[00:00:03] Speaker 05:
Please proceed.

[00:00:05] Speaker 00:
Good morning, Your Honors. Juan Roach on behalf of the petitioners. I'll reserve two minutes here for rebuttal.

[00:00:13] Speaker 00:
The issue here, the way the government frames this is that did the responder or respondents, this is for respondents, check all the boxes of Lozada?

[00:00:24] Speaker 00:
We believe that the issue here is did the respondent, in the manner that he presented the record, satisfy the purposes of Lozada. But before I even address that issue, this court could actually just decide it on whether or not there was ineffective assistance of counsel, even without Lozada.

[00:00:44] Speaker 02:
This court's- Can we? I think the ineffective assistance is obvious. But at least if we know that counsel was retained to file a notice of appeal, it's a different counsel than tried the case, right?

[00:00:59] Speaker 00:
That's correct.

[00:01:00] Speaker 02:
And so don't we at least need some information that somebody was timely retained to file a notice of appeal. I'm not sure we could skip all the requirements and just say, well, you filed it late and therefore it must be ineffective assistance without knowing what counsel puts in the motion. I was retained, et cetera. So I don't think we can just do it on the basis of the eventual failure to file. We must have some of the information that Lozada aims at us having.

[00:01:31] Speaker 02:
Isn't that correct?

[00:01:33] Speaker 00:
I would first, to the first question is, was it obvious? As Your Honor said, yes. And I believe this court's president says that alone is enough to alleviate or at least not even apply it. But I will address the court.

[00:01:46] Speaker 02:
But when it's a different counsel than the trial counsel, then it seems to me we do need additional information about the nature of their retention and when they were retained and whether or not it was in time to file a timely notice of appeal. Now, we have that here. But I'm pushing back on your notion that in this case, the mere fact that it was filed late excuses all of those audit requirements.

[00:02:10] Speaker 03:
We also know who filed it late.

[00:02:12] Speaker 00:
Yes, Judge Hurwitz.

[00:02:15] Speaker 00:
So if we look at the BIA opinion from, I believe it was from November, or April, I'm sorry, April of 2024, excuse me, November of 2024, the respondents here, I'm sorry, the BIA judge what she did was she referenced the April 29th BIA or BIA's decision to deny the motion for leave to file the untimely notice of appeal.

[00:02:46] Speaker 00:
So the court actually references that.

[00:02:50] Speaker 02:
Well, first of all, I think you started off by saying there's substantial enough compliance here under the circumstances. Let's assume you can't convince me that total noncompliance is okay. Tell me why what you did was enough.

[00:03:07] Speaker 00:
Your Honor, we...

[00:03:09] Speaker 00:
Our reading, at least of this case law here, like Correa and other cases, is that the Lozada supplies sort of methods to determine whether there was any sort of collusion between the parties here. That's really the purpose of Lozada. It's not necessarily about the factors or what exactly the evidence is. It's like, can we show that there's trustworthiness about the ineffective assistance between the parties of collusion? In this case, there was, because Marcus had actually filed a notice or when she filed a motion, for leave for untimeliness. She clearly said there was a contract.

[00:03:40] Speaker 00:
I was aware of the deadline. And so all of those things were actually referenced in the BIA.

[00:03:44] Speaker 02:
Rosada, in order to avoid the problem, says we want an affidavit from the client and we want an affidavit from the counsel. And neither of those are present here.

[00:03:57] Speaker 02:
The counsel's statement occurs in a motion. It's not sworn. There's no statement by the client.

[00:04:04] Speaker 02:
Why shouldn't... why shouldn't you at least be required to follow the procedural requirements of Lozada?

[00:04:11] Speaker 00:
Judge Sherwood, we would argue that the respondent did actually satisfy those factors of Lozada. When Marcus filed a motion for leave to file the untimely notice, she wrote on there, I had an agreement. No, I know what she said. Right.

[00:04:27] Speaker 02:
And she said at the end of it, and I swear under penalty of perjury that all this is true, No problem. I'm trying to figure out, you didn't, very easy to comply with those two procedural requirements, and nobody attempted to. Why should we excuse that?

[00:04:45] Speaker 00:
We don't think that the court has to excuse that. I believe in the Korea opinion, Judge Kaczynski talks about, I believe, Rule 803, where they talk about the trustworthiness of the party. And here, Marcus did that. Again, I would argue that the purpose of Lozada is to ensure that there's no collusion. And so when Marcus files that she knows that she's subjecting herself to a bar complaint criminal liability if she's not trustworthy in that pleading so we believe that those auto factors had been actually satisfied when she filed that and then in fact the.

[00:05:17] Speaker 00:
With the motion there, the court there didn't, I think, incorporated that decision by the judge denying that. The first sentence says by decision of April 29th, 2024, the board summarily dismissed. So part of her finding includes Marcus's motion for leave to untimely file the notice of appeal. So we believe that that itself.

[00:05:39] Speaker 05:
Is it your argument that at least some of the three elements of Lozado were in fact complied with here?

[00:05:46] Speaker 00:
That's correct. So part of it is like... Which ones? Well, the first two. It's like, did you give counsel the opportunity to notice, to defend herself? Well, Marcus has fallen on her sword and said, yeah, I was ineffective.

[00:05:58] Speaker 02:
You're arguing that the purposes of the first two requirements were...

[00:06:02] Speaker 02:
but the purpose is the first two requirements.

[00:06:04] Speaker 00:
That's correct. That's the distinction here. They were satisfied because Marcus herself says, I was ineffective. She fell on her sword, so she satisfies the last two. And we know from the Korea opinion, it's not required to file a bar complaint to do that from the reasoning there that Judge Kaczynski noted there. So that's why... Judge Smith, we believe that she had, or excuse me, the respondents had complied with the Lozada factors.

[00:06:29] Speaker 03:
We do have several cases that say that where the ineffectiveness is obvious, you don't have to necessarily comply with Lozada. Now, Judge Hurwitz points out that we at least have to know that this was, in fact, her lawyer and that she wasn't supposed to do it, but we have that.

[00:06:48] Speaker 03:
AND BEYOND THAT, GIVEN THE NATURE OF THIS INEFFECTIVENESS, IT'S NOT CLEAR YOU NEED ANYTHING ELSE.

[00:06:55] Speaker 00:
THAT'S CORRECT. THAT'S CORRECT. SO HER APPELLATE COUNSEL, I BELIEVE IT WAS HASSAN, I BELIEVE IT WAS HASSINI, SHE DIDN'T EVEN RAISE THE LOZADA FACTORS. SHE ARGUED THAT IT WAS SO OBVIOUS THAT SHE WAS INEFFECTIVE FOR FAILING TO TIMELY FILE THE NOTICE OF APPEAL THAT THAT WAS THE ONLY ISSUE SHE RAISED. YET WHEN THE BOARD ISSUED THE She didn't even address that question. She simply went to those artifacts.

[00:07:21] Speaker 03:
One other technical question is, ordinarily, even when you have a failure to file a brief, you need some kind of look at the merits. But my understanding is that the government here specifically I don't know, waived that issue, but told us not to reach it because the Board didn't reach it, and therefore, if we think the Lozada factors either were met or don't need to be met, we should remand. Is that your understanding of where we are? We don't need any look at the merits?

[00:07:53] Speaker 00:
Right. We don't think we need to look at the merits. We could remand the case for the Board of Immigration Appeals to look at that issue because that was the purpose that they denied it.

[00:08:01] Speaker 02:
Let me ask you a question about that. Normally, in order to establish ineffective assistance, You've got to show prejudice.

[00:08:10] Speaker 02:
Do you have to show it to us, or is that an issue on remand to the board?

[00:08:15] Speaker 00:
We believe we've shown the prejudice here in the opening brief here.

[00:08:18] Speaker 02:
Well, I'm not sure. Let's assume that the appeal would have failed miserably.

[00:08:25] Speaker 02:
And then you wouldn't have been prejudiced by the ineffectiveness of counsel.

[00:08:32] Speaker 00:
filing the notice late now I'm not sure we can tell from this record because we don't know what would be argued on appeal but don't you have to establish that in front of somebody we do but the case law from the circuit shows that when the respondent is completely not had an opportunity to submit their case for review there was an asylum hearing here that was the whole purpose here to have the BIA then review it, the respondents were denied complete due process by not allowing the Board of Immigration Appeals to review.

[00:09:05] Speaker 03:
But there is some case law that suggests, and it's a little confused, but that you do have to at least demonstrate some viability of the merits. But the government here specifically told us not to do that ourselves. That's my understanding of their brief.

[00:09:23] Speaker 02:
At least they asked us not to do it. I'm asking you with us and the BIA to have to do it.

[00:09:29] Speaker 00:
I go back to my, I only have about 30 seconds here, Your Honor. I go back to my answer is that when a case like this where there's not a notice filed timely and it's denied, the respondents are per se prejudiced because they've never had a chance to present their case. So from just that standpoint, no prejudice is assumed. I'll like to just, like I said, reserve a minute or so for rebuttal.

[00:09:51] Speaker 05:
Very well. Here we go.

[00:10:03] Speaker 04:
May it please the court.

[00:10:05] Speaker 04:
There's a court here. May it please the court, Alana Young for the Acting Attorney General. Lozada was intended, Your Honors, to ensure both that there is an actual adequate factual basis that exists in the record for the complaint and that the complaint is legitimate and substantial.

[00:10:22] Speaker 02:
Is there any doubt whatsoever in this case that all those purposes have been met on this record?

[00:10:30] Speaker 04:
There is doubt, Your Honor.

[00:10:32] Speaker 02:
We know she filed it late. You don't dispute that.

[00:10:37] Speaker 02:
We know she filed the notice of appeal late.

[00:10:39] Speaker 04:
Yes, Your Honor.

[00:10:40] Speaker 02:
Okay. We know, because she's told us, exposing herself to malpractice suits and otherwise, that I was retained, I meant to file it on time, but I erred.

[00:10:54] Speaker 02:
Yes? Yes, Your Honor.

[00:10:59] Speaker 02:
Okay. And we certainly know the nature of the malpractice ineffective assistance that the petitioner is alleging in this case, which is that it was filed late. So...

[00:11:10] Speaker 02:
It seems to me we all understand that this petitioner was the victim of malpractice or ineffective assistance by counsel. And what you're relying on is, well, but he didn't dot all the I's and cross all the T's. And I guess my question is, if the purpose of the I's and the T's was met on this record, you're from the Department of Justice. Doesn't justice require that we send this back?

[00:11:38] Speaker 02:
Even if technical adherence to previous cases does not?

[00:11:41] Speaker 04:
No, Your Honor. The governance position is more nuanced than that because Lozada had specific policies goals for each of the three requirements, and each of those policy goals were not achieved here.

[00:11:53] Speaker 02:
Tell me which policy goal was not achieved.

[00:11:55] Speaker 04:
All three of them, Your Honor. First, the affidavit. The reason why this court and Lozada requires an affidavit is because affidavits are given under penalty of perjury, and they provide... The primary factual basis in the record.

[00:12:08] Speaker 02:
So do you think counsel was lying in her motion when she said, I was hired in time, but I failed to file this on time? Do you think that motion would have more weight if at the end of it she said, and I attest under penalty of perjury, that I screwed up?

[00:12:25] Speaker 04:
Yes, Your Honor. Why? Because statements in motions, as this court has recognized, is not evidence. And if the statements does not have the same weight or potential consequences as a sworn affidavit.

[00:12:39] Speaker 03:
It certainly has consequences. I mean, if she was practicing before the board and she lied in her motion in her own voice, I mean, not in a representative voice, aren't there consequences if she was found to be lying?

[00:12:55] Speaker 04:
We don't, and we don't know whether she's practicing before the board. And we don't know whether she's lying, your honor. That's, that's why we want, that's why the point purpose of Lazada is for her to provide that.

[00:13:07] Speaker 02:
You were here for the last argument. Your, your colleague said stuff in pleadings is very important and we can rely on it and, and you shouldn't be able to change it. Well, Here's a motion where a person says, I screwed up. I'm willing to face the consequences because I screwed up. And we know she screwed up because the motion was filed. The notice of appeal was filed late.

[00:13:32] Speaker 03:
And she filed it in her own name. So we know who filed it.

[00:13:35] Speaker 02:
So I'm just, I mean, what we're really fighting about here, what you're really fighting about here is, well, yeah, but Lozada says it has to be in an affidavit. where Lozada says the client must also provide an affidavit. But it seems to me perfectly clear on this record that there was ineffective assistance of counsel. Why isn't that enough for us just to send it back to the BIA to let them figure out what happens after that?

[00:14:02] Speaker 03:
Because, Your Honor, Lozada requires, because... Don't we also have several different cases, which you haven't so far acknowledged, that say in the brief or otherwise... that if it's plain on the face that there was ineffective assistance, Lozada doesn't have to be met.

[00:14:21] Speaker 04:
Yes, Your Honor. Those cases determined that Petitioner independently satisfied Lozada's policy goals.

[00:14:28] Speaker 03:
We don't- No, actually what they said was that because it was obvious on his face that there was ineffective assistance, they satisfied Lozada's policy goals.

[00:14:39] Speaker 04:
But none of those cases excuse no attempt To comply with Lizada's, Your Honor?

[00:14:43] Speaker 03:
Yes, they do. Yes, they do. You said that in your brief, Senator, that they do, but yes, they do.

[00:14:47] Speaker 04:
Any attempt?

[00:14:48] Speaker 03:
They say flatly that if it's obvious that there was ineffective assistance, then you don't have to do it, Your Honor.

[00:14:57] Speaker 04:
He didn't even make any attempt, Your Honor, to comply with Lizada's.

[00:15:00] Speaker 03:
I understand that, but I'm telling you what the cases say, which is you don't have to make an attempt if it's obvious on its face.

[00:15:06] Speaker 04:
Your Honor, the government disagrees. The cases that we've listed, including Korea, that petitioner... Korea actually had both pieces.

[00:15:14] Speaker 03:
First it said it met it, and then it said, and besides, you don't have to.

[00:15:18] Speaker 04:
And petitioner opposing the ineffective counsel in that case actually had included a sworn declaration. In this case, we don't have anything...

[00:15:28] Speaker 04:
The record does not indicate that prior counsel whose dignity and competence is being impugned has been notified that there is a claim against her. That's absent from the record, Your Honor.

[00:15:39] Speaker 02:
She must have been notified. She filed a motion that said, I filed this late.

[00:15:46] Speaker 02:
Would you think that just occurred to her out of thin air? She knew that she had filed it late, and she knew that's what the problem was.

[00:15:56] Speaker 04:
But we don't have that in the record indicating that she knows that she's been notified and she should respond.

[00:16:01] Speaker 02:
She responded. She signed a motion that said, I filed this late. Now, you're saying we lack the formal accusation by the client that she filed it late?

[00:16:13] Speaker 04:
We lack the notification, and it's important in this case, Your Honor, because she doesn't actually explain why she filed it late. She said she filed it late, but she doesn't explain.

[00:16:23] Speaker 03:
What's the difference why she filed it late?

[00:16:25] Speaker 04:
It does make a difference, Your Honor, because it's essential information where the board can assess the veracity of the ineffective assistance of counsel claim.

[00:16:35] Speaker 02:
That is the purpose and the goal of the... Is there any excuse for filing a notice of appeal late?

[00:16:41] Speaker 02:
If she... I... I think it's an easy question.

[00:16:47] Speaker 03:
I shouldn't say I sent it in on time, but it got there late. She didn't say... She said, I filed it late. I sent it in late.

[00:16:55] Speaker 04:
As part of the LASADA requirements, one is the procedural requirements, and two is the substantial whether they met the substantial requirements. And that goes into whether the defectiveness was egregious and whether there was prejudice. And the government's position is that this court under Chenery is limited to just the procedural requirements, and this court should remand for the board to consider the substantial requirements. And the substantial requirements require egregious conduct and prejudice. And part of that egregious conduct is to show the board would have to require, need essential facts to show, to determine whether petitioner whether the conduct was egregious.

[00:17:33] Speaker 04:
And so if she missed, and that's the board's determination, Your Honor, that should be left to the board to decide.

[00:17:38] Speaker 02:
The board's never made that determination here.

[00:17:40] Speaker 04:
The board did not reach that determination, Your Honor. The board's reference to April, its prior decision in April, was just the background to indicate here's where we are now.

[00:17:48] Speaker 01:
We dismissed the appeal correctly.

[00:17:50] Speaker 04:
Yes, Your Honor.

[00:17:50] Speaker 01:
Because the notice was filed late.

[00:17:52] Speaker 04:
Under Chenery, this court's review is limited to the board's November decision, just the procedural requirements of Lozado.

[00:18:01] Speaker 03:
Therefore, we don't address the prejudice question.

[00:18:04] Speaker 04:
Yes, Your Honor.

[00:18:09] Speaker 05:
Other comments? Questions by my colleagues?

[00:18:14] Speaker 03:
Not for me.

[00:18:15] Speaker 03:
No.

[00:18:16] Speaker 05:
Very well. You have a tiny little bit of time left, but at least you gave me a chance to stand up.

[00:18:23] Speaker 05:
Thank you.

[00:18:29] Speaker 00:
In Rodriguez-Larizal's, this court said, these Lozada factors are intended to ensure both an adequate factual record exists for an effectiveness complaint and that the complaint is a legitimate and substantial one. These factors are not rigidly applied, especially when the record shows a clear and obvious case of ineffective assistance. So the court doesn't have to decide this on Lozada because she failed to file it So that alone, the court can remand. But even if the court did decide here, there is record, there's ample evidence in the record that Marcus fell on her sword, she admitted fault, and all of that shows that there was no collusion between the parties.

[00:19:07] Speaker 00:
And I think that's the essence of Lozada here, is that can there be any sort of collusion? Is the statement trustworthy? And the answer here is yes, because Marcus is subjecting herself to a malpractice claim, obviously criminal penalties, and she's an officer of the court, and so under the Arizona rules and ABA rules, she has to have the candidate of the court, and the court can sanction her. So we ask that the courts vacate and remand the decision.

[00:19:31] Speaker 05:
Very well, thank you very much to both counsel. The case of Aviles Martinez versus Blanche is submitted.