[00:00:03] Speaker 04: The United States Court of Appeals for the Ninth Circuit is now in session. [00:00:29] Speaker 01: Thank you. [00:00:29] Speaker 01: And I think I see everyone's camera live. [00:00:33] Speaker 01: Good morning, everyone. [00:00:35] Speaker 01: Welcome to the Ninth Circuit Court of Appeals. [00:00:37] Speaker 01: Thank you for joining us in this special session we're conducting today. [00:00:42] Speaker 01: Judge Graber and I want to welcome and thank our colleague from Ohio, Judge Suhari. [00:00:46] Speaker 01: Thank you very much for making the time in your schedule to be here with us. [00:00:51] Speaker 01: We have one case for argument today. [00:00:53] Speaker 01: I believe I see both counsel on the monitors. [00:01:00] Speaker 01: For both counsel, just give me the thumbs up just to confirm you can hear what I'm saying. [00:01:04] Speaker 01: Okay, and with that, you both can see the clock. [00:01:10] Speaker 01: And council, you may proceed when ready. [00:01:17] Speaker 03: Thank you, your honor. [00:01:18] Speaker 03: May it please the court, Tom Perkinson, and I'm here to argue on behalf of Mr. Lemus, and I'd like to... Five minutes. [00:01:28] Speaker 03: I'm not hearing you, sir. [00:01:30] Speaker 01: Oh, you can't hear? [00:01:31] Speaker 01: Yeah, you kind of faded there for a second. [00:01:33] Speaker 01: Let's try that again. [00:01:36] Speaker 03: They have pleased the court. [00:01:42] Speaker 03: My name is Tom Perkins. [00:01:44] Speaker 03: I'm here to represent Mr. Lemus, and I'd like to reserve five minutes. [00:01:49] Speaker 01: You know what, if we could stop the clock real quick. [00:01:54] Speaker 01: So Mr. Perkins, it's a little spotty, honestly. [00:01:58] Speaker 01: The audio seems to be coming in and out. [00:02:00] Speaker 01: So yeah, try it again. [00:02:02] Speaker 01: That sounds better. [00:02:04] Speaker 03: Does it sound better? [00:02:05] Speaker 03: So good morning. [00:02:07] Speaker 03: May I please the court? [00:02:08] Speaker 03: This is Tom Perkins. [00:02:09] Speaker 03: Is that good? [00:02:10] Speaker 03: Much better. [00:02:10] Speaker 01: Yeah. [00:02:11] Speaker 01: So council, you got it. [00:02:12] Speaker 01: You may proceed. [00:02:13] Speaker 03: Thank you, your honor. [00:02:15] Speaker 03: May I please the court? [00:02:16] Speaker 03: My name is Tom Perkins and I represent Mr. Lemus and I'd like to reserve five minutes for rebuttal if I may. [00:02:22] Speaker 01: You got it. [00:02:23] Speaker 03: I would like to start out just talking about the jurisdiction on the motion to reopen. [00:02:29] Speaker 03: It is a petitioner's petition position. [00:02:34] Speaker 03: that the court does have plenary jurisdiction because 8 USC 1252 does not bar jurisdiction over the motion to reopen at all. [00:02:43] Speaker 03: A motion to reopen is not a decision on discretionary relief. [00:02:49] Speaker 03: It's a decision on whether to grant a new hearing at which such an application could be made. [00:02:55] Speaker 03: If we look at, you have to look at both these statutes. [00:03:00] Speaker 03: In the recent Supreme Court case, Buarfa, [00:03:04] Speaker 03: And in Patel, they're looking at the INA and saying, okay, here's the statute that's authorizing the agency to take this action. [00:03:14] Speaker 03: Is that statute implicated in 1252 and the bars to review at 1252A to B? [00:03:22] Speaker 03: So if we do that for our motion to reopen statute, it's at 1229C7 and it does not [00:03:32] Speaker 03: make anything discretionary, this is a timely motion to reopen. [00:03:36] Speaker 03: So there's no, there's no aspect that assigns a discretionary function to the attorney general. [00:03:45] Speaker 03: And then if we look at 1252, it says AB, it has our list, our famous list of things that we cannot review, including Nacar consolation, but [00:04:00] Speaker 03: This decision is not a decision on the car cancellation. [00:04:03] Speaker 03: It's a decision on whether to reopen. [00:04:05] Speaker 03: And in fact, you can look at the agency decisions. [00:04:10] Speaker 03: They tell you what the application is before they start their analysis. [00:04:16] Speaker 03: And on this reopening decision, it's page two of the consolidated record. [00:04:22] Speaker 03: It says, what is the application at the very top? [00:04:25] Speaker 03: and the application is reopening. [00:04:27] Speaker 03: The application is not NACARA cancellation. [00:04:30] Speaker 03: The application is reopening. [00:04:33] Speaker 03: So reopening is not listed in the list 1252A to BI, and the reopening statute does not make the decision on reopening discretionary. [00:04:49] Speaker 03: So under KUKANA, there's no, [00:04:55] Speaker 03: there's no bar to plenary review of the motion to reopen. [00:05:01] Speaker 03: And so I think that the court can get to, from the motion to reopen, a direct review of the credibility finding, because we're not dealing with a denial of discretionary relief, but the credibility finding was dispositive to the motion to reopen. [00:05:20] Speaker 03: And so that's a way to directly review it, [00:05:24] Speaker 03: as a question of fact, the way that it was briefed in the initial opening brief from when the case started. [00:05:34] Speaker 03: So I do think that the thing is that you have to, you can't, the court should not be trying to decide, well, what should we do? [00:05:48] Speaker 03: How should we review this? [00:05:50] Speaker 03: The court should just interpret these statutes. [00:05:52] Speaker 03: So that's what happened. [00:05:53] Speaker 03: In Buarfa, and it shouldn't be, oh, well, Nakara means we can't review, because that's not the way it should work. [00:06:02] Speaker 03: It should be, does the statute prescribe jurisdiction or not? [00:06:07] Speaker 03: In Buarfa, the Supreme Court was clear. [00:06:10] Speaker 03: There, the issue was a good-faith marriage. [00:06:14] Speaker 03: And in that case, the statute which authorized the agency action was discretionary. [00:06:22] Speaker 03: So the court said, you can't review that because the action came from a discretionary statute. [00:06:29] Speaker 03: And the courts specifically said, had this arisen under the other statute, the statute that is not discretionary, then you could review it. [00:06:40] Speaker 03: So it's not about certain subject matters cannot be reviewed. [00:06:46] Speaker 03: It's what is the statute that authorizes that agency action here? [00:06:51] Speaker 03: The statute that authorized the motion to reopen decision, page two of the consolidated record, was not Makara cancellation. [00:07:00] Speaker 03: It was the reopening statute, which does not implicate the bars at 1252A to B. And the same thing in Patel. [00:07:11] Speaker 03: Patel was the same issue. [00:07:13] Speaker 03: And the Supreme Court there specifically said that, yes, OK, so you have this [00:07:20] Speaker 03: this false claim to citizenship, we're not gonna review it because this is from a decision on adjustment of status. [00:07:30] Speaker 03: But had it been, had this agency action in finding the false claim to citizenship come under the inadmissibility statute, which is not a discretionary statute, then yes, it would be directly reviewable. [00:07:47] Speaker 03: And so you have the same subject matters in Patel, [00:07:50] Speaker 03: It was a false claim to citizenship in Buarfa. [00:07:55] Speaker 03: It was a good faith marriage that either are or are not reviewable based upon only what is the statute that authorized the agency to make that decision. [00:08:06] Speaker 03: The agencies, they don't have freestanding, freewheeling authority to do anything that has to do with immigration. [00:08:13] Speaker 03: They're bound by statutes. [00:08:14] Speaker 03: They have to do, they can only act within the confines of the INA. [00:08:21] Speaker 03: I think that that is the way the court should look at the jurisdictional issue under the motion to reopen and all issues then should be reviewable through the motion to reopen, even though admittedly the credibility finding as a fact finding cannot be reviewed under the 2018 petition for review, the first BIA decision that [00:08:50] Speaker 03: Patel clearly says you can't review it. [00:08:52] Speaker 03: However, even there, under 1252 A to D, where we're allowed review of legal and constitutional issues, that credibility finding, the agency didn't do the work that it needed to do for an adequate credibility finding. [00:09:14] Speaker 03: It didn't consider that [00:09:18] Speaker 03: There were all sorts of inconsistencies in that preliminary hearing and the police report with the same witness saying different things at different times. [00:09:27] Speaker 03: It didn't consider how Lemus was actually consistent with what the deputy district attorney said at the probation hearing. [00:09:35] Speaker 03: And so it didn't consider all factors. [00:09:38] Speaker 03: That's a legal error. [00:09:40] Speaker 03: So even under Patel, that legal error can be remanded to the agency, sent back to the IJ. [00:09:47] Speaker 03: IJ, you need to do this over again. [00:09:49] Speaker 03: This credibility finding was not good enough. [00:09:52] Speaker 03: That's a legal error. [00:09:53] Speaker 03: There's also a constitutional aspect to that credibility finding. [00:09:57] Speaker 03: The agency said, you didn't testify consistently with what Lopez said at the preliminary hearing or in the police report. [00:10:06] Speaker 03: Okay, well, he didn't say the same things in those two documents. [00:10:11] Speaker 03: And the DDA is also not consistent with [00:10:15] Speaker 03: What the deputy district attorney said isn't consistent. [00:10:18] Speaker 03: So there's no way under the standards that the agency set, you've got to testify consistently with the police report and the preliminary hearing. [00:10:27] Speaker 03: There's no way, Lemus, anybody could do that. [00:10:29] Speaker 03: It's an impossible task. [00:10:31] Speaker 03: That's fundamentally unfair. [00:10:33] Speaker 03: So there we have a constitutional issue, which is another reason. [00:10:37] Speaker 03: Send it back to the IJA. [00:10:38] Speaker 03: This credibility finding was not adequate. [00:10:41] Speaker 03: You need to do it over and see what happens from there. [00:10:46] Speaker 03: I think that the first IJ, the IJ that actually heard the case, that's another thing that the agency decision didn't take into account how that IJ was viewing Lemus' testimony. [00:11:01] Speaker 03: That IJ said, I'm not sure about him. [00:11:04] Speaker 03: I'm going to give him the benefit of the doubt when talking about his problems testifying. [00:11:10] Speaker 03: And that never made it into the agency decision either. [00:11:13] Speaker 03: So there's another factor that wasn't considered. [00:11:16] Speaker 03: which goes to the legal error. [00:11:18] Speaker 03: So I do think that the credibility finding is kind of the linchpin to Mr. Lemus' prevailing on the Nakara, which is his best relief and that there are legal constitutional ways and the court does have jurisdiction to review it as a fact matter under the petition for review of the Rio. [00:11:44] Speaker 02: excuse me for interrupting, questioned about Nakara. [00:11:47] Speaker 02: Shouldn't we dismiss that claim because it was forfeited in your direct petition? [00:11:54] Speaker 03: Well, at the time that we briefed that, the law was clear that this was a discretionary determination which the court had no jurisdiction to review. [00:12:05] Speaker 03: So here we have a change in the law. [00:12:08] Speaker 03: Wilkinson overruled the binding Ninth Circuit case. [00:12:15] Speaker 03: case law that forbade review of that. [00:12:17] Speaker 03: So I think that it isn't forfeited because once Wilkinson came out, it was a change in the law. [00:12:27] Speaker 03: Also, I think both parties have, both parties briefed the hardship issues. [00:12:35] Speaker 03: So that's an issue that the court can reach as well. [00:12:39] Speaker 03: I don't think it would prejudice either party. [00:12:42] Speaker 03: I don't think it would prejudice the government to hear that argument from the respondent. [00:12:56] Speaker 03: Now, the other, there are a lot of issues. [00:13:03] Speaker 03: I don't know if there are any in particular the court would like to hear responding on. [00:13:08] Speaker 01: I do have a kind of a, I'll call it a step back question. [00:13:12] Speaker 01: What I mean by it is this, is that, look, your client is, I don't wanna say elderly, but your client's not a spring chicken anymore. [00:13:21] Speaker 01: And he's got some real mental health issues as I understand. [00:13:27] Speaker 01: Have there been any attempts, and I know we have a new administration, I think new administration is kind of sorting out how it wants to deal with some of these cases. [00:13:34] Speaker 01: I'm curious if there have been any attempts recently to try to mediate or work something out in this case in light of some of the equities in this case, I'll just put it that way. [00:13:53] Speaker 01: Have there been none that have been successful or have there just been none at all? [00:14:01] Speaker 03: I don't think that there have been any. [00:14:11] Speaker 03: Yeah, so there are other options that could occur later on, but yeah, I'm not aware that we attempted to mediate the case or anything like that. [00:14:27] Speaker 03: I don't know if Ms. [00:14:28] Speaker 03: Workman has a different. [00:14:30] Speaker 03: recollection. [00:14:31] Speaker 00: Would your client be willing to engage in mediation through our mediation office if that were something that the government would be willing to do? [00:14:44] Speaker 03: Certainly, yes. [00:14:47] Speaker 03: I mean, he definitely would be. [00:14:52] Speaker 03: His criminal record is probably what [00:14:57] Speaker 03: made us not pursue that route too assiduously. [00:15:04] Speaker 03: But again, he's definitely willing to pursue that route if it's available, for sure. [00:15:17] Speaker 01: I don't want to make light of his criminal history. [00:15:22] Speaker 01: It does bother me. [00:15:22] Speaker 01: I'm not going to lie. [00:15:24] Speaker 01: But it is, if I recall, it's pretty old. [00:15:28] Speaker 03: Yes, so the most serious crime maybe is the gun crime and that's from 88 and then the domestic violence was from 93. [00:15:39] Speaker 03: When you look at those, the sentences are also on the minor side. [00:15:44] Speaker 03: He didn't go to prison. [00:15:46] Speaker 03: I think the sentence was suspended. [00:15:48] Speaker 03: It was a one-year sentence and then it was reduced to 364 but I think he just did probation and [00:15:56] Speaker 03: for the other one, it was a 30 day sentence. [00:15:58] Speaker 03: So it has been a long time since he had any trouble with the law. [00:16:03] Speaker 03: So since 97, I believe was the last arrest. [00:16:08] Speaker 03: And he was also undiagnosed presumably at that time in terms of the mental illness. [00:16:17] Speaker 03: In terms of the crime, whether that's a crime of moral turpitude, I think that it's not because [00:16:25] Speaker 03: There the court needs to look at the elements and the elements don't require any harm to any person. [00:16:34] Speaker 03: I think that with Loper-Brite, this court's decision in Nunez is the proper standard and we don't have, this is not like an assault crime. [00:16:48] Speaker 03: In an assault crime, the main thing that's happening is that someone's being attacked or threatened with attack. [00:16:55] Speaker 03: And you add a gun to that, that's very serious. [00:16:57] Speaker 03: This, the, the gravamen here is shooting a gun in the wrong place. [00:17:01] Speaker 03: Shooting a gun is not in itself some horrible act. [00:17:04] Speaker 03: It's, it's a major lapse of judgment, but it's not, it's not the same as attacking someone. [00:17:11] Speaker 03: So the, the assault of cases and the cases where there's an element of putting someone in danger, they don't apply to 246 of the California penal code. [00:17:22] Speaker 03: And that's why I think that that's not a crime of moral turpitude. [00:17:26] Speaker 03: Also, since the court under Loper-Bright no longer has to defer to the agency, I would encourage the court to go back to the classic definition of a crime of moral turpitude as a matter of statutory interpretation. [00:17:42] Speaker 03: That definition existed before the INA was enacted in 1952. [00:17:47] Speaker 03: So that should be the definition that applies and not the agency definition [00:17:52] Speaker 03: still the Trevino at this point. [00:17:54] Speaker 03: I don't know if it's necessary to overrule that because of Loper-Brite, but moving forward, that standard has always seemed wrong to me. [00:18:04] Speaker 03: Reprehensible covers every crime. [00:18:06] Speaker 03: So it's not a useful way to look at the case. [00:18:18] Speaker 01: You had mentioned you wanted to reserve some time for rebuttal. [00:18:21] Speaker 03: Yes. [00:18:22] Speaker 03: Oh, I'm sorry, Your Honor. [00:18:23] Speaker 01: Yeah, that's all right. [00:18:23] Speaker 01: No problem. [00:18:24] Speaker 01: I want to ask my colleagues, Judge Graber, Judge Suhari, unless you have any questions. [00:18:29] Speaker 00: Not at this point, no. [00:18:30] Speaker 00: Okay. [00:18:32] Speaker 01: Let's go ahead and reserve then if we could. [00:18:34] Speaker 01: And if I could ask Ms. [00:18:35] Speaker 01: Ruiz to give him four minutes for rebuttable, round up to four. [00:18:43] Speaker 01: Great. [00:18:43] Speaker 01: Thank you. [00:18:49] Speaker 01: All right. [00:18:51] Speaker 01: Ms. [00:18:51] Speaker 01: Workman, when you're ready. [00:18:54] Speaker 05: May it please the court, Claire Workman for the attorney general, to narrow down the issues that this court must decide, starting with the motion to reopen denial in the 2019 PFR. [00:19:07] Speaker 05: First, the court lacks jurisdiction to review all of the factual and discretionary challenges to the board's denial of reopening for the NCARA cancellation application. [00:19:21] Speaker 05: But the court can review and should uphold the denial of reopening regarding asylum and related protection. [00:19:30] Speaker 05: Regarding the 2018 PFR, first, Petitioner initially acknowledged that he is not seeking direct review of the NCAR application. [00:19:43] Speaker 05: And therefore, he forfeited review of that claim. [00:19:47] Speaker 05: That was in his reply brief at page 3, the original reply brief. [00:19:52] Speaker 05: If this court nevertheless reaches NAPARA, it lacks jurisdiction over the independently dispositive denial in the exercise of ultimate discretion, where petitioner raises no valid constitutional or legal challenges. [00:20:09] Speaker 00: Counsel, I'd like to ask you about the question whether the BIA abused its discretion by not returning this case to an immigration judge in view of indicia of incompetency under matter of MAM. [00:20:29] Speaker 00: It seems to me that there was overwhelming, compelling evidence of potential incompetency. [00:20:38] Speaker 00: This is a person who had severe head trauma, severe alcohol abuse. [00:20:44] Speaker 00: He was diagnosed with dementia, anxiety, depression, and memory disturbances. [00:20:50] Speaker 00: Witnesses testified that he was significantly [00:20:53] Speaker 00: forgetful and he had mental problems. [00:20:58] Speaker 00: He'd been declared unable to work due to a disability. [00:21:02] Speaker 00: His testimony, the IJ at one point said, I think he must be guessing because of memory and mental illness problems. [00:21:10] Speaker 00: It seems to me that this clearly warranted further review [00:21:17] Speaker 00: by an IJ. [00:21:19] Speaker 00: Why is that incorrect in your view, if it is incorrect in your view? [00:21:29] Speaker 05: Well, the board reasonably [00:21:34] Speaker 05: determined that there weren't indicia of mental incompetency, particularly. [00:21:39] Speaker 00: But that's the very question that I'm asking. [00:21:41] Speaker 00: I think it's unreasonable. [00:21:43] Speaker 00: Why do you think it's reasonable? [00:21:45] Speaker 05: Sure. [00:21:45] Speaker 05: Well, first of all, Your Honor, he was represented by counsel, which is a really key point, because a lot of times, if a counsel realizes that he cannot properly communicate with his client, [00:22:00] Speaker 05: then he brings that to the immigration judge's attention and requests a competency evaluation. [00:22:07] Speaker 05: That was not done here. [00:22:08] Speaker 00: That's not an answer to MAM, which says if the if the IJ observes the addition of incompetency, the IJ has an obligation, regardless of whether the issue is raised. [00:22:23] Speaker 05: Yes, Your Honor. [00:22:24] Speaker 05: But the IJ and well, as the board [00:22:29] Speaker 05: noted the petitioner was able to answer most of the questions asked, and he seemed to be coherently understanding what was asked of him. [00:22:42] Speaker 05: There were points where he was confused, but that was ultimately resolved with respect to the asylum declaration and whether he wrote it or not. [00:22:54] Speaker 05: But ultimately, the record shows that he had a rational and factual understanding of the nature and object of the proceedings. [00:23:03] Speaker 05: This is from MAM, the criteria, and he can communicate with his attorney, and can he reasonably examine and present evidence and cross-examine witnesses? [00:23:13] Speaker 05: Well, that's, of course, done through his attorney, which was done here. [00:23:23] Speaker 05: he was able to answer a lot of the questions that were asked and only became unable to be consistent and fully perhaps remember the details of his criminal convictions, but he was able to remember a lot of other things even that predated that in Guatemala. [00:23:48] Speaker 05: So there may be [00:23:56] Speaker 05: The board certainly did not abuse its discretion in declining to remand for a competency evaluation. [00:24:06] Speaker 05: And this is similar to this court's case. [00:24:12] Speaker 05: in Salgado? [00:24:14] Speaker 00: Well, in Salgado, there was no medical diagnosis the way there is here, and there was not this same constellation of severe issues, including both mental and physical problems. [00:24:29] Speaker 00: And what significance do you take from the IJ's observation that he seemed to be guessing at answers [00:24:37] Speaker 00: not necessarily lying, but guessing. [00:24:41] Speaker 00: That was the IJ's comment. [00:24:44] Speaker 00: What do we make of that? [00:24:47] Speaker 05: Well, I believe the IJ instructed him the beginning that if he didn't understand a question, he should ask it to be repeated. [00:24:58] Speaker 05: It would be explained to him. [00:24:59] Speaker 05: And so he had these warnings about the questions and he didn't ever say, oh, I don't know the answer to that. [00:25:12] Speaker 00: Well, he was confused and he didn't understand questions, many of them. [00:25:16] Speaker 00: many of them. [00:25:17] Speaker 00: I want to ask you a different question, if I could. [00:25:21] Speaker 00: What is your response to Judge Owens' question about the viability of mediation in this case? [00:25:33] Speaker 05: Well, Your Honor, the government will, of course, do whatever the court suggests or orders us to do. [00:25:43] Speaker 05: If it wants us to explore mediation or some kind of alternative resolution, we, of course, will do that. [00:25:50] Speaker 05: I will note that we have never been approached by Petitioners' Council about any alternative resolution, and I don't believe [00:26:02] Speaker 05: that there is anything in the record indicating, I mean, this case has been pending in the immigration court since 2008. [00:26:10] Speaker 05: So we've gone through several registrations. [00:26:12] Speaker 00: Well, mediation can happen at any time, and it's not something that has to be preserved in the way that other issues do. [00:26:20] Speaker 00: I mean, this individual is in his late 60s, and he clearly has dementia and many physical and mental ailments. [00:26:29] Speaker 00: And his situation is not necessarily typical of those that are being removed. [00:26:42] Speaker 00: So if I understand your answer correctly, you would be amenable to the possibility of discussions. [00:26:53] Speaker 05: Yes, Your Honor. [00:26:54] Speaker 05: We can't make any promises, of course, because... Of course not. [00:27:02] Speaker 05: I mean, he does have, as his counsel in this court has recognized, he does have four [00:27:10] Speaker 05: criminal convictions. [00:27:11] Speaker 05: I do realize that they were years ago. [00:27:15] Speaker 00: But 30 years ago was the most recent. [00:27:18] Speaker 05: Correct. [00:27:18] Speaker 05: Correct. [00:27:18] Speaker 05: But they are very, especially the shooting at an inhabited dwelling, that is a very serious offense. [00:27:28] Speaker 05: And the fact that the immigration judge denied [00:27:34] Speaker 05: as a matter of ultimate discretion, in large part because of the criminal history, despite the fact that the crimes were so old. [00:27:41] Speaker 05: I think that will weigh heavily on any kind of alternative possible resolution. [00:27:50] Speaker 05: But that being said, of course, we are happy to explore something if that would be what the court would want us to do, Your Honor. [00:28:02] Speaker 05: Um, and, uh, going back to that, uh, before you go any further. [00:28:10] Speaker 02: Before you go any further, I'd like to ask a couple questions where we left off. [00:28:15] Speaker 02: Can you talk to me about the 2 standards that the seem to use? [00:28:20] Speaker 02: would say would likely change reasonable likelihood of success. [00:28:25] Speaker 02: Are those interchangeable? [00:28:27] Speaker 02: Are those different? [00:28:29] Speaker 02: And if they are a bit different, when you look behind the curtain, can you say that he applied the correct standard, even if he may have misspoken? [00:28:41] Speaker 05: So Your Honor, are you talking about in the motion to reopen denial [00:28:50] Speaker 05: where certainly with respect to the asylum and related protection claims, the board applied, clearly applied the reasonable likelihood standard, which this court subsequently clarified in Fonseca Fonseca that that is the standard that applies for [00:29:19] Speaker 05: and that the discretion is the COELO might likely change the result. [00:29:31] Speaker 05: So with respect to all of the additional hardship evidence for the NACARA claim, [00:29:49] Speaker 05: The board does go through those and explains why each one would not, they likely change the result and it's almost as if it's leading up to the ultimate discretion [00:30:09] Speaker 05: Um, because, and it's also almost irrelevant or there's no, there's no prejudice, even if the board did apply. [00:30:18] Speaker 05: Now, in hindsight, because of the time, the standards. [00:30:24] Speaker 05: Uh, the board did use those standards are interchangeably, but. [00:30:29] Speaker 05: It's not a problem because ultimately the board says. [00:30:35] Speaker 05: With all of this extra hardship evidence, it's still not likely to change the result of ultimate discretion. [00:30:42] Speaker 05: And of course, ultimate discretion is not reviewable. [00:30:45] Speaker 05: It's not reviewable on direct review. [00:30:47] Speaker 05: It's not reviewable in a motion to reopen. [00:30:50] Speaker 05: And so unless there's constitutional or legal error, and there's not here. [00:30:56] Speaker 05: So to answer your question, Your Honor, there is no problem. [00:31:02] Speaker 05: Well, first of all, also I should mention that Petitioner waived any challenge to any claim that the board applied the wrong standard or that it caused him any prejudice. [00:31:17] Speaker 05: But we, of course, argue in the alternative that [00:31:20] Speaker 05: that it is not a problem here. [00:31:25] Speaker 05: And for that point specifically, petitioner spent a good deal of time talking about how this court can get to the motion to reopen and the credibility finding and the other factual and discretionary findings that go into that underlying [00:31:50] Speaker 05: motion to reopen denial. [00:31:52] Speaker 05: And this court has already rejected that idea in the Figueroa-Ochoa case and specifically rejected the Eighth Circuit's view that petitioner is advocating here about Kukana. [00:32:12] Speaker 05: And so it's, [00:32:16] Speaker 05: This court has to follow through the Roa Ochoa as it has done in unpublished decisions since then, recognizing that any determination that relates to as the discretionary relief is also unreviewable. [00:32:43] Speaker 05: And that includes [00:32:44] Speaker 05: Determinations made in the context of motions to remand motions to reopen motions for to continue as long as they are, they are related to the. [00:32:57] Speaker 05: The relief that is ultimately discretionary. [00:33:01] Speaker 05: Or that, and 1, that's barred from review by 1252, a, 2, B, 1. [00:33:09] Speaker 05: So. [00:33:15] Speaker 05: And the other thing about part of the credibility allegations of error were not exhausted to the board. [00:33:27] Speaker 05: And so, of course, the court shouldn't review those anyways, in addition to the fact that it's a factual finding that's unreviewable. [00:33:43] Speaker 05: And the picture that Petitioner paints about the first I.J. [00:33:48] Speaker 05: giving him the benefit of the doubt, I mean, there's some of that in the record, but there's also a point where she, at the end, is ready to find that he's perjured himself. [00:33:58] Speaker 05: So I think that [00:34:02] Speaker 05: It's not so clear cut as petitioner makes it out to be. [00:34:09] Speaker 05: But in any event, that's unreviewable. [00:34:14] Speaker 05: And with respect to the NACARA application being forfeited, [00:34:23] Speaker 05: It was forfeited in its entirety. [00:34:26] Speaker 05: And there's an independently-disposited discretionary denial of that application, which he could have challenged that all along by saying there was a legal or constitutional error. [00:34:39] Speaker 05: And he didn't. [00:34:40] Speaker 05: He waived review of Nakara. [00:34:43] Speaker 05: So he can't now come back or shouldn't now be able to come back and say, oh, well, things have now changed because the law on hardship, now the court can review, [00:34:53] Speaker 05: the application of the legal standard to undisputed facts with respect to the hardship. [00:34:59] Speaker 05: So now we're gonna, we wanna challenge Nacar. [00:35:03] Speaker 05: Well, no, you still have this ultimate discretionary denial that's just positive. [00:35:09] Speaker 05: And with respect to the shooting at an inhabited dwelling being a crime involving moral turpitude, [00:35:23] Speaker 05: It is a, categorically, it is a very inherently dangerous crime, both at California courts and this court have acknowledged. [00:35:37] Speaker 05: And even though the, so the mens rea for the actual shooting has to be malicious and willful, the discharge of the weapon, but then there's a reckless [00:35:51] Speaker 05: as to the reckless disregard as to whether a bullet would hit an inhabited dwelling or a person in and around that building. [00:36:11] Speaker 05: And as this court has recognized in Covarrubias Tempos, that's a 2011 case, [00:36:21] Speaker 05: It creates a risk of injury to other people and damage to property. [00:36:27] Speaker 05: And there's a subjective awareness of possible injury. [00:36:31] Speaker 05: The California courts also have called it an evil act done with reckless disregard of the probable consequences of someone being struck. [00:36:43] Speaker 05: and have noted that there's a significant likelihood or high probability that personal injury or death will result because people are generally in and around buildings that are inhabited and even if they're not occupied at the time. [00:37:04] Speaker 05: And as this court has recognized in the Moran case, [00:37:11] Speaker 05: non-fraudulent category of crimes involving moral turpitude includes some crimes that seriously endanger others, even if no actual injury occurs. [00:37:22] Speaker 05: This is also very similar to the crime found to involve moral turpitude in Diaz Flores involving burglary because it is a dwelling that violates and the shooting violates the sanctity of the home. [00:37:43] Speaker 05: and thereby the accepted moral standards of having peace and security in that space, even if you're not home at the time when it happens. [00:37:54] Speaker 05: And also this court has already deferred to the board's two elements for crime involving moral turpitude of reprehensible [00:38:08] Speaker 05: conduct and the sufficiently culpable mental state. [00:38:14] Speaker 05: And so that precedent stands. [00:38:22] Speaker 00: I think that your colleague on the other side suggested that Loper-Bright might change that, if I understood his argument correctly. [00:38:34] Speaker 00: What is your response to his argument on that specific point? [00:38:40] Speaker 05: Yes, it does not change that, Your Honor, because Loper-Bright says that controlling precedent is still subject to stare decisis unless a litigant brings up a [00:39:03] Speaker 05: I forget the words they used, but it has to be a significant reason for the court to go away from that precedent, and Petitioner has not done that here. [00:39:17] Speaker 05: These two elements have long been relied on by the board and this court. [00:39:24] Speaker 05: And honestly, even when the court has had its own definition of CIMT, it has recognized that it's [00:39:34] Speaker 05: In Ortega-Lopez in 2020, our definition of moral turpitude for non-fraudulent offenses is substantially the same as the board's. [00:39:43] Speaker 05: So they're really not all that different, but in any event, oh, I'm sorry, it's a sufficiently special justification for overruling the existing precedent under Loper-Brite. [00:39:58] Speaker 05: And Petitioner has not given any such justification here. [00:40:06] Speaker 01: We're a little over time. [00:40:08] Speaker 01: I just want to check with my colleagues. [00:40:10] Speaker 01: Do either of you have any questions for council at this point? [00:40:16] Speaker 01: All right, you got something real quick. [00:40:20] Speaker 01: I'm sorry, Judge Zahari, you kind of cut out there. [00:40:25] Speaker 01: I said I'm good. [00:40:26] Speaker 01: Good to go. [00:40:27] Speaker 01: Thanks. [00:40:28] Speaker 01: Unless, council, you have something you can really quick wrap up with, I think it's probably time to wrap it up. [00:40:34] Speaker 05: Thank you, your honor. [00:40:35] Speaker 05: If the court, we would respectfully ask that the court deny and or dismiss the petitions for review. [00:40:42] Speaker 05: Thank you, counsel. [00:40:43] Speaker 05: Thank you. [00:40:44] Speaker 01: All right, Mr. Perkinson, I think I gave you four minutes. [00:40:51] Speaker 03: Thank you. [00:40:51] Speaker 03: Thank you, your honor. [00:40:52] Speaker 03: Just very quickly, Figueroa Ochoa, it does not cite the motion to reopen statute. [00:40:58] Speaker 03: So I don't see that Figueroa Ochoa has any [00:41:04] Speaker 03: It doesn't bind this panel in any way on the interpretation of 1229 AC7, the Motion to Reopen Statute. [00:41:12] Speaker 03: Figueroa Cho didn't mention that statute. [00:41:19] Speaker 03: As to the ultimate exercise of discretion in reopening, [00:41:25] Speaker 03: The board there argument there is that they only considered three factors, the crime, the testimony about the crimes, and his need for palliative care, which will not be available in Guatemala. [00:41:36] Speaker 03: Every other factor in the motion to reopen was said, that's not enough. [00:41:41] Speaker 03: That's not just positive. [00:41:42] Speaker 03: That doesn't make a difference, but that's not how you do it. [00:41:44] Speaker 03: You have to take everything together and put it balanced and weigh it all. [00:41:48] Speaker 03: And the board didn't do that. [00:41:49] Speaker 03: That's a legal error that allows this court to reach discretion in the Nicarra reopening. [00:41:55] Speaker 03: For the crimes, my client has three crimes, the 88 crime, the 93 domestic violence, and the 97 DUI. [00:42:06] Speaker 03: And again, my colleague's argument on the CIMT, yes, 246 does encompass terrible acts, but the least act criminalized is simply shooting a gun near a house. [00:42:26] Speaker 03: and being reckless as to whether property will be damaged. [00:42:30] Speaker 03: And that's not enough to transform it into a CIMT. [00:42:33] Speaker 03: You can certainly commit a crime of moral turpitude by committing 246, but you don't have to. [00:42:39] Speaker 03: It's not categorically a crime of moral turpitude. [00:42:42] Speaker 03: Again, for the initial decision, the board addressed credibility. [00:42:53] Speaker 03: pages 425 to 427, it was, the board addressed credibility in the first petition for review. [00:43:03] Speaker 03: So this court has, if the court gets to it, it wasn't forfeited or waived. [00:43:12] Speaker 03: It was briefed in the first petition for review. [00:43:16] Speaker 03: And then the incompetency is another legal error [00:43:22] Speaker 03: that directly impacted discretion and it probably impacted the credibility too. [00:43:28] Speaker 03: These are more legal issues the court can reach to remand back to the immigration judge for a redo on that credibility finding. [00:43:37] Speaker 03: And that's going to change the discretionary outline. [00:43:39] Speaker 03: You don't have to review discretion. [00:43:42] Speaker 03: You just have to correct these legal errors and the discretion will fix itself. [00:43:46] Speaker 03: Those are the rebuttal points I wanted to make. [00:43:48] Speaker 03: I don't wanna waste the panel's time. [00:43:50] Speaker 03: If there's any questions, otherwise, thank you very much. [00:43:54] Speaker 01: Anything from my colleagues? [00:43:58] Speaker 01: Seeing no hands, I wanna thank council, both of you for your briefing and argument in this case. [00:44:05] Speaker 01: We appreciate it. [00:44:07] Speaker 01: And I guess we'll adjourn the conference now. [00:44:11] Speaker 00: Thank you. [00:44:11] Speaker 04: Thank you. [00:44:13] Speaker 04: This court for this session stands adjourned.