker 08: It's presented as a factor. [01:01:19] Speaker 07: Your honor, I think reading- In one sentence. [01:01:21] Speaker 07: In that sentence- It's what we required, right? [01:01:24] Speaker 07: I mean, we required, at the time, a look of unconscionability. [01:01:29] Speaker 13: Yes, Your Honor, I mean certainly there was dicta in multiple of this court's precedents that would have required them to do so, so it would be a little strange for this court to fault the BIA for following this court's precedents as they existed. [01:01:42] Speaker 13: But I think that underscores too the most important aspect of this case to the government and why we sought rehearing on Bonk. [01:01:48] Speaker 13: It is that consideration of unconscionable results untethered from the textual standard that Congress has adopted [01:01:56] Speaker 13: that is particularly problematic, and that we would ask this court to repudiate dicta in its cases that seems to have suggested that much, and return it to the actual textual standard that Congress has adopted. [01:02:06] Speaker 04: Thank you. [01:02:08] Speaker 13: Thank you, Your Honors. [01:02:18] Speaker 04: Council went over a minute 30, so I'll give you a total of two minutes and 30 seconds. [01:02:23] Speaker 09: Thank you. [01:02:24] Speaker 09: So petitioner says that her calculation of time to arrive at the court was wrong because she didn't anticipate these two accidents. [01:02:32] Speaker 07: The government has now... Let me just parse out a couple of questions on this. [01:02:36] Speaker 07: We've heard it pitched as this was an apology. [01:02:40] Speaker 07: She said, the main reason that I did not appear is because there was heavy traffic on the way to the court and because of my miscalculation of time of how long it takes to arrive to the court. [01:02:52] Speaker 07: Is that an apology? [01:02:54] Speaker 09: I think the discussion of the apology was focused on her apology on page 34. [01:03:00] Speaker 09: But the portion that Your Honor's quoting says, because of my miscalculation of how long it takes to arrive at court, there were two major accidents on the way to court that morning. [01:03:11] Speaker 09: And as a result, we were going very slow. [01:03:13] Speaker 07: You missed a period. [01:03:16] Speaker 07: She says, because of my miscalculation of time of how long it takes to arrive to the court. [01:03:20] Speaker 01: Well, but later on in the next paragraph, she says, because of the accidents, we were late. [01:03:25] Speaker 01: She also says that in the next paragraph, correct? [01:03:28] Speaker 10: Yes, she does. [01:03:30] Speaker 10: Am I right that she left at 6.45 for an 8.30 hearing? [01:03:33] Speaker 10: Yes. [01:03:34] Speaker 10: She got there at 10.30? [01:03:36] Speaker 10: Yes. [01:03:36] Speaker 10: Right. [01:03:36] Speaker 10: So it took her three hours and 45 minutes to get there? [01:03:39] Speaker 09: Yes. [01:03:40] Speaker 09: All right. [01:03:40] Speaker 09: So it took her nearly between two and three times what it should have taken. [01:03:44] Speaker 09: She was two hours late. [01:03:45] Speaker 10: Yes. [01:03:46] Speaker 09: She got there at 10.30. [01:03:47] Speaker 09: She needed to be there by 8.30. [01:03:49] Speaker 09: Yes. [01:03:49] Speaker 10: Okay. [01:03:50] Speaker 10: Thank you. [01:03:51] Speaker 09: Now, the government has largely not discussed the two children as well. [01:03:56] Speaker 09: It says that they're virtually irrelevant because they haven't shown their eligibility for relief. [01:04:00] Speaker 09: But there can be no dispute that the children were not responsible for any calculation of the time to arrive. [01:04:06] Speaker 10: How did they factor into the statutory standards? [01:04:09] Speaker 09: So the children do have a right to be heard at the hearing. [01:04:13] Speaker 09: They do have due process rights as well. [01:04:15] Speaker 09: I think it's relevant to considering whether there are exceptional circumstances, whether there are children. [01:04:20] Speaker 10: I think we started with the exceptional circumstances have to have caused her to fail to appear. [01:04:25] Speaker 10: Yes. [01:04:26] Speaker 10: Okay, so how do you get the children into that first step of the test? [01:04:30] Speaker 09: So I think consistent with the discussion that your honor was having with my friend on the other side, that the children go in part to the motivation for appearance and assessing the diligence that they showed. [01:04:42] Speaker 10: That's the third part, but that's not the causation standard. [01:04:44] Speaker 10: So I wasn't trying to give you a hard time. [01:04:46] Speaker 10: I'm just trying to make sure that I understand your analysis. [01:04:48] Speaker 10: Thank you. [01:04:49] Speaker 09: But so I think the children are relevant in that way. [01:04:53] Speaker 09: And I just want to stress that the government acknowledges here that the traffic was extraordinary. [01:04:58] Speaker 09: The government continues to cite Sharma and Arradondo, but those two cases are entirely distinguishable from this one. [01:05:05] Speaker 09: And that's my time, so I will leave it with that. [01:05:08] Speaker 04: Thank you very much, Ms. [01:05:10] Speaker 04: Munyon, Mr. Ensign. [01:05:11] Speaker 04: I really appreciate your argument presentations here today. [01:05:15] Speaker 04: The case of Claudia Elena Montejo Gonzalez versus Pamela Bondi is now submitted, and we are adjourned. [01:05:21] Speaker 04: Thank you. [01:05:23] Speaker ?: All rise. [01:05:25] Speaker ?: This court decision stands adjourned.