[00:00:03] Speaker 04:
Good morning, and welcome to the Ninth Circuit.

[00:00:05] Speaker 04:
It's a pleasure to be with you this morning, and I am excited to be here with my colleague, Judge Sanchez.

[00:00:12] Speaker 04:
And Judge Sanchez and I both want to thank Judge Ezra for joining us sitting by designation.

[00:00:17] Speaker 02:
Well, thank you so much for the privilege.

[00:00:20] Speaker 04:
All right, so we have a few cases this morning that have been submitted on the briefs.

[00:00:23] Speaker 04:
And so for the record, I'll recite those.

[00:00:25] Speaker 04:
That's Padilla-Sarmiento versus, I guess, now Bondi.

[00:00:33] Speaker 04:
Packwood versus County of Contra Costa, and Hubbard versus Nation Star Mortgage, and Becque versus Bondi.

[00:00:43] Speaker 04:
So that leaves us three cases for argument this morning.

[00:00:46] Speaker 04:
For those of you who are representing the appellants, I just remind you that the time showing on the clock is your full time.

[00:00:51] Speaker 04:
If you want to reserve a few minutes for rebuttal, please let us know, and we'll try to assist and give you a cue for that.

[00:00:58] Speaker 04:
And so we will start this morning with Aguilar Garcia versus Bondi.

[00:01:03] Speaker 01:
Good morning, Your Honors.

[00:01:05] Speaker 01:
May it please the Court, Raja Georgiani, on behalf of the Petitioner Ricardo Aguilar-Garcia Pro Bono, I'd like to reserve four minutes for rebuttal.

[00:01:14] Speaker 01:
This case is about whether the government can rely on illegally obtained evidence to prove alienage.

[00:01:20] Speaker 01:
Petitioner's position is that they cannot, and that his DACA documents and statements regarding his place of birth and his I-213 must be excluded based on illegal taint.

[00:01:31] Speaker 01:
There are three principal issues here.

[00:01:32] Speaker 01:
The government made a promise to the petitioner.

[00:01:35] Speaker 01:
The promise was enforceable for several reasons.

[00:01:38] Speaker 01:
The information obtained from the broken promise warranted suppression.

[00:01:42] Speaker 01:
Now the BIA made several reversible errors as it adjudicated these issues.

[00:01:48] Speaker 01:
The BIA erred when it relied on boilerplate disclaimer language in the government's information sharing policy to find that the government had made no promise to the petitioner.

[00:01:57] Speaker 01:
The government's reliance on boilerplate disclaimer language

[00:02:00] Speaker 01:
to get out of promises that it has made has been rejected in this circuit.

[00:02:04] Speaker 01:
In both Isha Perez and Regence, the Ninth Circuit found that the same or similar disclaimer language was not dispositive as to whether or not the government had made enforceable promises.

[00:02:16] Speaker 01:
So the BIA's holding contradicts the law in this circuit.

[00:02:20] Speaker 01:
Now, Courts have found that if disclaimer language contradicts the terms of the policy itself, it may not be enforceable.

[00:02:26] Speaker 01:
So had the government said,

[00:02:28] Speaker 01:
We're going to try to avoid information sharing.

[00:02:31] Speaker 01:
But we make no promises.

[00:02:33] Speaker 01:
Then its policy and its disclaimer would be consistent with each other.

[00:02:36] Speaker 01:
But that's not what it said here.

[00:02:37] Speaker 05:
So can I start with a preliminary question?

[00:02:39] Speaker 05:
Excuse me.

[00:02:42] Speaker 05:
One of your arguments is that the submission of this DACA evidence was in violation of the district court's injunction in Casa de Maryland.

[00:02:49] Speaker 05:
Yes, Your Honor.

[00:02:52] Speaker 05:
Does that injunction apply to your client if his DACA status lapsed?

[00:02:59] Speaker 01:
Yes, Your Honor, because the promise made to the petitioner was not that for as long as

[00:03:04] Speaker 01:
he is in DACA status, the information will not be shared.

[00:03:07] Speaker 01:
And actually, that's also not a term by which the injunction itself was conditioned.

[00:03:12] Speaker 01:
It was that information submitted by DACA requesters based on the 2012 information sharing policy was to be protected unless the petitioner fell within one of the exceptions.

[00:03:23] Speaker 01:
So the Department of Homeland Security actually gave itself a very large out.

[00:03:27] Speaker 01:
and if the petitioner had some criminal history that caused him to fall within one of the exceptions to the information sharing policy, then DHS didn't make a promise to enforce.

[00:03:37] Speaker 05:
And I want to get to that in a second, but presumably the, and I know the injunction was itself vacated by the Fourth Circuit, you know, I guess maybe six months later, but to the extent that the injunction is trying to enforce this information sharing policy,

[00:03:57] Speaker 05:
Why would it apply to someone who is no longer within the thought of class needed for protection, you know, current DACA recipients?

[00:04:05] Speaker 01:
Well, Your Honor, because that's a great question.

[00:04:07] Speaker 01:
And the answer is that the information sharing policy was put in place by the Department of Homeland Security because the Department of Homeland Security

[00:04:16] Speaker 01:
wanted to incentivize people coming out of the shadows right to lure people out of the shadows to say hey we we have this program called DACA it's a government program we want the government program to succeed and we want to let you know that in this particular instance not on other applications

[00:04:32] Speaker 01:
But in this particular instance, we're going to make an exception for DREAMers.

[00:04:36] Speaker 01:
We're going to make an exception for people in this class.

[00:04:38] Speaker 01:
So if you come forward and give the Department of Homeland Security information that may be used to deport you, we promise not to use that information for enforcement purposes unless you fall within one of the exceptions.

[00:04:52] Speaker 05:
I guess now getting into the policy language and other things, but do you, so what was the agency's error?

[00:04:59] Speaker 05:
Was it supposed to interpret the scope of the injunction and decide whether it applied or should not apply there?

[00:05:07] Speaker 01:
Well, the agency's error in this case is that it passed the buck completely.

[00:05:10] Speaker 01:
The Board of Immigration Appeals did not at any point find that it had any power to do anything with the injunction.

[00:05:18] Speaker 01:
It held solely that the authority to enforce the injunction lies with the district court.

[00:05:23] Speaker 01:
But the petitioner had never asked the Board of Immigration Appeals or the immigration court

[00:05:28] Speaker 01:
to enforce an injunction, certainly to enforce an injunction, for example.

[00:05:32] Speaker 05:
I guess I'm sorry to interrupt, but the injunction says that any request for deviation from this order shall be submitted on a case-by-case basis to this court for in-camera review.

[00:05:46] Speaker 05:
So I can understand why the agency would be reluctant to want to wade into interpreting the scope of the injunction if the court's order itself said, take it up with us, the court.

[00:05:59] Speaker 01:
Your honor, the only thing that the petitioner has asked the agency to do is to find that evidence tainted with illegality can't sustain DHS's heavy burden.

[00:06:10] Speaker 01:
So the Board of Immigration Appeals was tasked with looking at the evidence and figuring out whether it was submitted in violation of a law.

[00:06:18] Speaker 01:
whether it was admissible, whether its use was fundamentally fair, and we would argue that evidence submitted in violation of a binding nationwide injunction in place at the time issued by a court in which DHS was a party would make the use of those documents fundamentally unfair.

[00:06:38] Speaker 04:
Do you think that the government's use of the DACA information violated the 2018 NTA policy?

[00:06:46] Speaker 01:
That's a great question.

[00:06:47] Speaker 01:
So, Your Honor, the information sharing policy is governed by the 2011 NTA.

[00:06:53] Speaker 04:
We're going to get there, but first answer my question.

[00:06:55] Speaker 04:
If we were to conclude that the 2018 NTA policy applies, not the 2011 policy, did what the government did here violate the 2018 policy?

[00:07:05] Speaker 01:
There are two memorandums that were issued on June 28th of 2018.

[00:07:11] Speaker 01:
One changed the NTA guidance under the new administration.

[00:07:15] Speaker 01:
A second one came in and said that the first one applies to all cases except for cases

[00:07:21] Speaker 01:
involving the DACA requesters.

[00:07:24] Speaker 01:
Does that make sense?

[00:07:25] Speaker 01:
And so that is on page 483 of the record.

[00:07:28] Speaker 01:
So the second, so the two memorandum happened and the government actually cites to the wrong memo, which may be part of the confusion here.

[00:07:35] Speaker 01:
Both of them are dated June 28th, 2018.

[00:07:38] Speaker 01:
One says we changed the NTA criteria, fine.

[00:07:41] Speaker 01:
And if that one applied, your honor, I think maybe he would fall under that one.

[00:07:44] Speaker 01:
But the second one says- Okay, so that's what I'm getting at.

[00:07:46] Speaker 01:
Yes.

[00:07:46] Speaker 04:
That's what I'm getting at.

[00:07:47] Speaker 04:
If the 2018 NTA policy applies to this case,

[00:07:50] Speaker 04:
would you agree that the use of the DACA information did not violate that policy?

[00:07:55] Speaker 01:
Your Honor, I haven't looked closely enough at it because it's not the NTA memo that actually governs this case, but again, that's not the memo that governs this case.

[00:08:03] Speaker 01:
So the June 28th, 2018 second memo says that when we're dealing with information provided by DACA requesters, the first memo does not apply.

[00:08:12] Speaker 04:
Well, it says that except for it limits it.

[00:08:15] Speaker 04:
It says it doesn't apply in two circumstances, and those circumstances are when you're processing,

[00:08:20] Speaker 04:
an initial DACA request or a DACA renewal request, or if you're looking at possible termination of DACA relief, and neither of those things are happening with the petitioner in this case.

[00:08:31] Speaker 04:
So I don't see that that DACA NTA policy that you're referencing, the more specific policy applies here.

[00:08:38] Speaker 01:
Your Honor, on page 485 of the record,

[00:08:41] Speaker 01:
and I'm looking at the second memo here, it specifically says that the information sharing policy is governed by the 2011 NTA memo.

[00:08:50] Speaker 01:
So in June of 2018, which was just within a couple months of this violation, the Department of Homeland Security reiterates that it's the 2011 NTA memo that governs in situations, including those where we're talking about information submitted by DACA requesters.

[00:09:12] Speaker 01:
unless they fall within the exception, the very large exception in the 2011 NTA memo and the petitioner does not fall within that exception.

[00:09:21] Speaker 05:
I'm not sure, let's say you're correct and it is the 2011 policy memo that does apply.

[00:09:26] Speaker 05:
The information sharing is not allowed except for certain categories of criminal offenses that have been committed and one of those categories is the non-egregious public safety criminal cases.

[00:09:39] Speaker 05:
So why, and I know there's a dispute about whether your client was arrested for domestic violence, but why would an arrest for a DUI and for carrying a concealed firearm with ammunition not qualify under this non-egregious public safety criminal cases category?

[00:09:58] Speaker 01:
Thank you, Your Honor.

[00:09:59] Speaker 01:
So the non-egregious public safety category that you're looking at on 477 specifies that a criminal offense that is not on the egregious public safety list, that makes a person inadmissible

[00:10:13] Speaker 01:
or deportable would suffice.

[00:10:16] Speaker 01:
So you have to have... That sounds pretty broad.

[00:10:20] Speaker 05:
A criminal offense that's not on the... And I don't think anyone's disputing that it's the list of egregious ones.

[00:10:27] Speaker 01:
Yes, Judge.

[00:10:27] Speaker 05:
But why isn't a DUI or carrying a concealed firearm a criminal offense that would then allow for information sharing?

[00:10:35] Speaker 01:
Because essentially the rules of criminal inadmissibility are governed by INA 212A2.

[00:10:42] Speaker 01:
and California firearms offenses and California DUIs do not fall within any ground of 212-82.

[00:10:50] Speaker 01:
They're not crimes involving moral turpitude, and I'm not sure what other ground they could possibly.

[00:10:55] Speaker 05:
But why does this policy memo only refer to crimes?

[00:10:57] Speaker 05:
It's just, I mean, you are just reading that language to me broadly, and it's a criminal offense that's not listed in the category of egregious offenses.

[00:11:07] Speaker 01:
Your Honor, respectfully, if it appears that the alien is inadmissible or removable,

[00:11:12] Speaker 01:
for a criminal offense not included on the EPS list.

[00:11:16] Speaker 01:
So not just inadmissible for any reason, and not just having had any crime.

[00:11:24] Speaker 01:
The language is if it appears that the person is inadmissible or removable.

[00:11:28] Speaker 01:
Where are you reading from?

[00:11:30] Speaker 01:
Page 477, non-aggregate public safety criminal cases.

[00:11:33] Speaker 01:
And so you have to be inadmissible or removable for a criminal offense.

[00:11:38] Speaker 01:
put a different way, you have to have something that falls under 212A2 or 237A2, and it doesn't here.

[00:11:44] Speaker 01:
And may I just point out, in the little time that I have left, that the Board of Immigration Appeals actually never found that the petitioner fell within the exception.

[00:11:52] Speaker 01:
That wasn't the basis upon which the board or the agency

[00:11:56] Speaker 01:
denied.

[00:11:57] Speaker 01:
The agency didn't even get there.

[00:11:59] Speaker 01:
The agency just said no promise was made to the petitioner, and it did so by relying on disclaimer language that the courts have repeatedly found is not dispositive.

[00:12:08] Speaker 01:
Ambiguous boilerplate disclaimer language is not dispositive as to these issues.

[00:12:13] Speaker 01:
I have under four minutes.

[00:12:15] Speaker 01:
Do you want to reserve the rest of your time?

[00:12:17] Speaker 01:
Yes.

[00:12:17] Speaker 01:
Yes.

[00:12:17] Speaker 01:
Thanks, Judge.

[00:12:19] Speaker 04:
All right.

[00:12:20] Speaker 04:
We'll hear from the government.

[00:12:40] Speaker 00:
Good morning, Your Honors.

[00:12:41] Speaker 00:
May it please the Court, Remy Derocha Afodu, representing the Attorney General of the United States.

[00:12:48] Speaker 00:
The petition for review should be denied, Your Honors.

[00:12:52] Speaker 00:
The petitioner failed to make a prima facie case showing that DHS egregiously violated his Fourth Amendment right when it issued a detainer and warrant for his arrest based on probable cause and in accordance with its regulations.

[00:13:11] Speaker 00:
We made that argument on page 28 of our brief, Your Honor, and we noted again that this Court has held that the Fourth Amendment violations are egregious if they are made in bad faith.

[00:13:25] Speaker 00:
And that is when evidence is obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should have known is in violation of the Constitution.

[00:13:37] Speaker 04:
Can I back you up just a little bit?

[00:13:39] Speaker 04:
Yes, Your Honor.

[00:13:39] Speaker 04:
I'm curious what the government's position is where procedurally here we had this injunction in place that was stopping new guidance for how DACA information was going to be treated.

[00:13:51] Speaker 04:
That injunction was in place when the immigration judge made

[00:13:55] Speaker 04:
its decision, and then it had been removed or vacated by the time the Board of Immigration Appeals is making its decision.

[00:14:04] Speaker 03:
What do we do with that?

[00:14:05] Speaker 00:
Well, Your Honor, as rightly pointed out earlier, Petitioner was no longer a DACA recipient as of the time that the injunction was in place.

[00:14:15] Speaker 00:
And so it is highly questionable that

[00:14:20] Speaker 00:
the injunction actually applied to petitioner.

[00:14:23] Speaker 00:
And again, as you rightly pointed out, the injunction was invalidated by the Fourth Circuit.

[00:14:28] Speaker 04:
Right, but it's an interesting issue to think about if the immigration judge's decision, let's assume for purposes of the question, the immigration judge's decision did violate the injunction.

[00:14:41] Speaker 04:
What do we do with that when we're reviewing the BIA's review of the immigration judge's decision?

[00:14:47] Speaker 03:
Your Honor, the immigration judge's decision did not violate the injunction.

[00:14:52] Speaker 03:
I'm asking you to assume for purposes of my question that there was a problem with the immigration judge's decision.

[00:14:57] Speaker 00:
Even if there was a problem with the immigration judge's decision, assuming on the board's subsequent decision, as the board rightly said,

[00:15:05] Speaker 00:
The enforcement of that injunction was within the jurisdiction of the court and never petitioned to the court and lost the ability to argue that case before the Fourth Circuit, which specifically mandated that any case should be brought

[00:15:27] Speaker 00:
to the court for in-camera review.

[00:15:29] Speaker 05:
But wouldn't the answer then be on the other side, well then the government shouldn't have brought this into evidence at the removal hearing.

[00:15:37] Speaker 05:
That if before the government brought this in or before the IJA allowed it, it should have made a request before the district court.

[00:15:45] Speaker 00:
And again, that comes to your question earlier as to whether it actually applied to the petitioner because he was out of DACA status.

[00:15:52] Speaker 00:
He never renewed his DACA application.

[00:15:54] Speaker 00:
It expired on October 24, 2015, and this injunction came in on March 5, 2018.

[00:16:01] Speaker 05:
But assuming, I mean to get back to Judge Forrest's question, assuming that he was within the purview of the injunction and you have an IJ allowing this information in, potentially in violation of the injunction, but then the injunction goes away by the time the Board of Immigration Appeal hears it, what do we do with that?

[00:16:23] Speaker 05:
That's a strange situation.

[00:16:24] Speaker 00:
Yes, it is, Your Honor, but there is no

[00:16:27] Speaker 00:
The petitioner has not shown that a remedy for that is what he asked for, which is termination of his proceedings, because he has not shown that he was harmed by this in any way, because he basically was just delaying the inevitable, which is

[00:16:46] Speaker 00:
being placed in removal proceedings.

[00:16:48] Speaker 05:
I mean, is there a harmless error analysis that by the time it gets to the BIA, that information would have been allowed into the proceeding?

[00:16:56] Speaker 00:
Yes, Your Honor, and also because the language of the district court was somewhat ambiguous because the district court did acknowledge in its decision that the court, that the government did not state that

[00:17:12] Speaker 00:
it could not be, the documents could not be relied upon, but then stated in the final paragraph of the decision that it mandated in-camera review of DACA applicants' data.

[00:17:27] Speaker 00:
And again, as you rightly pointed out, Your Honor, petitioners' DACA status expired on October 24, 2015, which was way before this.

[00:17:35] Speaker 04:
I guess I don't understand that point.

[00:17:37] Speaker 04:
What does it matter that the DACA status has expired?

[00:17:40] Speaker 04:
Because the whole point was, if you apply for this type of relief, we won't use the information that you give us against you for enforcement purposes.

[00:17:48] Speaker 04:
Why wouldn't that be true, regardless of whether the person was still under DACA status or even ever acquired DACA status?

[00:17:55] Speaker 00:
In this case, Your Honor, because of Petitioner's exposure to law enforcement and his arrest for very serious criminal offenses, he fell within the purview

[00:18:07] Speaker 00:
of the memo, which created that exception for the issuance of the NTA.

[00:18:12] Speaker 00:
And so the agency acted properly in using that information.

[00:18:19] Speaker 04:
Well, I understand that argument.

[00:18:20] Speaker 04:
And that makes more sense to me than saying that none of this applied to him because he was no longer a DACA recipient.

[00:18:26] Speaker 00:
Well, that was just, it could have been the reasoning of the agency.

[00:18:29] Speaker 00:
When they looked in the database, they may not have seen that he was a DACA recipient because they looked into so many databases.

[00:18:35] Speaker 00:
they looked into LACS, I mean, in the I-213, from I-213, the agency outlined all the steps that it took to figure out what to do, to figure out petitioners' alienage.

[00:18:49] Speaker 00:
And probably because his DACA application had expired, the agency, the databases probably didn't flag

[00:18:57] Speaker 00:
petition as a DACA recipient.

[00:18:59] Speaker 00:
And that probably led to that.

[00:19:01] Speaker 05:
So I know there's a disagreement between the sides about which policy memoranda would apply at 2018 versus 2011.

[00:19:08] Speaker 05:
Let's assume it's 2011.

[00:19:10] Speaker 05:
Can you tell me your view of this category of the non-egregious public safety criminal cases and whether the crimes for which he was arrested would qualify under that category?

[00:19:23] Speaker 00:
Yes, they would qualify under that category.

[00:19:26] Speaker 00:
And how do we know that?

[00:19:28] Speaker 00:
DHS has its standards for issuing NTAs and for putting a petitioner in proceedings.

[00:19:41] Speaker 00:
And based on

[00:19:42] Speaker 00:
the fact that they received these information from the various databases, they decided that this petitioner was an enforcement priority based on the firearms violation in the record.

[00:20:02] Speaker 05:
Is there anything in the policy memorandum that sheds light on what this category means?

[00:20:08] Speaker 00:
Yeah, the policy memorandum is really

[00:20:12] Speaker 00:
broad and it cannot basically enumerate every single offense that would be categorized as falling on that standard.

[00:20:25] Speaker 00:
But based on the fact that a firearms offense, an alien is not supposed to be in possession of firearms in the first place.

[00:20:36] Speaker 00:
And because it's a weapons charge,

[00:20:39] Speaker 00:
The agency determined that this person was subject to enforcement action.

[00:20:45] Speaker 05:
And if it's the 2018 memoranda, I take it you would say it's the same thing?

[00:20:49] Speaker 00:
As we argued in our brief, yes, Your Honor, it is.

[00:20:53] Speaker 00:
He would qualify as an NTA.

[00:20:55] Speaker 00:
And again, the issue here is that petitioner freely admitted to DHS that

[00:21:03] Speaker 00:
He fully admitted his citizenship and his alienage to a DHS official who met him at the detention center.

[00:21:11] Speaker 00:
And there was no coercion at all when DHS asked him for that information.

[00:21:16] Speaker 00:
So there was nothing egregious going back to the standard for reviewing these types of cases, Your Honor.

[00:21:26] Speaker 00:
Petitioners made no showing whatsoever that DHS's actions were an egregious violation of the Constitution at all.

[00:21:37] Speaker 05:
I take it though petitioner's argument there is that before he made these statements that are in the I-213, the only way that Department of Homeland Security knew in order to go to the jail was by using the DACA information, his alienage, which was itself the violation.

[00:21:56] Speaker 00:
Yes, Your Honour, and even if it was a violation, it was not made in bad faith that she has not made that showing.

[00:22:01] Speaker 00:
It was not egregious as in cases where the agency used race in the Sanchez case.

[00:22:09] Speaker 00:
Here, even if

[00:22:12] Speaker 00:
The agency was not supposed to use the DACA documents.

[00:22:17] Speaker 00:
It was not an egregious violation.

[00:22:19] Speaker 00:
It was not a violation of any statute.

[00:22:21] Speaker 00:
It was a policy memo which the courts have ruled that the agency has the ability to use the DACA documents.

[00:22:32] Speaker 00:
And so the standard again is the egregious violation and acting in bad faith.

[00:22:39] Speaker 00:
None of that happened in this case.

[00:22:41] Speaker 00:
And what's the case that you rely on that it's the egregious standard?

[00:22:47] Speaker 00:
Sanchez v. Sessions, where the court determined that the alien's detention, based solely on race, was egregious.

[00:22:57] Speaker 00:
And we argued here that the Sheriff's Office merely shared petitioners' release dates with DHS based on a lawful detainer and arrest warrant.

[00:23:07] Speaker 00:
based on probable cause.

[00:23:09] Speaker 05:
Isn't that about the sheriff though?

[00:23:10] Speaker 00:
Pardon me?

[00:23:11] Speaker 05:
Isn't that about the sheriff?

[00:23:12] Speaker 00:
Yeah, that is about the sheriff.

[00:23:14] Speaker 05:
Is that the standard to apply when it's about the government that has in its own policy said we are not going to share information?

[00:23:21] Speaker 05:
Do we apply an egregiousness standard?

[00:23:24] Speaker 05:
I'm talking within the federal government umbrella information from the DACA database goes to Department of Homeland Security for purposes of removal.

[00:23:38] Speaker 05:
Is that you still believe that that's an egregiousness standard to apply?

[00:23:46] Speaker 00:
Based on the argument that petitioner is making, that sharing that particular, that looking into the database to establish his alienage was egregious conduct.

[00:23:56] Speaker 00:
We do not agree with that.

[00:23:59] Speaker 00:
Okay.

[00:24:00] Speaker 00:
Yes, Your Honor.

[00:24:01] Speaker 04:
I just have a factual question.

[00:24:03] Speaker 04:
When this petitioner was picked up by federal authorities from the local jail, I guess, had an NTA issued at that point?

[00:24:14] Speaker 00:
The record is not exactly clear whether an NTA was issued, but it appears that an NTA probably was issued, which is usually the standard operating procedure for the agency, because it states in the I-213

[00:24:31] Speaker 00:
that the alien would be processed for an NTA.

[00:24:34] Speaker 00:
It did state that clearly.

[00:24:35] Speaker 00:
And usually what the agency does is to process the NTA, and then when the alien is brought in or found, they serve the NTA on the petitioner.

[00:24:47] Speaker 00:
So in this case, it looks like they did that.

[00:24:49] Speaker 00:
And DHS issues NTAs all the time.

[00:24:54] Speaker 00:
several NTAs issued that have not been, that were not able to serve on the petitioner because they didn't have the petitioner's address, because the NTA was found legally insufficient later based on a review of the record.

[00:25:10] Speaker 00:
So in this case, there is no indication that the NTA was not prepared at all, because- I think you're right in your very first statement of saying it's a little ambiguous on this record.

[00:25:20] Speaker 04:
My question was more sort of

[00:25:22] Speaker 04:
typical practice, just because I'm not sure how this normally goes.

[00:25:27] Speaker 04:
The NTA, it seems to me, is sort of comparable to a charging document in the criminal world, and you wouldn't necessarily have that document issued when an arrest occurs.

[00:25:38] Speaker 04:
So I'm just trying to figure out, in immigration proceedings, sort of what is the typical experience?

[00:25:42] Speaker 00:
The typical experience, Yarna, is for the agency to look at the record and say, oh, this person is amenable to removal, prepare the NTA.

[00:25:50] Speaker 00:
then get the alien and serve the NTA on the alien.

[00:25:53] Speaker 00:
And that's what happened in this case.

[00:25:56] Speaker 00:
So they didn't deviate from the record.

[00:25:58] Speaker 00:
So basically, again, Petituna has never asserted that his admissions about his alienation nationality to the DH officer who arrested him were coerced.

[00:26:09] Speaker 00:
That is clear.

[00:26:10] Speaker 00:
He gave it.

[00:26:10] Speaker 00:
It was willing.

[00:26:12] Speaker 00:
And he was not forced.

[00:26:14] Speaker 00:
And lastly, there is no remedy for petitioner in this case.

[00:26:18] Speaker 00:
Petitioner does not have a form of relief available to him.

[00:26:22] Speaker 00:
Council will argue that not being placed in proceedings is a form of relief, but that's only postponing the inevitable.

[00:26:29] Speaker 00:
Eventually, he would have been an alien.

[00:26:32] Speaker 00:
He would have to be placed in proceedings and removed.

[00:26:35] Speaker 00:
And so the agency did not do anything wrong here.

[00:26:39] Speaker 00:
He was not unjustly detained or imprisoned.

[00:26:42] Speaker 00:
The detention was only for a few hours.

[00:26:44] Speaker 00:
And so there was nothing egregious, going back to the standard again, for reviewing these kinds of cases.

[00:26:53] Speaker 00:
Petitioner has no form of relief available.

[00:26:57] Speaker 00:
And so removability is inevitable for petitioner.

[00:27:02] Speaker 00:
There is no remedy for petitioner in terms of what happened.

[00:27:06] Speaker 00:
Even if, for some reason, the court finds that there was some sort of violation, there is no remedy for petitioner.

[00:27:13] Speaker 00:
He hasn't established what the remedy would be.

[00:27:16] Speaker 00:
It certainly wouldn't be termination.

[00:27:17] Speaker 00:
There is nothing in the court cases that states that termination of proceedings is the appropriate remedy.

[00:27:24] Speaker 00:
Thank you very much, Your Honors, if you don't have any more questions.

[00:27:27] Speaker 04:
All right, thank you for your argument.

[00:27:28] Speaker 00:
Thank you.

[00:27:28] Speaker 04:
It doesn't appear there are more questions.

[00:27:41] Speaker 02:
Council, before you start, if I may, one of the things that's been going through my mind as I've been reviewing this case is

[00:27:52] Speaker 02:
exactly the point that has just been made by government's counsel, and that is, what actually is it that you could achieve here?

[00:28:07] Speaker 02:
I mean, is it a peer victory?

[00:28:09] Speaker 02:
I mean, your client appears to be headed down the road to deportation in any event.

[00:28:17] Speaker 02:
So where is the relief?

[00:28:21] Speaker 01:
Well, Your Honor, termination under Sanchez is a form of relief, and we see it in criminal cases.

[00:28:26] Speaker 02:
Well, I know that, but this court wouldn't be issuing some order saying he can stay in the United States permanently.

[00:28:35] Speaker 02:
I mean, that wouldn't happen.

[00:28:37] Speaker 01:
No, Your Honor, and the petitioner isn't asking this court for that order.

[00:28:41] Speaker 01:
The government put the petitioner in removal proceedings, the government violated the law in the way that it went about doing that, and just as the many criminal cases where there might even be evidence of guilt, but sometimes criminal cases have to be thrown out,

[00:28:54] Speaker 01:
where the government violates the law, this would be a similar situation.

[00:29:00] Speaker 01:
I'd love to address a few points.

[00:29:02] Speaker 01:
Under Chenery, this court is limited to reviewing the reasons invoked by the agency below and may not entertain post hoc rationalizations by government counsel during appellate litigation.

[00:29:14] Speaker 01:
And that's what you heard from my friend.

[00:29:16] Speaker 01:
the respondent.

[00:29:18] Speaker 01:
They argue that the issue about the vacator, the BIA never found, never denied Petitioner's case because the Fourth Circuit had vacated the injunction at the time.

[00:29:29] Speaker 01:
Even if they had, I will just point out that the Petitioner has multiple other theories under which

[00:29:33] Speaker 01:
The documents could be excluded, including violations of the Icardi doctrine, violations of the rules of inadmissibility, and so on and so forth.

[00:29:43] Speaker 01:
Similarly, the BIA also never found that the petitioner fell within the exception.

[00:29:48] Speaker 01:
So these things, these issues are not properly before the court on review.

[00:29:52] Speaker 01:
As far as the court's concern about de novo, the de novo question, the BIA's de novo review doesn't change the fact that DHS's use of DACA documents for enforcement purposes occurred in 2018.

[00:30:05] Speaker 01:
So de novo review allows a court to not have to defer to the previous court's legal conclusions, but it can't change the facts of the case.

[00:30:14] Speaker 01:
And the violation is frozen in time.

[00:30:17] Speaker 01:
It happened in 2018, at that time,

[00:30:19] Speaker 01:
It was a violation of the policy.

[00:30:21] Speaker 01:
It was a violation of the injunction.

[00:30:23] Speaker 01:
It was a violation of the rules of inadmissibility, and so on.

[00:30:27] Speaker 05:
Can I ask about that, counsel?

[00:30:29] Speaker 05:
I mean, you're raising an interesting point about Chenery.

[00:30:32] Speaker 05:
But you're teeing up the notion that there was a violation of the injunction by not excluding the evidence.

[00:30:40] Speaker 05:
And the BIA does seem to pass on that issue to a certain extent by saying it's up to the district court.

[00:30:46] Speaker 05:
Why would that preclude us as a panel to then observe the fact that the Fourth Circuit had actually vacated that injunction?

[00:30:56] Speaker 05:
Why does that preclude us from making that observation if we disagreed with you?

[00:31:04] Speaker 01:
We're not asking this court.

[00:31:07] Speaker 01:
to find that the BIA violated the injunction.

[00:31:10] Speaker 01:
The BIA was supposed to determine whether the evidence is fair, whether the evidence is fundamentally fair so that it can be admitted and used in removal proceedings.

[00:31:19] Speaker 01:
And we're saying that evidence submitted in

[00:31:22] Speaker 01:
and violation of a binding nationwide injunction in place at the time, as well as under other theories, made the evidence unfair.

[00:31:31] Speaker 01:
I think Petitioner cannot be left without a remedy where the government violated, amongst other things, this federal court injunction in plain sight, such a holding

[00:31:40] Speaker 01:
would require the court to abandon issues of basic fairness and would greenlight future abuse.

[00:31:45] Speaker 01:
Your honors, the Supreme Court famously stated in 2021, if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

[00:31:55] Speaker 01:
We believe that justice requires that the government go through the necessary trouble of lawfully removing a person who has continuously resided in the United States for over a quarter of a century.

[00:32:06] Speaker 01:
It may mean more work, but it may be what justice requires.

[00:32:10] Speaker 01:
Thank you so much.

[00:32:11] Speaker 04:
All right.

[00:32:12] Speaker 04:
I want to thank both counsel for your helpful argument.

[00:32:15] Speaker 04:
In this case, Aguilar Garcia versus Bondi will be submitted.

[00:32:18] Speaker 04:
I also want to take the opportunity to specifically thank petitioners counsel who accepted this case pro bono.

[00:32:25] Speaker 04:
We always appreciate it when counsel will assist by representing litigants who don't otherwise have counsel.

[00:32:31] Speaker 04:
So thank you very much.