[00:00:09] Speaker 03:
Good morning.

[00:00:09] Speaker 01:
Good morning.

[00:00:10] Speaker 03:
May it please the court.

[00:00:11] Speaker 03:
Hunter Haney for Eliezo at Arribles Velasco.

[00:00:14] Speaker 03:
I hope to reserve two minutes for rebuttal, and I'll watch my time.

[00:00:18] Speaker 03:
This appeal concerns the denial of two motions to dismiss, and unless the court prefers otherwise, I'll briefly address the 1326D motion before turning to the statute of limitations motion with any remaining time that I have.

[00:00:30] Speaker 03:
Ms.

[00:00:30] Speaker 03:
Robles's 1326D motion should have been granted because she met all three required prongs of the statute.

[00:00:37] Speaker 03:
Exhaustion of available administrative remedies, deprivation of judicial review, and fundamentally unfair removal proceedings.

[00:00:43] Speaker 01:
Are we clear about who had the burden of proof on each of those?

[00:00:46] Speaker 03:
Yes, Your Honor, Mr. Obelisk-Velasco had the burden at each of the prongs.

[00:00:52] Speaker 03:
And because the last prong will likely be decided in the argued and still pending Reed and Soto cases from earlier this year, I'd like to focus on why the court correctly found that the other two prongs were satisfied.

[00:01:03] Speaker 03:
The court didn't clearly err in finding that the government didn't meet its clear and convincing burden of showing a considered and intelligent waiver of Ms.

[00:01:11] Speaker 03:
Robles's rights.

[00:01:12] Speaker 03:
The immigration proceedings at issue entailed a single appearance over a one-week period without counsel, an adequate interpreter, or any record of the proceedings beyond an inaudible recording.

[00:01:23] Speaker 01:
Without record of an oral... Can I just ask you, I've never seen an inaudible record, so there was a recording created and we just can't hear it?

[00:01:30] Speaker 03:
Correct, Your Honor.

[00:01:31] Speaker 01:
And there's certainly no transcript?

[00:01:32] Speaker 03:
And there's no transcript.

[00:01:33] Speaker 01:
And we don't have any indication of how long it lasted?

[00:01:36] Speaker 03:
I am not aware of how long it lasted.

[00:01:38] Speaker 03:
Okay, thank you.

[00:01:39] Speaker 03:
And so without a record of any sort of oral advisory or written waiver, there's really no evidence that Ms.

[00:01:45] Speaker 03:
Robles was told she could challenge the aggravated felony classification, as of course she does here, much less appeal any determination.

[00:01:53] Speaker 03:
So therefore, she was deprived for administrative remedies and judicial review under this courts, Gomez, Orojel, and Ubaldo Figueroa.

[00:02:02] Speaker 01:
Except she had the burden.

[00:02:03] Speaker 01:
Sorry, I didn't mean to interrupt you.

[00:02:05] Speaker 01:
Except she had the burden.

[00:02:06] Speaker 01:
There's no record that she was told, but she has the burden, doesn't she, to show that she wasn't?

[00:02:10] Speaker 03:
She has the ultimate burden at D1 and D2 to show that she exhausted or was deprived of judicial review.

[00:02:21] Speaker 03:
So ultimately, she was held to that burden correctly, because I think there's this sort of threshold step that the court usually applies of looking to whether there were available remedies.

[00:02:33] Speaker 03:
And traditionally,

[00:02:35] Speaker 03:
under Ubaldo Figueroa and its progeny, a non-citizen has been held to be exempt from exhaustion when they have no information to seek remedies.

[00:02:45] Speaker 03:
So the burden is effectively relieved if the government can't demonstrate availability or waiver.

[00:02:50] Speaker 03:
That's how this court has sort of applied that sort of threshold step.

[00:02:54] Speaker 03:
And that's how this court in Nunez also, very recently when it was addressing this, applied waiver principles in analyzing those two prongs.

[00:03:03] Speaker 02:
I think I cut you off.

[00:03:04] Speaker 02:
So I assume that you're relying on the opaque aspect of this rule statement.

[00:03:11] Speaker 02:
And I'm curious what you think the best case is for this scenario that you're in, in terms of a lack of translation.

[00:03:19] Speaker 02:
Because the cases that I've seen this rule applied in more commonly are different than this, right?

[00:03:26] Speaker 02:
There's something about the procedures themselves that are just incomprehensible.

[00:03:31] Speaker 02:
Right.

[00:03:34] Speaker 02:
something about the proceedings like affirmatively mislead someone.

[00:03:38] Speaker 02:
And this is different than that.

[00:03:39] Speaker 02:
And it seems like there's different motivations or opportunity for the person who's being hindered to deal with the problem.

[00:03:48] Speaker 02:
In this scenario, it's just sort of like, I'm not understanding anything.

[00:03:51] Speaker 02:
Please fix this problem for me.

[00:03:53] Speaker 02:
So why should we apply this opaqueness rule the same in this context as to the other context I've outlined?

[00:03:59] Speaker 03:
Well, because I think even in this court's recent decision in Nunez, the court emphasized that someone who's never even made aware of their rights cannot validly even make the step of waiving them.

[00:04:10] Speaker 03:
And that is really consistent with this court's prior 132060 cases.

[00:04:15] Speaker 03:
I'd say to your honor's question, Gomez is probably our best case in that regard, which involved just sort of a bare reliance on a signed appeal waiver, just sort of a mark like we have in this case that the appeal was waived on a piece of paper.

[00:04:27] Speaker 03:
without any record of those stipulated removal proceedings or access to counsel or an interpreter.

[00:04:33] Speaker 02:
So why in this scenario isn't it on the petitioner to alert the immigration court?

[00:04:38] Speaker 02:
I'm not understanding anything.

[00:04:39] Speaker 02:
I don't know what's happening.

[00:04:41] Speaker 03:
Due process is ultimately what animated and what spawned 1326D.

[00:04:46] Speaker 03:
And this court, and so... It's just counsel, here's what I'm trying to get at.

[00:04:50] Speaker 01:
I don't mean to interrupt you, but, well, I guess I did.

[00:04:53] Speaker 01:
Yes.

[00:04:54] Speaker 01:
I just don't think we're – I think we're talking past each other.

[00:04:58] Speaker 01:
It's why I asked how long the hearing lasted.

[00:05:02] Speaker 01:
Right.

[00:05:02] Speaker 01:
Because it's the flip-flot to follow up on what Judge Forrest has.

[00:05:06] Speaker 01:
You know, what we usually see is that there's a petitioner who has an unusual dialect, right, but she's actually alleging that the interpreter the government used had an atypical dialect, and this is a person who had lived in the United States for like 20 years or something.

[00:05:21] Speaker 01:
whose language was working just fine in the United States for her apparently for 20 years.

[00:05:26] Speaker 01:
And so it is hard for me to imagine that this hearing went on for whatever length of time without her raising her hand and saying, I'm not understanding what's going on here.

[00:05:36] Speaker 01:
But that is what you're asking me to assume happened.

[00:05:38] Speaker 03:
Well, there's no evidence in the record contradicting Mr. Obelisk's assertion.

[00:05:42] Speaker 03:
Certainly the government could have found that interpreter, for instance, and submitted a declaration saying, okay, this is what happened in these proceedings.

[00:05:50] Speaker 01:
So I appreciate that, but just walk me through how it is not, how do we apply what you agreed at the top of the hour?

[00:05:57] Speaker 01:
Is your client's burden here?

[00:05:59] Speaker 03:
Right.

[00:05:59] Speaker 03:
So I think she met her burden here when she proffered through her declaration that she was unable to understand anything that happened at the proceedings.

[00:06:07] Speaker 01:
Okay, so you're relying on her declaration?

[00:06:08] Speaker 03:
Absolutely, yes.

[00:06:10] Speaker 03:
That's the primary piece of evidence here that was unrefuted.

[00:06:12] Speaker 01:
And what does her declaration say about her understanding or not understanding that she had the right to appeal?

[00:06:17] Speaker 03:
Her declaration says that she had no understanding of the proceedings as a whole.

[00:06:26] Speaker 03:
I can pull it up, I believe it said.

[00:06:29] Speaker 03:
ER 178, she said, I could not understand the interpretation because the dialect and accent of the interpreter was different from the dialect that I'm familiar with.

[00:06:39] Speaker 02:
So that makes clear that whether- She doesn't say in that declaration that she informed the immigration court or that she-

[00:06:45] Speaker 02:
made an effort to do that.

[00:06:46] Speaker 03:
She doesn't because she didn't because it was again a very fast proceeding.

[00:06:49] Speaker 03:
She had no concept of the significance of the proceedings.

[00:06:52] Speaker 03:
I mean this was just done over a week right between Christmas and New Year's.

[00:06:56] Speaker 03:
You know she had lived in this country for a long period of time and she's lived here for most of her life and I think really what animates this requirement is if you're going to take the serious and

[00:07:07] Speaker 03:
life-altering step of deporting someone who's an LPR, like Ms.

[00:07:11] Speaker 03:
Robles-Vlasco, you need to keep records, ultimately, of those proceedings.

[00:07:14] Speaker 03:
And here, I think, ultimately, you know, once Ms.

[00:07:18] Speaker 03:
Robles put this at issue, that she didn't understand these proceedings, it is incumbent upon the government to actually produce something in response to comport with the due process principles that animate it.

[00:07:29] Speaker 00:
Council, with respect, I think my colleague Judge Christin has raised the concern that I have.

[00:07:36] Speaker 00:
Your client has the burden.

[00:07:38] Speaker 00:
She'd been in the country for 20 years.

[00:07:42] Speaker 00:
For her to say, I don't understand any of this.

[00:07:46] Speaker 00:
I don't understand what's being translated.

[00:07:48] Speaker 00:
And yet she's been able to live successfully in the United States for 20 years.

[00:07:52] Speaker 00:
That's kind of hard to swallow when she has the burden of proof.

[00:07:55] Speaker 00:
What am I missing here?

[00:07:56] Speaker 00:
I mean, we, as you know, this is a tough area of law.

[00:08:00] Speaker 00:
These are human beings.

[00:08:02] Speaker 00:
You have tough questions.

[00:08:04] Speaker 00:
We respect that.

[00:08:05] Speaker 00:
But there's common sense involved here, too.

[00:08:08] Speaker 00:
And that's what I find missing in this.

[00:08:11] Speaker 00:
I don't see how your client meets her burden.

[00:08:14] Speaker 00:
Help me with that, please.

[00:08:15] Speaker 03:
So I think, respectfully, Your Honor, I think what she proffered meets her burden.

[00:08:19] Speaker 03:
And I think the rule that I'm hearing the court proposing, which is allowing a completely silent record where the defendant is saying that she didn't understand anything to suffice, that basically shifts the burden to the defense to provide evidence of an affirmative misrepresentation.

[00:08:36] Speaker 03:
And I think they're really ill-qualified to do so in this particular concept, in this particular context.

[00:08:42] Speaker 03:
So I think it's a really, really troublesome rule.

[00:08:45] Speaker 03:
And I think it gets at, you know, when we're looking at, you know, for applying the Ross factors, as Nunez did here, you know, it's clear that the rule exists, that these three factors for, to sort of exempt a situation.

[00:09:02] Speaker 03:
where the process is just so opaque that the non-citizen in this case cannot use it and cannot understand it.

[00:09:09] Speaker 03:
And I think that is the record that we have here.

[00:09:12] Speaker 03:
And unless the court has any further questions, I'm hoping to get to my statutory limitations point, but I will reserve any remaining time unless the court has questions about that.

[00:09:19] Speaker 01:
I don't think we do at this point.

[00:09:21] Speaker 01:
Thank you.

[00:09:29] Speaker 04:
Good morning and may it please the court, Rajesh Srinivasan for the United States.

[00:09:34] Speaker 04:
This court can affirm without waiting for the outcomes in Reed and Soto because the statute of limitations argument of the defendant fails even under a constructive knowledge theory and the defendant failed to exhaust her administrative remedies.

[00:09:48] Speaker 04:
Unless the court wants me to start elsewhere, I'll begin where my colleague started on the exhaustion of remedies.

[00:09:53] Speaker 04:
This case is on all fours with Nunez.

[00:09:56] Speaker 04:
In the defendant's opening brief, they argued that an unknowing and unintelligent waiver of appeal excused their compliance with subsection D1.

[00:10:06] Speaker 04:
That is the exact same argument that Nunez presented.

[00:10:09] Speaker 01:
It's not the same fact pattern.

[00:10:12] Speaker 01:
It's peculiar for the reasons that Judge Forrest has explained.

[00:10:16] Speaker 01:
We're told that there was a record kept but it's unintelligible.

[00:10:18] Speaker 01:
I looked hard to try and my clerk looked hard to try to figure how long this proceeding was because I was trying to envision how it would be that a person who didn't understand wouldn't have done something to call that to the attention of the IJ.

[00:10:31] Speaker 01:
But without knowing even how long the hearing is, it's very tough.

[00:10:34] Speaker 01:
And it's hard to imagine crafting a rules statement that couldn't wind up being applied to work real mischief in another case because we take these translation issues very, very seriously.

[00:10:43] Speaker 01:
So my question for the government is, why didn't we get something from the government telling us about whether or not the interpreter here did or did not have this particular dialect?

[00:10:53] Speaker 04:
I can't speak to the district court proceedings, unfortunately.

[00:10:57] Speaker 04:
I'd be happy to submit a letter if the court needs more information on that.

[00:11:02] Speaker 04:
But regardless, as you pointed out, the burden is on the defendant to show satisfaction of subsection D1.

[00:11:09] Speaker 04:
And the burden doesn't shift merely because she says in a declaration that she could not understand what the interpreter was saying.

[00:11:15] Speaker 02:
But doesn't Gomez say that the government has some burden to develop the record as well?

[00:11:19] Speaker 02:
And how, I mean, in this kind of a context,

[00:11:23] Speaker 02:
What's the petitioner going to do to present to the court what happened at the hearing when there was no record?

[00:11:29] Speaker 02:
And that's the immigration court, the government's role to create that record of the hearing.

[00:11:35] Speaker 04:
I understand the court's concern.

[00:11:37] Speaker 04:
But just as there are no perfect trials, there are no perfect immigration hearings.

[00:11:42] Speaker 02:
So I guess this case requires us to answer the question of who gets to bear the burden of that problem.

[00:11:48] Speaker 04:
And I think the burden is clearly on the defendant.

[00:11:50] Speaker 04:
because it is their burden to show that they've satisfied all available remedies.

[00:11:54] Speaker 01:
But what about the second prong?

[00:11:56] Speaker 04:
The second prong of the new judge.

[00:11:59] Speaker 01:
Of the test?

[00:12:00] Speaker 04:
Of the test.

[00:12:01] Speaker 04:
I think that's a better argument for the defense in that they have alleged that she did not understand anything that was happening in the proceeding, which would shift the burden to us to prove by clear and convincing evidence that any waiver was knowing and voluntary.

[00:12:17] Speaker 04:
To be clear, I think we have met that burden here because the available evidence is that she received a translation in Spanish informing her that she would have this hearing, that there would be procedures, and then the order itself says that the defendant waived her right to appeal.

[00:12:34] Speaker 04:
Given this evidence and given that the defendant did not specifically say she didn't understand she had a right to appeal, I think D2 is also not satisfied, but our better argument is on D1.

[00:12:47] Speaker 04:
I think the distinction, going back to your point Judge Christin, between Nunez and this case is one of

[00:12:54] Speaker 04:
being told a little bit about the appellate process and having an unknowing, unintelligent waiver versus what the defendant is alleging, which is pure silence.

[00:13:04] Speaker 04:
But even if we take that view of it, rather than the framing that the defendant presented in their opening brief of this being a waiver issue, we still can't meet the Ross framework.

[00:13:15] Speaker 04:
Because the mere silence of not informing the defendant of all their rights does not constitute a dead end.

[00:13:22] Speaker 04:
Nor does it constitute procedures that are so opaque or incapable of use that no ordinary immigrant could take advantage of them.

[00:13:31] Speaker 04:
And there's no evidence that the government thwarted the defendant's attempt to seek administrative relief.

[00:13:39] Speaker 02:
So let me give you the statement in Gomez that I'm just trying to figure out how I square with the argument that you're making.

[00:13:44] Speaker 02:
It says,

[00:13:45] Speaker 02:
We have said unmistakably that the government bears the burden of proving valid waiver in a collateral attack of the underlying removal proceedings.

[00:13:54] Speaker 04:
What do I do with that?

[00:13:59] Speaker 04:
Two points.

[00:14:00] Speaker 04:
On D2, I would agree that is a relevant issue for us.

[00:14:04] Speaker 04:
On D1, it is not.

[00:14:05] Speaker 04:
Because Nunez said that even if there were an unintelligent, unknowing waiver of appellate rights, that is still not enough to satisfy D1.

[00:14:15] Speaker 04:
So the defendant is in a situation where under either interpretation, she cannot prevail.

[00:14:23] Speaker 04:
Either she's arguing that it's an invalid waiver of her appellate rights, which Nunez tells us is not enough to excuse D1, or she's saying that she didn't understand anything, the issue's not a waiver, but the explanation of procedures, in which case she hasn't met her burden of proving any of the three buckets laid out by Ross and the Nunez court.

[00:14:48] Speaker 04:
And to go back to a point that you made in my colleague's argument, Judge Forrest, I don't think that the issue here is opaqueness.

[00:14:58] Speaker 04:
Because the first two categories of Ross are really about the process itself, not about the individual experience that the defendant had.

[00:15:07] Speaker 04:
So in order for the defendant to fit under the opaque bucket, she would need to show that the procedures as a whole

[00:15:16] Speaker 04:
The immigration procedures as a whole were so opaque that no ordinary immigrant could take advantage of them.

[00:15:23] Speaker 04:
And she cannot show that by the mere fact that we know that thousands of immigrants take advantage of this system every day.

[00:15:29] Speaker 02:
So let's play that out a little bit.

[00:15:31] Speaker 02:
I mean, I think that that's a valid argument for you to make for sure.

[00:15:34] Speaker 02:
But let's play it out a little bit and assume for the purposes of this question that the defendant has, or sorry, that the petitioner has actually shown

[00:15:42] Speaker 02:
that they just didn't understand what was going on through a translation problem, right?

[00:15:46] Speaker 02:
They've made that showing.

[00:15:47] Speaker 02:
I know you don't think they've made that showing here, but assume that they have.

[00:15:51] Speaker 02:
Then under this analysis, what would we do about that?

[00:15:55] Speaker 02:
Is it the government's position that that's just not a scenario that's going to trigger relief here?

[00:16:00] Speaker 02:
Or how would you walk that through the analysis?

[00:16:03] Speaker 04:
So I think if all we had were

[00:16:07] Speaker 04:
the fact that she did not understand anything, that would not be enough.

[00:16:11] Speaker 02:
But say... Under D1, just not enough, period.

[00:16:14] Speaker 04:
Period, because there was nothing that the government did to thwart the defendant.

[00:16:19] Speaker 02:
Except for, I mean, if it's true that the government was, you know, the court system provides translation services, that's a due process issue, right?

[00:16:27] Speaker 02:
And if the translation services that were provided were not effective, useful, doing their job, then doesn't the government have a role there?

[00:16:36] Speaker 04:
I think the government would have a role if the defendant said something like, I can't understand the interpreter.

[00:16:43] Speaker 02:
I mean, that's a rub here for sure.

[00:16:45] Speaker 04:
And if at that point the judge said, I don't care, this is the interpreter we have, you don't understand anything,

[00:16:52] Speaker 04:
whatever, I think it gets closer to machination, misrepresentation, that category.

[00:16:57] Speaker 04:
But that is not the evidence in the record that we have before this court.

[00:17:02] Speaker 04:
So unless the defendant can show that the government did something like what happened in Valdivia Soto to either mislead her or to prevent her from taking advantage of her remedies, the defendant cannot prevail under Ross, and it is her burden to do so.

[00:17:20] Speaker 01:
Do you want to address the statute of limitations?

[00:17:21] Speaker 04:
I would like to briefly address that as well, thank you.

[00:17:24] Speaker 04:
Under Zamudio, the presentation of a green card.

[00:17:29] Speaker 04:
at the border is not enough to trigger the government's knowledge, even under a constructive knowledge theory.

[00:17:36] Speaker 04:
So Zamudio removes that bucket from the defendant's argument.

[00:17:41] Speaker 04:
So what we're left with are two different instances that she says should have alerted authorities to her illegal presence, her updating files with the DMV in 2012, and her updating information with the Mexican consulate.

[00:17:57] Speaker 04:
Not only is

[00:17:59] Speaker 04:
Not only has the defendant made arguments about databases that are indisputably not in federal control, there's another issue with the argument, which is that even in circuits that have adopted a constructive knowledge framework, there's a two-step framework.

[00:18:19] Speaker 04:
The first framework is the government needs to know of the alien's presence in the country.

[00:18:24] Speaker 04:
And then the reasonable diligence framework comes on the second prong.

[00:18:28] Speaker 04:
which is the government needs to exercise reasonable diligence to show that they could have learned about the alien status.

[00:18:37] Speaker 04:
Those two instances, the 2012 DMV update and Mexican Consulate update, do not do anything to show immigration authorities her presence.

[00:18:49] Speaker 01:
I tend to agree with you.

[00:18:50] Speaker 01:
Could I just, since your time is running out, ask you to address an issue that I can't find where the district court addressed the last argument that she raised.

[00:18:59] Speaker 01:
the 2012 payment of court fees.

[00:19:03] Speaker 01:
I do not have it off the top of my head where... Your understanding that the district court addressed all of her statute of limitations arguments?

[00:19:10] Speaker 04:
That is my understanding.

[00:19:12] Speaker 02:
I've reviewed the record and I have the same concern that Judge Kristen has raised of I don't see how the district court has addressed the payment of court fees.

[00:19:20] Speaker 02:
I don't see that in the record.

[00:19:23] Speaker 04:
Even if the district court didn't address that under a harmless error analysis, that would not have been enough.

[00:19:29] Speaker 02:
I don't think the government has argued harmless error until just now, so why wouldn't that be forfeited?

[00:19:34] Speaker 04:
The court has discretion to apply harmless error, but I think because the argument was before the court, she considered it.

[00:19:43] Speaker 04:
And the court does not need to exhaustively explain every basis for denying a claim.

[00:19:47] Speaker 01:
OK.

[00:19:48] Speaker 01:
Thank you for your argument, counsel.

[00:19:49] Speaker 01:
We'll hear from opposing counsel.

[00:19:52] Speaker 01:
Could you please put a minute on the clock?

[00:19:55] Speaker 03:
Thank you, Your Honor.

[00:19:56] Speaker 03:
Just to start where my colleague left off, the court did not address the payment of court fees issue in its written decision.

[00:20:02] Speaker 01:
That your statute of limitations argument?

[00:20:03] Speaker 03:
On the statute of limitations argument.

[00:20:06] Speaker 03:
Nor did it, I think, address several defects in the deportation officer's declaration, which I think, as we've emphasized, warrant dismissal.

[00:20:14] Speaker 01:
What's your strongest prong two argument for the statute?

[00:20:17] Speaker 01:
The prong two of the statute.

[00:20:18] Speaker 01:
It feels like your prong one and prong two arguments are indistinguishable.

[00:20:23] Speaker 01:
I'm talking about the statute, D1 and D2.

[00:20:27] Speaker 03:
Oh, sorry, yes.

[00:20:27] Speaker 03:
Returning to 1326D.

[00:20:29] Speaker 03:
Yes.

[00:20:30] Speaker 01:
How is your D2 argument different from your D1 argument?

[00:20:33] Speaker 01:
Is it?

[00:20:34] Speaker 03:
It's not, except for the fact that I think in addition to the waiver that we've shown under D2, we've also shown under Ross that this process that was in place was so opaque as to be incapable of use.

[00:20:49] Speaker 02:
And regarding... Why isn't the government correct that that is really getting at the process itself and not maybe an individualized experience?

[00:20:58] Speaker 02:
I think that's a valid argument.

[00:20:59] Speaker 03:
So if I'm understanding your honor's question correctly, I think it does speak to the process, and I think the waiver is part of that process.

[00:21:08] Speaker 03:
And when you're looking at the question of opaqueness, the Supreme Court and Ross discussed this hide-and-seek approach that was in an 11th Circuit case.

[00:21:16] Speaker 03:
And I think that's exactly what happened here.

[00:21:18] Speaker 02:
The context that we see this more often is usually like in the prison context, where you've got some sort of administrative

[00:21:26] Speaker 03:
grievance exhaustion about you know whatever conditions problem that the Inmate has and you like you just can't even figure out this maze of things that are supposed to happen So it's not so much about active thwarting in the sense that it's made the process so complicated But what this height and seek approach that's discussed in Ross I think really gets at is just basically unknowable or

[00:21:48] Speaker 03:
a process that may be there, out there somewhere in the ether, but that the prisoner or the non-citizen in this case just can't find.

[00:21:57] Speaker 03:
And it doesn't necessarily require active thwarting, as my colleague has suggested.

[00:22:01] Speaker 03:
It's just access to information.

[00:22:03] Speaker 03:
And this court's recent decision in Eaton, as well as its en banc decision in Albino, go to that point in the PLRA context.

[00:22:12] Speaker 03:
And that's exactly what happened here.

[00:22:15] Speaker 03:
Miss Robles might have said, for instance, that she didn't understand the process during the proceedings, but we have no record ultimately of that.

[00:22:23] Speaker 03:
And I think given the stakes here ultimately, the court has to at least hold the government to some burden in this case of producing some sort of record of the proceedings.

[00:22:33] Speaker 01:
Thank you for your argument, counsel.

[00:22:35] Speaker 01:
Let me just make sure.

[00:22:36] Speaker 01:
Judge Smith, do you have any other questions?

[00:22:38] Speaker 00:
I do not.

[00:22:39] Speaker 01:
Okay.

[00:22:39] Speaker 01:
And Judge Forrest?

[00:22:40] Speaker 01:
All right.

[00:22:41] Speaker 01:
Thank you both for your arguments.

[00:22:42] Speaker 01:
We'll take that case under advisement and go on to the next case on the calendar.