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

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

[00:00:01] Speaker 00:
May it please the Court, Benjamin Wiesinger for the petitioner, Victor Colindres.

[00:00:05] Speaker 00:
And on behalf of my client, I appreciate the notice and opportunity to be present in these proceedings.

[00:00:14] Speaker 00:
In fact, I believe I received no fewer than four, maybe even five, notices of this proceeding.

[00:00:21] Speaker 00:
The question before the panel is, why was just the one notice supposedly good enough

[00:00:28] Speaker 00:
to deny my client's statutory right to be here today on the merits of his appeal, denying asylum.

[00:00:35] Speaker 01:
I'm sorry, I didn't understand what you meant that you received five notices.

[00:00:38] Speaker 01:
Of what?

[00:00:38] Speaker 01:
From whom?

[00:00:39] Speaker 00:
Emails from the court.

[00:00:40] Speaker 00:
Oh.

[00:00:43] Speaker 00:
And had I not, for example, responded, had I not filed my acknowledgement of this hearing, a staff member of this court would have called me and said, counsel, are you going

[00:00:56] Speaker 00:
proceed on this case, are you going to be here in court today?

[00:00:58] Speaker 00:
And I would have said, oh, yes.

[00:01:00] Speaker 00:
Thank you for calling, Your Honor, or calling, and I will get that filed right away.

[00:01:06] Speaker 00:
It's happened before.

[00:01:06] Speaker 00:
It'll happen again.

[00:01:08] Speaker 00:
And that was all it would have taken for the Board of Immigration Appeals to notify my client that his appeal had been dismissed.

[00:01:17] Speaker 03:
All right.

[00:01:17] Speaker 03:
Well, at the time that that occurred, Rivero Valdez, the en banc court, had not come out.

[00:01:24] Speaker 03:
We're talking about that.

[00:01:26] Speaker 03:
So Respondent asserts that you failed to adequately raise a due process issue based on the BIA's failure to take adequate steps to provide notice, and so we should not apply Rivera-Valdez rule to this case.

[00:01:41] Speaker 03:
What's your best argument that you preserve this due process argument?

[00:01:46] Speaker 00:
Your Honor, the regulations that the government references

[00:01:51] Speaker 00:
are there in order to provide the process that is due.

[00:01:56] Speaker 00:
You can't separate one from the other.

[00:01:58] Speaker 00:
That's my best argument in response to that, Judge Callahan.

[00:02:02] Speaker 00:
And in Rivera-Valdes, the court actually said, we are explicitly saying what has been underlying our decisions all along.

[00:02:14] Speaker 00:
And so it's not like Rivera-Valdes announced a brand new

[00:02:21] Speaker 00:
holding a brand new process.

[00:02:25] Speaker 00:
It merely incorporated what already had been.

[00:02:29] Speaker 03:
Well, I don't think all of us agreed on that.

[00:02:31] Speaker 03:
It was a 6-5 decision, and was it an eye on the five?

[00:02:34] Speaker 00:
Yes, you were, Your Honor.

[00:02:35] Speaker 03:
Yes, so maybe.

[00:02:36] Speaker 03:
But I agree to be bound by it at this point.

[00:02:40] Speaker 03:
So the question is, do we just remand it to the BIA to consider it in the first instance if it changes it?

[00:02:50] Speaker 03:
Or are you arguing that you just win outright?

[00:02:54] Speaker 00:
Oh, I swing for the fences, Judge.

[00:02:57] Speaker 00:
I think we win outright on Rivera Valdez.

[00:02:59] Speaker 00:
It is fully dispositive of this case.

[00:03:01] Speaker 01:
But there's a real distinction, isn't there?

[00:03:03] Speaker 01:
In this instance, what he didn't get was not the notice to appear in the first instance for his hearing.

[00:03:13] Speaker 01:
What he didn't get was the notice of the BIA's decision

[00:03:18] Speaker 01:
And therefore, what he didn't do was file a petition for review in this court.

[00:03:21] Speaker 01:
Is that right?

[00:03:22] Speaker 00:
That's exactly right, Your Honor.

[00:03:23] Speaker 01:
So it isn't directly on point, in fact.

[00:03:27] Speaker 00:
I don't see a difference.

[00:03:29] Speaker 00:
Because, as I said in my 28-J letter, the functional outcome is the same.

[00:03:36] Speaker 00:
If my client hadn't appeared for court, he would have been ordered deported in absentia.

[00:03:40] Speaker 00:
He didn't get his hearing.

[00:03:41] Speaker 01:
Oh, yes.

[00:03:42] Speaker 01:
But to me, the question is, is the result then

[00:03:47] Speaker 01:
that he wins or that he has to show prejudice, which means we look at his appeal and decide whether there's anything to appeal.

[00:03:55] Speaker 00:
Your Honor, I don't believe that whether he has a possibility of winning on appeal is even before the court, because the right to file a petition for review in this court is statutory.

[00:04:09] Speaker 00:
It's statutory.

[00:04:10] Speaker 00:
It's not, you know, well, maybe he should, maybe he shouldn't.

[00:04:14] Speaker 00:
He had the right to seek review in this court, and he was unable to pursue that right.

[00:04:18] Speaker 01:
But what if we can just tell from looking at the material we have now, because it's developed, unlike at the notice of hearing stage when he didn't have a chance to do anything, that there's no chance he could prevail in a petition for review?

[00:04:31] Speaker 00:
Well, the BIA's decision denying asylum was based purely on a legal question, nexus.

[00:04:38] Speaker 00:
And we've been fighting over nexus to a protected ground ever since I've been

[00:04:43] Speaker 00:
a member of the bar, and it's always a question of law based upon the facts of a particular case.

[00:04:50] Speaker 01:
Okay.

[00:04:51] Speaker 01:
That's why we could have decided right now that he doesn't, I don't know if he does or doesn't, but we could decide right now whether he has any chance of prevailing.

[00:05:00] Speaker 00:
I all disagree with you, Your Honor, because that is not before the court.

[00:05:04] Speaker 00:
The only thing that's before the court is whether he received notice and opportunity.

[00:05:07] Speaker 01:
But I'm asking you, this is a due process claim, doesn't it?

[00:05:10] Speaker 01:
You have to show prejudice, usually.

[00:05:12] Speaker 01:
Now, in the Rivera Valdez situation, what he didn't get was a hearing at all, nothing.

[00:05:23] Speaker 01:
So there's no way one can tell what would have happened at the hearing, and it seems futile to talk about pressures.

[00:05:31] Speaker 01:
But in this instance, we have a complete record, or we could have a complete record as to whether he has any chance of prevailing or not, right?

[00:05:42] Speaker 00:
In theory, yes, because it's all there, but that question is simply not before the court.

[00:05:48] Speaker 00:
One of the things that Rivera-Valdes... I'm not understanding.

[00:05:50] Speaker 01:
I'm wondering why it isn't before the court, and it's a question of whether he has shown prejudice for purposes of due process.

[00:05:59] Speaker 00:
The denial of the statutory right to appeal is the prejudice.

[00:06:03] Speaker 00:
I'm going to die on that hill.

[00:06:05] Speaker 01:
And the court... I mean, it happens that... We have another case on the calendar.

[00:06:12] Speaker 01:
involves inspective assistance in not filing an appeal to this petition for review to this court.

[00:06:20] Speaker 01:
And we have a question of what, and in fact our case law, although I don't know that it's necessarily right, does look at the merits of the appeal, of the petition at that point.

[00:06:33] Speaker 00:
I would argue that's a completely different scenario because an IAC claim necessarily involves the question of whether

[00:06:39] Speaker 00:
competent counsel's assistance would have made a difference.

[00:06:43] Speaker 00:
My client was not counseled during the BIA appeal, and that's really not even relevant for the court's disposition anyways.

[00:06:49] Speaker 04:
But I think your Rivera-Valdes argument is a due process argument, right?

[00:06:54] Speaker 04:
Because Rivera-Valdes framed it as a due process issue?

[00:06:57] Speaker 00:
Correct, Your Honor.

[00:06:58] Speaker 04:
And so usually a due process violation has a prejudice prong.

[00:07:02] Speaker 00:
So there are three of them, actually, that the majority noted in Rivera-Valdes.

[00:07:09] Speaker 00:
Prejudice, administrative exhaustion, and deprivation of judicial review.

[00:07:17] Speaker 00:
That's why we're here, Your Honors.

[00:07:19] Speaker 00:
I'd like to reverse my time for rebuttal, if that's okay?

[00:07:22] Speaker 03:
Are you sure your question answered or did you want a further probe?

[00:07:28] Speaker 00:
I'm here.

[00:07:30] Speaker 03:
I guess I'll let you sit down.

[00:07:31] Speaker 03:
Thank you, Judge Friendly.

[00:07:32] Speaker 03:
Think about it.

[00:07:33] Speaker 03:
Sounds like she wants a little more answer to that.

[00:07:35] Speaker 00:
I'll be ready.

[00:07:36] Speaker 03:
Okay.

[00:07:42] Speaker 02:
Good morning.

[00:07:43] Speaker 02:
Good morning.

[00:07:44] Speaker 02:
May it please the court, Christopher Pryby for the Attorney General.

[00:07:48] Speaker 02:
For the reasons laid out in the government's 28-J response letter, this Rivera-Valdes issue is not properly before this court.

[00:07:58] Speaker 02:
And on the issues that have been presented, the government's arguments in its briefs lay out why the board's precedent does not support the petitioner's argument in his opening brief.

[00:08:12] Speaker 03:
Well, what if we don't agree with you, then what do we do?

[00:08:15] Speaker 03:
I'm not saying that we don't or that we do, because we don't conference until after we have oral arguments.

[00:08:22] Speaker 03:
But if we don't agree with, if we say, okay, it is before the court, then what's the next step?

[00:08:30] Speaker 02:
If the Rivera-Valdes issue, if you do find it before the court, then

[00:08:36] Speaker 02:
it can't be he wins automatically because there has been no factual development below.

[00:08:41] Speaker 02:
The motion to reopen, he merely alleges facts that are in the record as to what happened to

[00:08:54] Speaker 02:
the circumstances surrounding is not receiving notice.

[00:08:57] Speaker 03:
Well, we don't really know if Rivera-Valdes is.

[00:09:01] Speaker 03:
That case didn't say it was retroactive, right?

[00:09:04] Speaker 03:
We don't really even know if it's retroactive, right?

[00:09:09] Speaker 02:
That would be a question that the government would request supplemental briefing on if this court is interested, and I am not prepared to speak to whether it is retroactive.

[00:09:17] Speaker 03:
Well, did the case, did the

[00:09:18] Speaker 03:
Did Rivera-Valdes say specifically it was retroactive?

[00:09:22] Speaker 03:
I do not believe it did.

[00:09:23] Speaker 01:
Is this a retroactivity problem, though?

[00:09:25] Speaker 01:
I mean, the issue in Rivera-Valdes was the application of well-established due process law in particular circumstances.

[00:09:38] Speaker 01:
So retroactivity usually arises when there's a groundswell difference, change.

[00:09:47] Speaker 01:
Would there even be a retroactivity problem here?

[00:09:50] Speaker 02:
Your Honors, I'm not prepared to speak to retroactivity.

[00:09:52] Speaker 01:
Well, that's a little peculiar because we did ask you to address Rivera Valdez and how it applies here, didn't we?

[00:09:58] Speaker 02:
Your Honor, the answer the government is giving is that it does not apply here.

[00:10:03] Speaker 02:
And if this court believes it should apply, then it should be remanded.

[00:10:07] Speaker 02:
Why do you think it doesn't apply?

[00:10:09] Speaker 02:
I'm sorry, it does not apply.

[00:10:10] Speaker 02:
I misspoke.

[00:10:12] Speaker 02:
It should not be reached here.

[00:10:14] Speaker 02:
It is not properly before this court.

[00:10:15] Speaker 04:
And you're saying that because

[00:10:16] Speaker 04:
he didn't in his brief mention Rivera Valdez, which didn't exist yet?

[00:10:22] Speaker 02:
No, Your Honor.

[00:10:22] Speaker 02:
I'm saying that because he did not argue a cogent due process claim at all in his blue brief.

[00:10:28] Speaker 02:
All he argued was that the board did not follow its own precedent.

[00:10:31] Speaker 04:
I mean, your response to his brief has a whole section.

[00:10:35] Speaker 04:
He has not articulated a separate violation of due process.

[00:10:38] Speaker 04:
He doesn't make a clear argument.

[00:10:40] Speaker 04:
you're talking about it because he mentioned due process enough and now there is a case that is supporting the due process argument maybe better than he had one at the time when he was talking about due process in a vague way.

[00:10:53] Speaker 04:
So I'm not sure why that doesn't preserve due process given that he talked about due process and then this case that's pretty on point came after.

[00:11:02] Speaker 02:
Generally, you have to raise and specifically argue an issue under this court's precedent in order to preserve it for review.

[00:11:10] Speaker 02:
Martinez Serrano, B-I-N-S, is the one that I think of offhand that states an issue that is raised but is not specifically argued.

[00:11:18] Speaker 04:
But his brief is all about how he didn't get the notice, right?

[00:11:21] Speaker 04:
So it's not like you didn't know what he was talking about as the problem he was upset about.

[00:11:25] Speaker 02:
He did not actually state in his statement of facts, I think I laid this out in my 28-J letter, but he did not even raise as a relevant fact that the decision was returned in the mail.

[00:11:40] Speaker 02:
And also, he did not challenge the board's finding that he did not show or argue that service was effective.

[00:11:52] Speaker 02:
That's something the board said in this case.

[00:11:55] Speaker 03:
Where do I get the information about he said when he got released from custody that he was talking to people

[00:12:03] Speaker 03:
And he makes representations that he said, well, don't worry about it.

[00:12:07] Speaker 03:
We got it covered.

[00:12:08] Speaker 03:
We'll let them know where you are or whatever.

[00:12:12] Speaker 02:
So that would have to be developed on remand.

[00:12:14] Speaker 02:
Right now, those are just allegations in the motion to reopen.

[00:12:19] Speaker 02:
There are no fact finding has been made on that issue.

[00:12:21] Speaker 01:
As to whether the due process issue was raised, he did allege those facts as pertinent to a due process claim.

[00:12:32] Speaker 02:
He raised the facts, I'm sorry, he also did not articulate a due process violation at all in his motion to reopen.

[00:12:43] Speaker 02:
He did not make an argument that due process was violated.

[00:12:48] Speaker 02:
He stated due process is required and then he says he was diligent and he took efforts to

[00:12:57] Speaker 01:
That's part of his due process argument.

[00:13:00] Speaker 01:
He should have gotten due process because he was diligent.

[00:13:03] Speaker 01:
It was a due process argument.

[00:13:05] Speaker 01:
No, Your Honor, it was not framed in terms of... What was it, if it wasn't a due process argument?

[00:13:09] Speaker 02:
He does not rely on due process and the substantive due process, not substantive due process law, not substantive due process.

[00:13:16] Speaker 01:
Then what was it?

[00:13:18] Speaker 02:
He relies on board precedent saying... Well, he's citing Matthews v. Aldrich.

[00:13:22] Speaker 02:
Isn't that a key due process case?

[00:13:25] Speaker 02:
He cites it, but he does not use it in his analysis at all.

[00:13:28] Speaker 03:
Okay, let's say hypothetically we don't agree with you on that, or at least two people don't agree with you on that.

[00:13:37] Speaker 03:
Is then the proper, from your perspective, would the proper, he wants to win here outright.

[00:13:44] Speaker 03:
He wants his petition grant, you know, he wants, would the proper procedure in your view be to remand it and for,

[00:13:53] Speaker 03:
the BIA to consider in the first instance Rivera Valdez?

[00:13:58] Speaker 02:
If this court finds that the issue was exhausted, was not forfeited, or and that this court is not abusing its discretion by considering the issue after injecting it into the case after when the petitioner did not raise it, then yes, the correct answer would be for remand for review in the first instance by the board.

[00:14:20] Speaker 01:
And do you have a position on the question I raised about

[00:14:23] Speaker 01:
the difference between this case and Rivera Valdez and whether that has any implications for the due process claim as to the necessity to show some plausibility as to the possibility of prevailing on the petition for review.

[00:14:39] Speaker 01:
Here, whatever problem there is, is at the stage of this court, really.

[00:14:45] Speaker 01:
In other words, the problem was not getting the notice, but the consequence was not filing a petition for review in this court.

[00:14:53] Speaker 01:
So the question is whether this court ought either now or later to look at the merits of what a petition for review would have covered.

[00:15:06] Speaker 02:
I think in the first instance, the board needs to decide that question and therefore all rely on Chenery.

[00:15:12] Speaker 01:
The government cannot take... Or a particular version of Chenery because what they would be projecting is what this court would have done, not what it would have done.

[00:15:20] Speaker 01:
I don't follow, Your Honor.

[00:15:23] Speaker 01:
This was about the fact that he wasn't able to file a petition for review in this court, right?

[00:15:35] Speaker 01:
So if giving any difference to the board as to what it thinks would have been the merits of the petition for review is a little peculiar because it's really about this court.

[00:15:52] Speaker 02:
I disagree that it's about what this court is doing.

[00:15:55] Speaker 02:
I think the proper scope of the remand is what reasonable steps would have been taken.

[00:16:00] Speaker 01:
Well, I understand that, but I'm going, suppose it was determined that Rivera Valdez does apply and that reasonable steps should have been taken and were.

[00:16:09] Speaker 01:
Then what?

[00:16:12] Speaker 01:
Is that the end?

[00:16:13] Speaker 01:
Does he win?

[00:16:14] Speaker 02:
I see, Your Honor.

[00:16:18] Speaker 02:
I'm not prepared to speak to that question.

[00:16:21] Speaker 02:
I would need supplemental briefing to articulate the government's position on that question.

[00:16:29] Speaker 04:
It doesn't seem like the government is arguing that his due process claim fails because he didn't show prejudice.

[00:16:34] Speaker 04:
You're not even saying that today and you didn't say it in your letter.

[00:16:37] Speaker 04:
I mean, I take it that you're not arguing this question that Judge Berzon is asking.

[00:16:46] Speaker 02:
what the government perceived the scope of this argument or the question to be.

[00:16:51] Speaker 01:
That's peculiar, but okay.

[00:16:55] Speaker 01:
We've been getting a lot of this.

[00:16:56] Speaker 01:
People standing up and saying I'm not prepared to argue.

[00:16:59] Speaker 01:
We've asked you a question.

[00:17:00] Speaker 01:
I was once in the Supreme Court when something like this happened and Justice Rehnquist said to the government, well, you're here on behalf of the people and I want you to answer that question.

[00:17:10] Speaker 01:
I'm not going to tell you that, but it is really the responsibility of government lawyers

[00:17:15] Speaker 01:
address the whole of the question that's asked.

[00:17:20] Speaker 03:
All right, anything additional?

[00:17:28] Speaker 02:
The government will stand on its arguments presented to this Court.

[00:17:31] Speaker 02:
Thank you.

[00:17:31] Speaker 03:
Thank you.

[00:17:36] Speaker 00:
Judge Friedland, I'm all yours.

[00:17:39] Speaker 04:
Well, so I think that

[00:17:47] Speaker 04:
You heard Judge Berzon's question.

[00:17:49] Speaker 04:
So I think one question is, are you going to be able to show prejudice?

[00:17:52] Speaker 04:
It seems like the government isn't arguing the opposite, but that would be one thing.

[00:17:55] Speaker 04:
What are you going to do if you get reopening this opinion reissue so that you can appeal to us?

[00:18:01] Speaker 04:
Is there any hope that you're going to be able to say something at that point?

[00:18:05] Speaker 00:
Well, of course, Your Honor.

[00:18:07] Speaker 00:
And again, the BIA dismissed my client's, the merits of his appeal solely on the legal question of whether he established a nexus.

[00:18:16] Speaker 00:
between the harm he alleges or the fear he alleges and his protected ground.

[00:18:23] Speaker 03:
Well, isn't that a fact?

[00:18:24] Speaker 03:
That's a factual determination.

[00:18:25] Speaker 03:
There's law that's applied, but here what you're arguing is, well, I'm just going to do a better job next time and I'm going to put in more to show the nexus.

[00:18:34] Speaker 03:
You don't get just a do-over about that when it's like if it was enough there and it doesn't show prejudice, then we don't

[00:18:43] Speaker 03:
We give deference to certain inferences or certain factual findings that a court that is being reviewed has.

[00:18:53] Speaker 03:
I hate to say a lower court because that sounds rude, but the first stage court.

[00:19:01] Speaker 00:
And, Your Honor, I want my client to have the opportunity to make those arguments.

[00:19:07] Speaker 00:
And it's that opportunity that he was denied when he did not receive the notice that his appeal had been dismissed.

[00:19:12] Speaker 00:
That's really what this comes down to.

[00:19:14] Speaker 04:
The other issue that is troubling me a bit is that you seem to think that if Rivera Valdez applies, you definitely get what you wanted, which is the reissuance and the chance to appeal to us.

[00:19:25] Speaker 04:
But I think Rivera Valdez says only reasonable efforts need to be taken.

[00:19:30] Speaker 04:
And I'm not sure we've had a chance to develop the question of what those reasonable efforts would have been in this case.

[00:19:37] Speaker 04:
when you came in and said, I just win, is that right?

[00:19:40] Speaker 04:
It doesn't seem like that's right.

[00:19:41] Speaker 03:
It seems like everyone's saying that here.

[00:19:45] Speaker 03:
And we don't get to just say, well, who wins?

[00:19:48] Speaker 03:
We have to dig in a little bit more here.

[00:19:52] Speaker 03:
And that's what I think, in fairness, both of you had just said, well, we just win.

[00:19:59] Speaker 00:
Well, Judge Callahan, if we don't take strong positions, then we're not really doing our job.

[00:20:02] Speaker 00:
Well, I know.

[00:20:03] Speaker 03:
Of course you want to win.

[00:20:04] Speaker 03:
But it's helpful to give the court a path to do that and to wrestle with, like, for example, to wrestle with the issues that the government has to wrestle with and wrestle with the issues of prejudice in terms of what you have.

[00:20:17] Speaker 03:
But I think we clearly know you both want to win.

[00:20:19] Speaker 03:
No one will argue with either of you that you didn't say you wanted to win.

[00:20:26] Speaker 00:
Regarding this particular case, Your Honors,

[00:20:30] Speaker 00:
We can't lose sight of the fact that they had my client.

[00:20:35] Speaker 00:
They had him.

[00:20:36] Speaker 00:
They knew exactly where he was, and they knew exactly where he went.

[00:20:43] Speaker 04:
Well, did they?

[00:20:43] Speaker 04:
I don't think they had his new address at the time.

[00:20:46] Speaker 04:
Thank you, Your Honor.

[00:20:49] Speaker 00:
It's not in the record.

[00:20:50] Speaker 00:
That is absolutely correct that it's not in the record.

[00:20:51] Speaker 00:
It's a form I-220, and that's the order of supervision.

[00:20:56] Speaker 00:
That form requires

[00:21:00] Speaker 03:
an address where there is... No, I mean the petitioner always has an obligation to keep the government notified of what the address is.

[00:21:10] Speaker 00:
Yes, Your Honor.

[00:21:11] Speaker 03:
And your petitioner, I assume, is intelligent enough to know that he wasn't in custody and he was somewhere else.

[00:21:19] Speaker 03:
But on my understanding of what you're saying is that he was relying on that everyone said, hey, we've got you.

[00:21:30] Speaker 03:
We don't know whether that's the truth.

[00:21:32] Speaker 00:
And I'll be perfectly honest with you, Your Honors, until this case, I never looked before at that little box that says, note, you must file a change of address within five days.

[00:21:47] Speaker 00:
I literally had never read that in almost 20 years.

[00:21:49] Speaker 03:
Well, you know, sex offenders always say that they never paid attention to that they have to let the court know where they are either, too.

[00:21:56] Speaker 03:
So sometimes when you have a certain status,

[00:21:59] Speaker 03:
you have to keep the court notified.

[00:22:00] Speaker 00:
And so on remand, I guess that might be a question of fact for the board of whether the steps he took were reasonable, whether it was reasonable for him to rely.

[00:22:09] Speaker 04:
Or whether the government had reasonable options that weren't pursued.

[00:22:13] Speaker 04:
Both things, right, would be under the scope of what Rivera Valdez says we should look at.

[00:22:18] Speaker 00:
In theory, yes, that's exactly what they should be doing.

[00:22:21] Speaker 04:
And so your flat assertion

[00:22:23] Speaker 04:
earlier that there's nothing to look at here, you win, is not really right.

[00:22:26] Speaker 04:
There's something that needs to be considered under Rivera-Valdes.

[00:22:29] Speaker 00:
There's something that could be considered.

[00:22:31] Speaker 04:
So why would it not have to be considered?

[00:22:33] Speaker 04:
Why are you saying could?

[00:22:34] Speaker 04:
Why are you pushing back?

[00:22:36] Speaker 00:
I'm pushing back, Your Honors, because the right to file an appeal is encoded in the statute.

[00:22:44] Speaker 03:
But you... Okay, but now you have Rivera-Valdes, and it says that you have to look to what the government should have done

[00:22:52] Speaker 03:
if there were reasonable steps.

[00:22:54] Speaker 03:
I thought that not doing it, you know what I thought, in the dissent, but then I'm going with the majority.

[00:23:00] Speaker 03:
So why aren't you going with the majority?

[00:23:01] Speaker 03:
And the majority says the government has to look to what reasonable steps they could have taken, and we don't know what that would have been here.

[00:23:09] Speaker 04:
Because the agency hasn't looked at that yet, right?

[00:23:12] Speaker 00:
Correct, Your Honor, but they did know that notice was ineffective.

[00:23:17] Speaker 01:
Okay.

[00:23:18] Speaker 01:
But the next step under Rivera-Valdez is they have to take reasonable steps and that's what we don't know what they knew or should have known.

[00:23:27] Speaker 00:
Correct.

[00:23:30] Speaker 03:
So I think we're going in circles here.

[00:23:33] Speaker 03:
We're not going to get that admission out of you, that's clear.

[00:23:37] Speaker 03:
But I know that both of you recognize that we have the ultimate authority to decide this case, which we will do.

[00:23:42] Speaker 03:
And I think we've considered both of your arguments here.

[00:23:45] Speaker 03:
Thank you for the extra time.

[00:23:46] Speaker 03:
Any additional questions by the court?

[00:23:48] Speaker 03:
All right.

[00:23:49] Speaker 03:
Thank you.

[00:23:49] Speaker 03:
All right.

[00:23:51] Speaker 03:
This matter will stand submitted.